when you're ready you may p please the court my name is bill morman i represent the opponents in this case as your honor as well know this the second time that this case has been before this court and therefore i'm not going to go back into the facts and the details a lot of the details of what happened belo what i want to do here my argument today is emphasize four points one that on the facts of this case because it deals with a ballot question we don't believe even get in the strict scrutiny analysis that under supreme court doctrine  the state simply can't regulate the speech at issue here to this court's prior ruling finding that first of all that false speech is not an exempt from first member protection was confirmed by the u s supreme court and the alvarez case also did not undermine this court's finding that the restriction issue here is subject to strict scrutiny counsel on that point i don't get it because there are only four votes in the somewhat john i think i think you are but die down help me with how we can apply strict scrutiny in this i can help you very easily alvarez has to holdings to it one consistent with this court's opinion speech is not exempt from first amendment protection and to the stone valor act is unconstitutional that's it the argument that the respondents make here that the two vote concurrence of some kind of controlling opinion in this case which deals with political speech at the core of first amendment protection is absurd and in fact it's also inconsistent with justice briar's concurrence justice briar specifically stated in his concurrence as a defense points out there are broader areas in which any attempt by the state to penalize purportedly spalls false speech would present a grave and acceptable danger of suppressing truthful speech laws restricting false basement statements about philosophy religion history the social sciences the arts and the like raise such concerns and in many contexts have called for strict scrutiny that's just as prior so what the respondents would have this court do is something that would be completely and can route with first amendment free speech analysis it would have this court apply intermediate scrutiny to speech that's at the very top of protection for first amendment political campaign speech there's a plethora of supreme court decisions that say that there on the court would go and apply strict scrutiny to somebody going out and saying that picasso painted the sistine  so as you move it which which isn't at the core and then we would go back down in a media scrutiny for something like the stolen valor act that's absurd and i would also point out that in the dissent which justice brier  noted that he agreed with the dissent said that prohibitions on false speech regarding the same areas that just as prior cited plus areas of public concern which would include political speech would be an government of the respondents become the ministry the agency or the ministry of agency become the arbiter are there any other cases where the administrative agencies ruling on free speech like this now this is some goofy deal that white man made ohio has a similar law they do your correct  little bit of it because of the case the court's referring to that's going up on cert which i want to emphasize the two questions it's going up on relate to standing alone there's been no question presented in that case to deal with whether or not substantive the statutes constitutionals going up and standing and by the way the sixth circuit is an outlier on standing in fact that that opinion is just breathtaking i mean basically find out go ahead yeah so it anyway in ohio apparently this commission makes a probable cause finding and then my my recollection is that once the probable cause finding is made then it gets referred to the prosecutors and the prosecutors can decide whether a prosecutor not is appointed by the governor and it's an executive branch court and they have limited tenure like three or five years or something like that you know they'll get i'm not sure about that but they'll get reappointed i don't know if anybody's gotten yes but they have a limited tenure yes person that's that that's my sense and i tried a number of cases that cord and i just feel because of my own sense of the first amendment that i just feel that most of the star chamber sometimes arguing these cases because you have you have disputes about political speech and you know and i'm trying to convince you know members of the court which truthful about the effects the future effects of a ballot question and i had one case where in for in representing mr nesta where he  he was alleged to have made a statement about what was going to happen with the teachers unions and the people who complained about a brought up an expert and his first statement of the expert was well the statement would by mr newschool was literally true but you have to look at it in this context and i have course got up and asked a witness one question statement true or not he said yes and i rested my case and it was dismissed but mr niska had to pay me fifteen hundred bucks to do so now the supreme him granted cert to find out if to pass on the question as to whether our rationale that they didn't grant cert on which has been two questions that went up one was the standard that the sixth circuit utilized in the second question was whether or not a party in my client's position has to admit that they're going to make false statements in order to have stand well notwithstanding this stolen valor thing the district court purportedly a pledge strict scrutiny in this case is that right they said that but they that they have they applied it contingently as an alternative the district court briar said there be situation the stricter new pliant if it's going to apply you think it apply right at the core and then secondly under marks you don't look at the outcome of the case to figure out what's the narrower standard as you look at the standards themselves women if you lose it's the opposite result what i'm saying is you know look at you don't look at it based on what the result was you look at the standard in the standard is compelling state interest versus substantial state interest every interest compelling will always be substantial but not all substantial interest will be compelling and that's basically the analysis this court did in the farkas case when it looked at the barnes decision on new day answering and we had a disagreement between justice s ality regarding the second factor in that case of whether the state needed to prove that the new dancing ordinance would protect the morals or whether they had to be of secondary effects and your analysis had nothing to do with the outcome of the standard preserve the statute does that make it more narrowly tailored to meet strict scrutiny no when in fact this court in its prior decision specifically noted that in the political context was reckless disregard for the