good morning mentions the court i will probably reserve three minutes for rebuttal and generally this morning i want to focus on the issues of move this and whether this case is properly before the court and then the department of justice was going to focus on the the merits of the case and what tests should be applied in this case and indeed and in any case that deals with speakers in public been very discouraging news as far as the numbers of infection rates in california they've been nearly doubling over the last week and yesterday governor newsome  state is going to be what he said pulling the brakes on the blueprint for a safer colony and that will result in ninety four point one percent of california's population being in the most restrict they have a specific relevance to the arguments the court will hear today on one hand response to the increasing number infections they will return to more restrictive but even mister we're pretty familiar with what's going on but what interests me here is whether or not this appeal which is an appeal from a denial of a temporary restraining order is properly before and seeming that it is whether it's now moot because the executive order that was written this is the source of the of the your lawsuit and the subsequent directives from the health department or the whatever his title is  change so that as i understand it under the current executive a regulatory scheme directive scheme you could your client could hold an outdoor can we do for you well and the answer to that is maybe today or tomorrow that total ban on any outdoor gatherings for any purpose including the demonstrations could go back into effect and because of that my clients risk it at any moment losing that right and i want to point out one fact to the court which i just became aware of  and this demonstrates how easily it is for the government to go back to a different standard after this case was briefed to the to this court  california highway patrol on their website that the talks about the permitting process for the state capitol grounds further restricted the circumstances under which some could obtain a permit such that there is a there's currently a maximum number of two hundred people for any person who seeks a permit so while the papers say that there's an unlimited number for the company grounds or anywhere else that has change and it was changed without any fanfare without of a press release or anything else that the defendant the california highway patrol simply went on the website and changed the number mister spurlock and let's let's assume for a moment that that fact were in the record which is what it even if that fact were objectionable and that is even if you're kind of a two hundred person one it was unreasonable shouldn't that factual question that are still your factual question be litigated in the district court st without our reaching the merits of that well the the reason we're seeking the courts encouraged the litigants says seek some clarification from this poor as to what test should apply and that important information that important guidance to the the court and to frankly any district court as to what whether the standard changes because of the drastic nature of cope it is a really important question for the court to understand so that as these things shift and change which they're bound to do when we understand why then it will have the information that it needs to make sure that the free speech rights of people who are interested in speaking to their government about these issues will be able to to make sure that those rights are protected so let me could you clarify for room if you can in your remarks if your clients were to apply today in these permitted whatever they would be denied on what basis on the bases that the california highway patrol has limited the number of speakers to two hundred on this day capitol grounds and my client's desire to have of the crowd size of of a one thousand which you know the state capitol grounds is one hundred and forty four square acres over i think one million seven hundred thousand square feet and if people were socially distance in the way that almost all of us are used to hearing about six feet even twelve feet more than that could be yes they were not permitted but neither was any size gathering or even standing in front of one's house with a picket sign one could not leave the house because it was an exception  the standard is that if the effect of the ruling is such that it would be the same as the effect on the women there injunction then there's the right to appeal and my position is that because this standard was set where the court said essentially the court said you can't guarantee me that no infections will happen in the and therefore it's narrowly tailored enough no nothing that we could present to the court would change that because we could never one hundred percent guarantee that that no infections would occur and so we think that that standard is is off but we also think that you know what  could we have at that point to the record that the debt would possibly overcome that standard but isn't one purpose of this rule so that neither you nor i nor my colleagues have to speculate about what more the owners would have that question but i would like to reserve is some some time i will briefly say that i did not read that those remarks quite the same way i was at the hearing there was a lot of talk of settlement i cur to maybe allow us to sit down with the state and come up with some other standards and so the court had really invited us to come back in that capacity i took his comments to mean you of course could bring a preliminary injunction i don't think it's going to meeting good you have the option to go protests across all outdoor and indoor locations in california including speech