issues it would like us to focus on in this argument because there was a broad range of issues that were before the court so i'd like to just start by listing those issues we were law and we didn't ask you about washington slap law because that was clearly wrong we have we have i just want you both to know that we have case law specifically saying that washington slaps law does not apply or states slabbed law does not apply to a federal action so we are proceeding on that assumption and it has they have consequences for the case go ahead thank you so the answer to that doctrine should have been analyzed and applied and the district court provided no analysis on the issue of the sham exception which i believe i did raise in my briefing issue number two that the court asked us to address is whether ferguson adequately pleaded the requisite action to state a claim under section one thousand nine hundred and three my answer to that is yes and if not i should be if the court finds that my pleading applies to a claim under federal law in federal court or has been or should be incorporated into federal common law and i believe the answer under wallace vs spencer to the st part of that three part question or issue is no the e l c two point one two should not apply to a claim under federal law in federal court and part two of that question whether it's been incorporated or should be incorporated into federal common law or has been if i'm understanding the court's question correctly and i'm i'm a little fuzzy on it but i believe that that is what the north pennington doctrine and the case law that has  that has grown from the doctrine i believe that is the application of federal common law to to the claim that mr wade has a right as a petitioner a st amendment right and i believe that the the case law protects his right but he is not absolutely immune and this has been a very convoluted case the background i believe is relevant to a discussion of whether or not my whether or not the two part  my my litigation with mr wade is relevant and it was also fairly convoluted so if the court has any questions about that background and what has preceded you know required us to be here today we are just isolating what is the petitioning activity i think st of all going back to whether whether his petitioning activity is protected at all under the nor pennington doctrine is is a question for the court if we take what is his petition activity st of all if we're looking at his petition in activity as only his his complaints to the washington state bar association about me then  that's one type of analysis but if we're also looking at the other activity that he has engaged in throughout this litigation then that's thousand and eleven april two thousand and eleven in an underlying actually two underlying cases what was going on right then was that i had been the attorney for several years on my own in a civil rights case an employment discrimination case representing five female managers against the safeway corporation and i was suspended from the practice of law after  like a several years of being under investigation by the bar association and appealing the matter to the supreme court on february rd two thousand and eleven i was suspended mr wade was not representing me at that time  i took my ninety days and while i was away i had co counsel handling the case and for i actually was to return for my ninety day suspension i became alarmed by some information i had about what was happening and i contacted mr wade and he advised me to immediately file a based on the situation as i described it to him he advised me to immediately file this and they sent a limiting look to the complaint in terms of what the complaint was about and the complaint is specifically about the unlawful george activity  is well i think the other petitioning activity other than following the bar complaint which so mr wade filed several he filed a bar complaint against me and then he filed several he kept writing to the bar association and stating to them as a factual matter that i am mentally ill and that i should be disbarred immediately investigated and just part of media at lee prior to  that complaint that he he does not deny he filed there was a a an anonymous complaint that was filed and that anonymous complaint was comprised only of a declaration that i had submitted during our litigation my litigation question is how does this helicopter the ship exception are pending right well it's whether you define i think the analysis depends that we apply under  i case depends on whether you look at this as one act one act that he did of filing a bar complaint against me or whether you look at it as repetitive harassing activity and i know that i'm the one that the district court found to have been the harassing party here but that is not the case as a factual matter there was in addition to the fact that he initially on december st of two thousand and fifteen he insisted that my lawsuit against him and state court be dismissed on them without prejudice and i opposed that because i wanted to go to trial i wanted my jury trial i wanted my day in court and that is all that i have ever wanted is my day in court before you finish or are you at some point because a lot of what you've talked about way because my allegation is that the defendant wade initially initiated maliciously and based on false information he initiated this complaint the bar association and he followed up by continuing to urge them to disbar me and the reason that he did that was so that i would not get my day in court in the state court case i would not have that characterization of  complaint seems to run quite against the state action and why do you say that because you're saying that he had problem is that he went to the state bar and he had reasons to  be attacking you and so on but what does that have to do with straight action what's well because it is this russian state bar if you do it well there his complaint was meritless objective lee meritless and the bar association months and then it was only when mr wade asked them to to defer the investigation after i filed a complaint against him that the bar association immediately  granted his request to defer and then to give the appearance that there was fairness that they were treating us fairly they also at that time after eighteen months of investigation they also deferred my claim my to the  you know that's that's why i'm alleging that there is a conspiracy between no i do not know city nobody could reasonably explain that and i i look to the there's a case that sounds very much like mine factually housing hotel from being converted into a residential place for mentally ill or the homeless and the opposing side who wanted to build the housing filed a complaint with hud for discrimination under the f h a and the f h a agents who in san francisco