law when he blocked me from his official government facebook page thereby preventing me from further commenting on those and rendered all of my previous comments in an invisible nd applying qualified immunity  their actions which they reasonably believed to be lawful at the time were later subject them to the ability on the basis of subsequently developed legal don true in this case it is inconceivable as to how banning a constituent or deleting principle problem is with your statement that the law is clear no the st amendment always clear but the whole relationship of st amendment to these new media methods and closing somebody out from them or not and so seems to me clearly to be quite uncertain the supreme court  did our decision in one direction but even before they did they had granted cert on a decision which went in one direction i don't know how you can say  only allegation that we need to accept in the complaint are packed right correct we don't need to access legal allegations that would be a question for the court rice as you say a car ran through a red light we would then make a determination about whether there are laws against running red lights right or acting on it so if you allege that there is a law against running red lights we don't have to accept that we do that research for ourselves so i abrasive yeah but i don't know why when i'm starting to talk i lose everybody can you hear me yes your honor yes ye that right now i'll try to follow the clerk we're dealing with viewpoint based discrimination all right the reason why i was blocked from age is because i was protesting an area bigoted and racist and yet he chose to block me preventing me from protesting those comments while allowing the other commentators to continue to come in and having their comments visible to everyone for everyone point to which tells us that as a matter of law as of this as of the time that the defendant act so that he would not be allowed qualified immunity i mean you're telling us this and you may be very persuasive but we're is very law that is clear in this court has been very clear honor this supreme court has recognized that state actors or government officials are not to engage in viewpoint discrimination access and when he restored actual is accessed he reasonably believed that he was also restoring those four comments because that is just some intuitively i would assume based on the word restore now it turned out those comments not apply so we have to decide on moot now should we do anything with these comments your honor this senator has had multiple opportunities to restrict actions access but he has not done anything need not go by only on his words we also can just see his actions as soon as this complaint was filed the senator unbanned were actual and has done nothing to restrict rochelle's activity in fact even before night came down here on ba before the night decision came down he was not engaging in this conduct so there's no reason to think that the baker would prompt them to reengage come reinitiate this conduct the only reason that those four comments remained hidden is because he recently but mistakenly believed that when he restored actual access those comments would also be restored no one knew that those comments remain hidden to very late in this litigation when welshofer pointed out well actual didn't even know this actually had a deposition and i'm still just stuck on the vic a tour wouldn't a public official for ten and including a set the senator potentially be in a position to say well there is no clearly established law anymore so i'm really free to take run the risk and i'm going to block these comments that i find particularly odious to me that when he had still have a qualified immunity defense descender believes that he is still bound by that decision because that's the last he submitted a reply decoration stating that he will not reengage in this kind of and he has not said and that he is going to no longer abide by that he remains committed to it and so he sees no reason why he should reengage in that conduct he were to get irate about some posting and blocked someone tomorrow he would be violating a clearly established law and would not be entitled to a defense of qualified immunity is that your position  position is that he remains committed to his reply that the ratio will not run that risk from his perspective night to still remains on the books and is binding us to him and that's because of the affirmative statements that he's made to this court and to this report now these four hidden comments with respect to qualified immunity i think is the real crux of this case it seems like all the parties still is there's a system and somebody makes a statement but both gives i believe it to be such that i will not makes me these comments again or do these things and then the person does it those qualified immunity apply in that situation or is qualified immunity lost because of the that's a that's a difficult question your honor i think and in that scenario qualified immunity would still apply but i don't think we run the risk of that happening here the senate remains committed to his declaration and will not interact with facebook in the way that he was interacting with it before well qualified immunity might still apply it might be that he's in contempt and that there would be other sanctions of let me see if i can articulate what i think your position is and you tell me if i'm understanding it roughly correct way maybe i don't want to put words in your mouth or tell me if i have it right the senator's declaration as a subjective manifestation of his own intent is relevant to the district court's decision about whether an equitable injunction remedy in that particular case is warranted but because subjective intent of a particular person is not relevant to a qualified immunity analysis it could very well be that a hypothetical public official in the wake of a color of night might be entitled to qualified immunity but that would have no  they went ahead and i don't know are the comments on twitter facebook but that would have no bearing on whether an injunction to the issue here because that does turn on subjective tracks of a particular case that my i'm paraphrasing somewhat but i'm trying to see if that captures your argument yes your honor that captures my argument thank you for that helpful persecution and to if i may just briefly address  comments that remains headed were those if the senator were motivated by some viewpoint it's going to tory purpose to suppress what actual views he would have had in other comments but he didn't also actual could have requested those same comments but he did not and again as soon as  made him aware in opposition to the most motion to dismiss that those comments remain hidden the sender and it them also a separate point is that right to the source decision and night not clearly established a law with respect to i ask you about that because if we're about qualified immunity again we're not talking about the idiosyncrasies of one another person's knowledge of we're asking whether a reasonable person or a person in the senator's position could have been reasonably expected to know that they were violating clearly established law so you've got the question of even the night with locking people you have the additional riedel question of whether hiding and hiding previous comments would be covered by ny putting that aside is there a question about whether given that you didn't know and apparently the senator didn't know that facebook has this strange distinction between blocking and hiding does the record support an argument that a reasonable person would have nevertheless have been expected to know that when they are blocked they somehow were failing to unhide and you didn't know that either your honor the senator on your part right that your speech was restricted but now we have the secondary question of whether a person in senator position could have been reasonably expected to know that were actually restricting your st amendment rights that they would have been expected to know they were in fact hiding your previous comments and that's a question i'd like you to address your honor as this court stated night comments so in other words if i do something that blocks your speech but do not know that i am doing so emma leading the st amendment that is if without meaning to turn off a microphone and you are not able to speak intentionally did it but for some reason was not liable for vet if it was that would be that but then he turns it back on but we've out his knowledge and knowledge that he reasonably would not have it doesn't turn it all the way up so he turns it up only to