would like to preserve three minutes of my time for a bottle or there's a lot of complexity in this case and that complexity can be thought of as arriving from a number of cross cutting cleavage is but at stake here are essentially two policies as they apply to two groups of plaintiffs one of those groups being bifurcated between high security good mates and ordinary security or general population inmates and how those policies applied before they were modified which is to say the policies that were under consideration when the district court granted partial summary judgment in favor of the defendants and then the policies after they were then twice modified between summary judgment and final judgment during the course of the litigation when the remaining claims of one of the inmates and all of the journalists were dismissed as moot now our contention today is that the district court erred twice first to the extent that it found the policies one content based with respect to one group of it rates but didn't see that as an impediment to sustaining their application as to another group of inmates and thereafter dismissing the claims of those in it's that argument on that and will elaborate of them into this pretty simple it's one group of policies they were adopted as a unity they were advanced along the same bases they were defended in the same reasons or for the same reasons and in each case unusually they were defended in part based upon the content based animus underlying them the second error in the district court was that the district judge then with respect to the high security inmates dismissed their claims on summary judgment which reflects the consideration that no reasonable finder of fact could have considered that those policies violated the remaining three standards of the remaining three prongs beside content neutrality that are to kill aided in the one bird versus abbott and turner v safely namely that the policies admit of adequate alternative channels of communication are efficacious in that they actually rationally serve a legitimate penal interest and are not serving that interest in a way they could be more easily served by an easily implemented or readily available alternative so those are all the mistakes that we see at the summary judgment level those policies changed during the course of litigation and we're going to argue that they did not change enough to justify the dismissal of the remaining claims just a very clear on or so on appeal here getting this case and sort of the the more general law with respect to what people officials and cannot do and it strikes me that there this is not speaking with regard to any case law this is just speaking theoretically based on general knowledge it seems like there ought to be authority given to prison officials to limit the means of communication particularly when we have a very inflammatory subject potentially and that the means would not go out to the content i mean for example if you could give an interview in writing or you know that might be ok but prohibiting the in person interview might not be ok there are i think three responses to that of course the  inmate plaintiffs who were participants convicted of offenses in connection with the lucasville riot twenty two times in their complaint and for three pages in their summary judgment motion as justified by the impact that those would have on outside is that like any sense at all it does and the second answer that i would give is and the supreme court i think in turner said as much sometimes the identity of the people who have been selected for being beyond the pale of interviewing can be used as a proxy for content and that's why we have to inquire into the fit between the malady that the state says exists and the medicine that they have prescribed and that's where we find the state if we take the content aside and we believe that the content based argument is very simple the judge should sarkis concluded that these were there was a content animists in these policies and turner says that the policies must be adopted in a content  some more some less but the seem a quote non of a legitimate policy is that it is content neutral and so when the finding is that the policy isn't about that for content neutral purposes that should end the inquiry that shouldn't allow him to say but ok it can apply to this group because to apply to this group is to say well safety considerations overcome content but they don't the safety considerations are down approx two three and four content is up there as  got to be checked before you go down the list the rest is contingent on content and a content based motivation is fatal and that's where it should have stopped with respect to sustaining them there should have been no summary j problems the big wheel theory is what is being articulated here if we didn't meet is interviewed somehow that confers celebrity on the in an inmate and celebrity creates leadership and leadership in the hands of somebody who articulates the wrong message can lead to violence that all sounds great superficially but if you look at the mechanism by which this supposedly happens nowhere in the record is it supported it's true that it was found as a matter of fact on the record systems more than fifty years ago hardly carries the substantial burden of showing that this system today were choir's the sort of strictures and there are all sorts of things in the record that indicate that the connection is too a remember that what we're doing here and this is where we i think we could butler versus gate somewhere in our brief or the proposition of burning of burning the house to roast the pig is to prevent these disruptive messages from getting back inside prison walls what these defendants are doing is preventing them from ever being articulated out into the public square to begin with we're not talking about inmate in make communication we're talking about inmate two world beyond the prison walls which is the supreme court held implicates a very different and less security sensitive set of concerns then does intra prison communication so under their theory i interview an inmate i broadcast that it trev you it goes out into the world at large somebody records it somehow finds its way back within the prison where if an incendiary message has been articulated and if by virtue of having given the interview on camera as opposed to through a telephone interview in having happened that way or in any other prison system they talk about or you proposing policies and procedures to be implemented by the prison or governing  the prison is a very direct approach to you following here and very directly i think we need to bear in mind that there are only two short of restrictions here these inmates can talk to radio reporters via telephone they