truth in the political speech rina often proves difficult i would also argue that doesn't nearly tailor anything because that intent standard is always going to be based on subjective circumstantial evidence because anytime you go into court the party is alleged to intentionally does something deny that and the only way to prove it is through circumstantial evidence i've gotten in my reply t in a particular way minnesota's law prohibiting calculated lies in campaign material designed to trick voters into voting in a particular way satisfies first amendment scrutiny when it may or on the other hand it may be permitting people to shield the speech of their opponents by claiming that something and there's plenty of law that says  to protect calculated lies the reason that the court does that is to provide breathing space so that we can have a robust debate where people are not don't don't have to be concerned about the inadvertent why and this counsel and what he meant is that your argument is that that this goes no limit first amendment speech our argument is that under alvarez this court should apply intermediate scrutiny and this statute survives intermediates really because it's nearly tailored to focus on only those calculated lies that are not that the first amendment allows political speech alvarez was not political speech but it but it it was the first time the supreme court analyze false speech statute and said that it that and specifically said that we're going to apply scrutiny to false statement statutes because in the reason that that this intermediate scrutinies argument is  is that you either all you need to do is call registry in washington and you know whether somebody has earned a medal of honor or not and so what you're doing here is you're turning loose the opponent turning loose this rule on people who want to come back to your money or whatever you trying to seek your ballot questions and keep them out of the political arena by having to pay eight hundred dollars to represent themselves or getting represented and whether or not that even when they do have the right to say things that are not necessarily true your honor i would disagree i think that the statute in intermediate scrutiny is designed to to make sure that minnesota statute only proscribes calculated lies that it doesn't get  to false statements that are not calculated and that it's narrowly tailored and that's what the intermediate scrutiny is designed to do is to make sure we have a substantial government interest in that it's tailored to that interest and i think over inclusive and it's under inclusive you you limited to permit paid political publication advertising use but you what you're limiting here you say is when somebody is on the campaigns don't when they say something forty seven percent of the people give government money they that lived in president obama says you can keep your inch surance if you like it period so things like that live just as long as the stuff that's that's pretty your honor that they they they don't involve the same calculation when somebody sitting down to write down a campaign flyer that they're going to have so many of those comments are written that a suggestion well that they they may be written but you're honored the idea is to provide breathing space that let me ask it let's change the subject for just a moment what really troubles me is this goes to the administrative agency of the state with people appointed by the governor a political actor with limited terms a mickey mouse court how can you defend that your honor it's not to me that doesn't meet any level of scrutiny your honour's not a mickey mouse court it's the office of administrative hearings they they are the administrative body for the state of minnesota they  all whole host of things including rules they hear employment cases and in this case the burden is on the proponent to prove by clear and convincing evidence and if it gets past the office of administrative hearings there's a right to appeal to the minnesota  a body that is used in minnesota for a whole host of matters not just related to this campaign speech this is just one of the areas that the that they are speeches like anything else in minnesota it's like any other garden variety issue right and political speech is like any other garden variety issue that's what you're telling us right you know i would not you just said it you know i if the if i said that i misspoke i'm not i would not say that political speech is like any other garden variety issue i would say that the matters that  become come before the office of administrative hearing are a variety of ones in the state of minnesota has to has determined that it's a it's a body that should hear these cases it decided that in two thousand and four and i would just point out to the governor here these could they brought be brought before the governor or cabinet be a judicial figure to know what it is don't you just tell me this board is in the in the executive branch and there were moveable by the governor for cause yes your honor ok well you just said judicial they're not a judicial agency correct they're anyone fall in a claim that a group or an individual has volleyed the act and and to whom what they followed it would file that with the office of administrative hearings that would do a review of it to see if it meant  crime official standard and if so then it would proceed to a hearing and if they found that there was a violation they have the ability to determine whether or not they would find the person and or refer it to for criminal prosecution or are they are there any negative judgment which was to strike down the stolen valor act the narrowest holding in that case that is justice briar's counsel do you believe this law could be adopted by the federal government and they could set up an administrative agency with pointed by the president in the executive branch to courts in minnesota have found that that there were very close elections in determine that the statements likely had an impact but likely how would you know if for a compelling state interest there has to be a pretty firm showing then the and to prove a compelling state interest we believe that the democratic institution of having people vote on ballot initiatives is important enough that it satisfies that you believe that what is the right in a showing but even for an intermediate scrutiny there has to be a state interest of some sort involved right yes you're on there has to be showing that and there needs to be a remedy and you said well are some sealed that to to determine what whether or not a particular false statement had a particular influence on a voter and flipped an election have you heard of this science called political science whether expert to come to our courts and reapportionment cases and testify to those very a number of times the state versus jew cases the was the case that made the times versus sullivan standard of actual