against those very restrictions and it's traditional public forum of the state capital ground and not stand that's true for three reasons your honor even even so your honor i would say the the st amendment has never allowed the government to say the air shall be no risk the question here would be all substantial alternatives that allowed a baseline level of risk say i do thin making because the court has believed believe that a total ban is constitutional thus therefore anything less than half would have to be constitutional and so just to explain that a little further on that strong ample alternatives the no jurisdiction first the district court decided only the plaintiffs yarrow motion based on that very limited record this action expedited motion allow like we have only were days to submit  because of these restrictions that we're talking about were never committed to the legislation so that was a long preamble but my question is can you walk me through the rose rock factors and explain to me why in your that asked this i also i'm going to agree with you that there's a the burden is on us generally you demonstrate that voluntary decision exception doesn't apply but let me let two is the policy change fully addresses all the objectionable measures that the government officials took against the plaintiffs in the case i think that is very clear your honor if you are seventy two dollars plaintiff helpful all the district  number four is the policy has been in place for a long time when we consider moving as a means the court us into this change imposed yes your honor and this all the have been in in place for over five months that's significantly longer than the restrictions that the plane one proviso that there has been court noted which is that you're less inclined to find moving is where the new policy could be easily abandon or altered in the future and that is the problem here fight for the permit and their behavior since early june is that they haven't and when they were asked about this the extent that later events in the district order relevant eno decision was quote not the word on what's going to happen six months from now that's it page fifty four i can't think of a clearer way of saying that he's not deciding the preliminary injunction to govern the case until the conclusion of with a stronger and more old record if we have a slightly longer period of time when they're getting allowed it's a matter of fairness to this work which should not be asked well in on sensitive novel constitutional issue spread from one transmission can overwhelm the entire health care system restrictions lasted a short time shorter in fact and the restrictions the united states who's to receive the government there were five weeks of permit and aisles opportunity this so i think i think that you know as you know there are many and novel constitutional issues in this is because of the unusual circumstance i don't think that that the district court's order should be vacated but let me preface my response by saying we don't care very much because the district court order has no practical of that right and that's precisely the reason why we course had whether invited in fact a preliminary injunction or not just want to point out that in the portion of the transcript on the issue on the zero hearing the chords where he was dismiss the court said we're all going to get some guidance from the th circuit so it's it's clear to me that the district court was if not open to having this court review its ruling on the t v or even perhaps inviting that and being at the hearing it was clear the court struggled with this as we all do this is a really difficult case even for someone who is a free speech advocate i understand the risks here and i understand the concerns of the court but in reality this is not a novel case in the hundreds of years or so since jacobson the  supreme court in the th circuit have created a very dynamic and extensive way to deal with free speech issues and those  if they're applied to this case they will work so we're not really looking for a and a new ruling what we're saying is we want to make it clear that even in  longer yeah go ahead go on something else has just occurred to me during this argument and it's not raised in the forty's breeze but it's i think it's not about summary of the facts and that is that i wonder whether this case is distinguished will in some way from the total ban cases on the grounds that what happened here is that the state like the rest of the world was caught flat footed by this and them and so the state just sort of held its breath for five weeks it imposed this ban actions now are worse than they've ever been it hasn't it hasn't put the ban back into effect over now and so is i guess i'm struggling to frame this question but is there a time limited element to the way this was done we need to consider in applying a st amendment jurist well one thing that that issue raises in my mind the fact that a total ban has not been reimplemented yet and of course we don't know if it will be in future but that's certainly calls into question whether this was a narrowly tailored absolutely required them or or way to approach this so that's one thing i would say and in response the other thing that i would say is yes in times of emergencies we sometimes make mistakes you look at the care months you case you know it took us a long time to look back and say we got that wrong it's people are scared tensions are high and sometimes we overreact and this case is really about saying even in those situations perhaps more than ever in those situations what what period of time could be more important for the citizens to address their government then times of extreme crisis like this it could be the beginning of a long conversation but i thanked her and i have nothing