the local agents investigated for eight months or something and the court said that that was unreasonable and that that chilled the st amendment rights of these of these citizens who were protesting the housing the the  and the citizens also filed a lawsuit in state court and the court found that their lawsuit was not meritless and therefore you know the activity of hud even though the agents the court said if you you know if we don't just look at whether they they prosecuted these people we there are other things that can chill speech intimidation tactics and you know even if the agency never takes the action that is threatened and based on my prior i don't i don't know you know there's quite a lot of information in the record about my prior experience with the bar association  is not doesn't fall neatly into a category of state agency as some would or as an executive agency it it's a hybrid it's a swede generous if you will  it's partly a a club an association and those who participate in that club who are at the center of it are appear to be decision makers sometimes and appear to be having an effect those things in my complaint with the allegations the allegations are that and i know i wrote to the bar association and i told them the so when the st complaint was filed against me anonymously it did not there was no allegation it was my declaration my own declaration and it arrived anonymously the bar association and under that case i just cited i would say so far we don't have him hooked up to that so it has to be the well don't you have to accept circumstantial evidence is pretty strong december st the day that the complaint was sent in the anonymous complaint that was the same day december st two thousand and fifteen was the same day that i refiled  the lawsuit that mr wade asked to be dismissed without prejudice and so then i received this notice from the bar association that i was under investigation at the time that i responded to that i notified them that i suspected that it was mr wade and that he was improperly using the disciplinary process to burden me knowing that i was doing a great deal a great share of the work in the lawsuit against  him and i did have representation in that case but you know he knew that that being investigated would burden me and if he did it anonymously he wouldn't have to have a light shined on his own behavior because as my attorney he engaged in criminal behavior  but it's all right you're now three minutes more than three minutes over time you look at the clock ok that's and was you've exceeded your time i needed my time doctrine applies is that it most probably does apply and the sham exception certainly applies and i do believe that i have pled the facts that support mr wade's abuse of process not only with the bar complaint that he filed but using every tactic that he can to avoid and to delay my jury trial in our state law litigation that's what this is all been about for four years is not letting me have my jury trial thank you thank you ms for years just reliving the interview him well you for five minutes this raises the perennial question which has been bedeviling district in the circuit as well as course throughout the country of when an injunction against libel is permissible and one way of thinking about it is that under this but this injunction while in some respects narrower than a criminal libel statute actually fails to provide some of the procedural protections that even criminal libel law would provide one exams in the parts that i'm most focused the focused on the brief this miss ferguson is enjoying from publishing again the same were effectively identical statements that is based on a finding by the district judge by preponderance of the evidence that her statements were false whereas in even a criminal libel persecution there would need to be of proof beyond a reasonable doubt that those statements were so as a result it's possible that mr ferguson if she were to repeat these statements would end up in jail for allegedly libelous statements even without any proof beyond a reasonable doubt that those statements were in fact liable and that's in part because of the collateral bar rule because she would be unable at any at any criminal contempt proceeding she would be unable to argue that the if indeed the court is correct that there is something that is more troublesome about prior restraint which the supreme court has said often although i knowledge it does not elaborate at the explanation for it it has to be because of the procedural  limitations of the injunctive process and one of them is the lack of it's also because once iowa is thought it was because once people speak they've spoken the speech is out there and punishment for it even my recollection is j constitutions they say something like you know people can say whatever they want being responsible for the damage for the injury cause thereby there is some underlying concept that the problem is not getting the speech out to begin with prior restraint elevation that that's that's really the concern your honour's the supreme court ticket in kingsley books versus brown an injunction in the threat of criminal punishment both tend to chill  speech and both of them also ultimately only operate after the speech is said because even if an injunction is issued before initial publication it's it'll only be enforced after the initial publication of list is like a seizure of the printing press so  think that if the injunction were changed to say mr ferguson miss ferguson excuse me is enjoined from libelous lipan but publishing again so that at the criminal contempt hearing there would have to be a finding by a jury if there is a jury present but in any case i just wonder why it needs to be in the injunction your honor i think it's in part because of the collateral bar rule that if ms ferguson were to repeat the statement then she would be acting on peril of the judge at the criminal contempt hearing say nope all that needs to be proved is  re publish the same statements there's always that she could come in and bring in professor volokh and he could say well you can't read it that way because if you did have constitutional problems you should read it and repeating obviously your honor i appreciate that i know that were to happen that that is what i would say that hearing but that would offer no assurance to ms ferguson or to other enjoying parties that are in that are in her position because then the question will be at the criminal contempt hearing will the injunction essentially have this implicit term added to it for injunctions it seems to me especially important to have these terms be explicit so that it is clear to the regulated parties exactly what it is that they could be thrown thrown in jail for for  your honour's my time is off but if there are no further questions thank you thank you months