malice to narrowly tailored this this law towards to make sure that it gave the proper breathing space so that we  were able to to to to have it survive so i see that my time's just about up i just want to close by by by quoting i think a lot of this has dealt with the political arena and speech and i think the garr political tool to unseat a public servant that speech is used for a tool for and for political ends doesn't automatically bring it under the mantle of the constitution for the use of a known lie as a tools at one at odds with the premises of democratic government and with an orderly manner in which economic social or political changes to be affected in accord with yours and we ask this court to affirm the district court thank you thank you council or thanks both parties for  thank you good morning my name is john kerry i represent the appellee minnesota attorney general the eleventh amendment issue before the court now is not the one that's been previously decided which is whether the attorney general is a potentially proper defendant such that she can be named in the complaint and strip and have that survive a motion to dismiss the question now is whether in the event plaintiffs prevail on the merits of their constitutional claim and that case held under factual circumstances that are indistinguishable from those here that the eleventh mema did not permit injunctive relief to be entered against the missouri attorney general in addition to the local prosecutors because although there was a sufficient connection between the attorney general's office and the challenge criminal statute to make the attorney general a potentially proper defendant as here the or the injun relief cannot be extended to the internal journal because there was no threatening force meant of the statute that is to say the authority that existed for the attorney general to force a statute there was no showing that it was going to be actually used in the circumstances as to that are indistinguishable from those here in reproductive health the missouri attorney general could i'm sorry was that case after our previous decision in this case no no other reproductive health up for twenty eight other what year was it two thousand and five so it's definitely before our previous decision yes it was and it was referenced in your previous decision for the for the proposition that and in that case couldn't force a statute only at the request of other government officials and there have been no such requests made the same is true here there is nothing in the record to show that a request by county attorneys for the attorney general's office to force a statute has ever been made much less accepted or ever would be made i would briefly point out that the two ways in which parents try to distinguish reproductive health pages thirty nine and forty of their brief reply brief fail this was not a rule sixty five ruling this on this issue of this court ruled explicitly based on the love of mehmet and contrary to their footnote the misery attorney general remained from that decision did not remain as a defendant for purposes of relief being entered against him rather the thank you i'm sorry for the confusion confusion that it was so me i want to get to the county attorney's last argument that magnificent closing argument that they are not serious from the garrison case the problem with that argument of course alvarez specifically discussed that statement and after quoting garrison justice kennedy said these quote quotations all derive from discussing kids from cases discussing defamation fraud or some other legally cognizable harm associated with a false statement such as an invasion of privacy or the costs of vick's ations litigation in those decision the falls is speech at issue was not irrelevant to our nelson's but neither was terminated determinative the court has never endorsed the categorical rule the government advances that false statements receive no first amendment protection so there may have been a great flowery speech from justice brennan but it's irrelevant right they did but criminal liable is different than here is this court is a pretty recognize we're not dealing we're dealing with ballot questions which aren't subject to defamation analysis secondly under strict scrutiny and even under intermediate lead to an extent the state has to have some evidence to support its interest and they have none mr gary got up and said there have been there have been situations were elections in minnesota have have the result of change because of false speech where i don't see in the record and that's the number one issue for them you'd think it would be in their papers i have lived in the state for twenty eight years i don't remember a case in the election where somebody after the election mass groups of voters have said wow we didn't realize that that statement that was made prior to the election was false and that caused this change our vote there's no evidence of that and as your honor pointed out that's what political scientists do they can analyze these elections and make that argument and the and the problem then with the with the with the regulation is if it isn't serving the compelling interest minnesota has in making sure that elections aren't tainted by fraud with the voters which another point i want to make in the andersen v breeze case the supreme court noted when a similar argument was made the supreme court said our citizens are made of sturdier stuff our citizens can figure out if they're alive being made during an election campaign and can inform themselves of what's happening so that that if they respond as don't have any evidence actual evidence that they have to have under strict scrutiny support this the effect of a ballot question that is necessarily an opinion of what would happen in the future and my client joel broody provided an declaration in this case that because his case has been pending for five years works very well in our favor when job rudy first commenced this case he had made a statement against the school bonders a school ban that was going to be in effect for five years he made a statement that no these people are proposing this are going to make this permanent and the proponents came out and said that joel was lying and threatened to take action against him under the fair campaign practices act well guess what five years later the school board down in the lake welcome minnesota went to make that five year increase permanent that's the problem with this there are lots of situations where people will make campaign speech saying something is going to happen in the future they'll claim it's a lie try to drag into these proceedings and i'll turn out that their their the their statements that are supposedly lies turn out to be true in the future amount of time i would ask that this court reverse the judgment of the district court and remain and with an order to for the district court to enter judgment in favor of the