can i see my time is almost up  is that there may not be face to face contact with this particular group of prisoners the second is that there may not be video recordings or audio recordings made in person of these prisoners so there's no prohibition on that happening over the telephone those are the justifications that the supreme court says the state needs to justify in the four ways articulated in the one burg those particular justifications have to add something extra to the security dimension but they haven't shown the doe's move the ball forward at all and this matter of fact as we point out in both our briefs much of what they do viz of either regulations demonstrates quite the opposite that they leave many doors open to the same sort of mischief which under inclusiveness suggests that this is in fact a proxy for content and all begin as an effort to do what they say in their brief frankly they've always wanted to do to prohibit people from hearing the message of those lucasville convicts and for those two light of this we want to move the policies have been changed thirteen times since they were implemented twice between summary judgment and final judgment dismissal twice in the last six months of the case which indicates a litigation based motive rather than the sincere and genuine motive for the policy change the policies were changed to remove two things consideration of victim impact and an inquiry by the state into the nature of the interview but what remains the deny for any reason whatsoever which is a first amendment matter is planetary power if the problem complained about as it was complained of paragraph sixty two of the complaint is that there is unfettered discretion and if the remedy asked for is to both eliminate unfettered discretion and to require the state as a way of capping their discretion to identify and articulate the bases for which an interview was denied and permit  which we didn't get so it wasn't mood having plenary power is basically reserving the whole the ace in the hold they give away some of their high cards but they keep their ace and on the record in this case where they had bit the based on content for twenty years they systematically denied interviews to people convicted in connection with the lucasville riot when they rescind those policies a week and a half or two weeks before a pretrial filings are d progress prior to that change them after summary judgment showing the writing on the wall and when that's done by the feel of a single administrative official who with the stroke of a pen can change his mind  randolph institute which remains good law notwithstanding the portion of it that was overturned seven weeks ago by the supreme court remains good law with respect to voluntary sation they have not carried the very heavy burden of demonstrating signs yard signs or campaigns or even a demonstration across from the courthouse the content neutrality is not the touchstone when it comes to inside a prison ye on the basis of their implications for present security and that's what judge sarkis found in this case in this case judge starr has held that we're restrictions are applied uniformly as system wide rules and prisoners retain sufficient alternative channels of communication prisons can permissibly restrict interviews with priests trick to population inmates now opposing counsel talked in terms of pretext of all currently there are three or at least when this motion for summary judgment was filed there were three hundred fifty eight inmates in restricted population at o s t p the ohio state penitentiary only for us who were present at lucasfilm the other three hundred fifty four are restricted population and mates were there like these four because they killed a car they repeatedly assaulted a car they tried to take over a prison they were gang leaders or they previously tried to escape these are the most dangerous inmates in the entire prison system in the state of ohio all of them are subject to the same the very same media restrictions as are these for restricted population in minutes and that's  you given the gravity of the competing arguments why shouldn't just august that this case go to trial to examine it's it's cited in our brief at record thirty two page two thirteen and page two twenty nine and if you look at it at that video it has  and their forty four prison employees still employed by o t r see again who were present at lucasville none of whom were interviewed or have been interviewed by these  if you look at if you look at the captive video on netflix what shall see is a guard who was traumatized by the lucas  talks in terms of the fact that he went back to work after hundred twenty one days that he was not certain he could go without trying to seek revenge on these inmates and yet he did it he was able to go into the prison and he was able to do is job professionally now what our expert professor berman stated was the prospect of a recording of infamous ohio prisoners discussing infamous rioting surely must send a chill down the spine of every prison official charged with keeping order inside a prison that's a doc fifteen page forty eight under turner the third factor is the potential impact on prison guards and prison inmates presently at ohio state prisons we have forty four guards and forty eight inmates who were immediately impacted by lucasfilm they were there and so to talk in terms of of how should these should should media access be given to these prisoners and all the prison has to concern itself with this what happens outside the prison disregards these forty eight inmates and these forty four guards who are still inside the prison who will also be impacted whether the other three hundred fifty four inmates oh s p previously inside the prison not outside the prison but inside the prison committed violent disruptive predatory or are serious threats to the prison itself because they've committed murder they've taken hostages they've repeatedly assault of prisoners or guards they've attempted escapes they've attempted facility takeovers so when you look at the case law whether it's thornburg or hammer or this court's decision in brown versus johnson you don't have to have you don't have to give the prisoners restricted population prisoners the opportunity to take over a prison or foment a riot or create a situation that just blows up this is a closed environment containing the most dangerous inmates in all of ohio you don't have to wait for that to happen before you can take measures to stop them and in prison professional judgement the red line is drawn not making direct phone calls not at correspondence the direct red line is drawn at in person media access restricted population inmate gets an interview anyway so whether or not the prison officials have quote unquote unfettered