that's not true the bar didn't proceed on that she never responded to that the the march st two thousand and sixteen letter she has never responded to the merits of that the so she wasn't investigated for eighteen months and in the caruso case and i apologize i should've brought it with me today the complaint she filed in the caruso case allege that the bar had discriminate because they opened an investigation relative to her but they ignored her disciplinary grievance against me that was untrue this ferguson later filed a declaration in the caruso case in which she admitted you have an argument before us and you're not i think i'm i promise you i'm going to get there i promise you your honor this is been a rough eight years i have been a i didn't have anything to do with sending mr ferguson's self drafted publicly filed dekker declaration about her mental problems fee award is that right descriptor and also ten thousand dollars that came out of the washington state slap case at the end and this you can tell me how that statute possibly applies which i don't think it does that much has to be reversed is that right no that's absolutely wrong really why we have a case law that specifically says that i think it as certainly logical that washington state doesn't honor that's not correct the nine hundred and eighty three dollars the f i slap statute counterclaim was based on the fact that miss ferguson sued me for having litigation dispute that they defer the disciplinary matter the party has taken no action if this was a conspiracy your honour's it was a singular unsuccessful conspiracy the bar has taken no action against her and it isn't as though i haven't tried yes i sent letters to the bar and they refused to proceed i sent letters to the bar because miss not me asked to defer matters and the bar agreed so this idea of being investigated for four years is not consistent with the record it just didn't happen conflating two different things but your honor really addressed that in the sosa case in fact what you did is you said you weren't going to address it in that sosa case in footnote three and in that case the question was whether that the state court judgment on the anti slapp cas can't be a sham your honor for two reasons st we had a trial miss ferguson stood out in the hallway but she had a lawyer there and he cross examined me i was on the stand for most of two days and we had a trial that's something else i mean about and about the truthfulness of her assertions against me right about her factual allegations of how i'd been anything but a child of god and those allegations and the reason we went forward with the trial was because i wanted to have a trial misfortune talk st and talks about wanting to have a trial she don't want to have a trial every time we have a chance she disappears so we wanted to have a trial and i established with contemporaneous documentation under cross examination that all these allegations she's making about  false they've never been true she makes them up so well where does that leave us with your pelican eyes and the trial was about specific things that she said about you can i just step back a moment your honor let's stop a moment does this court want that federal courts to inject themselves in the st instance in a state court bar disciplinary proceedings or any other professional disciplinary proceeding before the bar or disciplinary body has even taken it any action any action whatsoever lawyers are women what is the defect in the process there is no defect the bar took no action there is no deprivation so under nor pennington does the court really want to say we're going to determine whether that marguerite once was meritorious or whether it was a sham even though actually the case law says that's not what the  six and specifically symonds vs city of sacramento and price vs hawaii and your honors in ms ferguson's prior case the court already determined that the washington state  association procedures did not deny st and th amendment rights and the court recently in the case of involving the believe it's gruber versus oregon state bar reached the same conclusion so i'm trying to understand here four thousand nine hundred and eighty three to apply my understanding is and i'll give you  r the deprivation must be caused by the exercise of some right or privilege created by the government or a rule of conduct imposed by the government and that's a two part test it's discussed in collins versus woman care by this court and the chart parsing charged with the deaf aeration deprivation must be a person who may fairly be said to be a government actor the court adopted that test basis i know you do it and i appreciate that and i'm trying to make a good faith argument because i i must but my concern is actually with that investigation and yes i did send some letters to the bar subsequently because misc ferguson kept requesting to furrow based upon the pending litigation and i responded to that every time that one of the washington courts issued its the decision terminating some aspect of that litigation that has nothing to do with conspiracy so if if a person is exposed in that manner then how does this court propose to protect my st amendment right my st amendment right to petition the disciplinary process without being caught becoming subject to extortion by people like sandra and make no mistake about it she found her disciplinary grievance a month after we declined her settlement overtures and secondly why would anyone cooperate with professional disciplinary authorities let alone step forward to initiate disciplinary grievances in the future knowing that they are then subject to being sued in federal court and how do you reconcile exposing an attorney who cooperates with a disciplinary point three a the washington state bar association asked me for him from ation they had an open investigate an open investigation i did my duty as i saw it as an attorney as an officer of the court that's all i did and with that your honors as i do ask you to read my my brief respond in a supplemental brief responding to amicus my concern is that this court not place someone else in the same position this is been years ferguson my staff is instructed to call the police if she shows up as is my wife we are in fear of what she will do next asked the court to protect us thank you so much thank you mister we appreciate the arguments of both pro se counsel because we know this is one minute of or above ok i did my best to when i found out what the focus of the argument was obviously i disagree with the court's i ask you to reverse the court's decisions denying my motions for summary judgment us that were to look at the context of the impact of mr wade's petitioning activity the context in which it occurred and then the nature of the activity the context here is a judicial proceeding i think that's pretty