discretion is irrelevant because no restricted population inma circumstances where i seem to be understanding you're saying that's inmates is in general population it does come into play but it does come into play not for mr skate's it comes into play for the media representatives so in other words there's no content regulation here whatsoever what the prison retains discretion for is to look to make sure that these are media representatives but they have authentic credentials they look at the credentials there's a definition in the policy for credentials there's a definition in the policy for media representation and the well on the face of the problem there's no problem but if the policy of arises unf administrator staff unfettered discretion to limit first amendment rights they're bound by the constitution to limit restrictions and first amendment rights to those that are reasonably related to legitimate  who are charged with and trained in the running of the particular institution and so without that discretion the prison would have no ability to stop i quote unquote media representatives from coming into the facility if you previously tried to extort a prisoner or tried to pay a prisoner for an interview or tried to   this policy is used to protect and maintain the security of the person against attack interfere sabotage or to prevent mitigate or respond to acts of terrorism it's not unfettered discretion it's bound both by case law by the constitution and by the prison officials professional judgment show with regards to whether or not the case is moot he talked about the fact that the nature of the interview and victims issues that victims issues that could or would present a concern were eliminated from the policy he then said that it was the policy was changed twice before it was often only in active well in the brief that the court will see that the procedure by which a policy is changed that in two thousand and thirteen o d r c began its policy changes with regards to security that media policies took a backseat until the security policies were solidifie that in march of two thousand and seventeen o d r c turns its turn its attention to the media policies that there were meetings and marks a problem may june july regarding the media policies before they were automatically enacted that there were provisional passes that were floated and they were floated for us take holders to make comments on now with regards to the changes to the media policies determined that it didn't need victim impact with regards to restrict the population because those population inmates are going to have an interview anyway same thing with nature of the interview nature of the unit interview is irrelevant for restricted population inmates because those inmates were precluded from media access with regards to general population inmates ody r c considered the suggestions made by took those into account took bystander stakeholders comments into account and determined that in general population inmates do not pose the same inherent security risks as two or stricter population inmates and for that reason they decided they could eliminate the nature of the interview which hit by the way had never been used by o t or c officials to restrict media access to any of  but they could eliminate nature of the interview and they could eliminate the concern for victims issues because security and safety was not such a high level with regards to general population but what they did too is they added another paragraph with regards to the media policies regarding general population and what they said we want  one point or thank you and what that policy says is that if you are and general population and would be in our stricter population but for the fact that you have a mental health or i have five points on rebuttal all try to move through them quickly the first is let's dispel with this fiction that content neutrality is not required of these policies if you look at thornburgh for policies which restrict the access of the media to prisons and the access of inmates to members of the media those policies are governed by thornburgh and for ninety us page for fifteen the court specifically says must be justified without regard to content that's absolutely unambiguous now let's talk about the unfettered discretion for a minute because we hear about terrorism and sexual relations and paying for interviews in the introduction of contraband a whole parade of horribles that might happen and justify the survival of this catch all provision and then ms wearily tells us these policies aren't unfettered their cabin by the laws of the constitution i submit to the court that every policy of every sort that has ever been invalidated by a federal court because of violated the first amendment was also so cap and but it was only brought to book when it was brought to the courts you don't convince me more here i'm sorry judge i just official from putting anything into that category of other that they please if it's going to be factored discretion the factoring has to happen within the bounds of the policy of course they're fettered by the constitution but that judgement needs to be made first and made incumbent upon the licensing or decide to be official that doesn't happen here now they tell us that one of the prongs of turner is that we have to consider the degree to which this impacts prison staff and i agree but another product of turner is the availability of readily easily implemented alternatives if the concern is that these statements and the incitement is going to find its way back into the prisons note that they already have a system in place for screening as contraband any such materials and that they control access through the mails and through any electronic  all media coming into the prison so in order to prevent this stuff from getting into the prison all they have to do is enforce the rules that they already half rather than throttled the creation and the dissemination into the public square of every face to face it recorded interview with an inmate and by the way let's a correction here because however hundreds of many inmates were involved in lucasville let's be clear from the complaint into the reply brief in this case we're discussing inmates convicted finish this point or inmates convicted of crimes in connection with the lucasville riot which rounds us to the last bit directly related to that which is that if you look at that net flix document or the talked about the guards of the people and all of those others two things stand out one you won't find anybody of that class in there because that viewpoint isn't permitted and secondly to the extent that they say o s p prisoners are in there although it's pretty prisoners are on high security why were they permitted thank you very much