good morning made please the court my name is ethan blevins appearing for appellant freedom foundation the lobby at issue in this case is an eleven thousand dollars square foot space that accommodates farmers market classes transit fares and it can accommodate a single canvasser passing out information in the lobby the district court cared for two primary reasons st i have the council i have a question right at the get go  the farmers market the other people who take advantage of this open space they ask for permission to do this so order sending from the record is that those activities  seventeen they contacted miss stewart who is the head of human resources and the contact for this properly process and they were denied the access to the lobby at that time yes nature of the space it is she demonstrates why that would not be an adequate alternative for the channel communication at issue here which is that the there are two primary entrances are visitors entrance and then there's an employee entrance connected to an employee only parking garage the planes enter that employee entrance and there's no way for freedom foundation canvassers to reach ecology employees who are their intended audience if they're out in that open plaza area and that's why freedom foundation is consistently sought to be inside the public areas the building where public has access to the building during the working hours of the day wow ok that was just waiting pretty much started with saying this was it was nonpublic is that correct it did conclude it was not a public forum i think one of the key errors here though is that after engaging in his public form analysis he effect treated that as dispositive of the st amendment issues so he then went on and simply concluded in this single statement that you point neutrality in a reasonable mr satisfied quote unquote as a matter of law and didn't actually address any of the evidence or arguments brought by freedom foundation with respect to the point is valid and reasonable to us but this case is never turned simply on what type of form was it issue although we certainly argued that this is a designated public form at least to a particular class of speakers response to freedom foundation their attempt to leaflet two thousand and fifteen and that they have applied that policy against freedom foundation while allowing other organizations that speak on matters related to a college of business speak in the lobby and so i believe that gives rise to an inference of your point discriminate not only because the policy was inspired by and passed because of freedom foundation but that appears to be a disparate leean force against freedom allowing out of other organizations use that speaker or any other organizations in the record so there are several so inner city transit is one which it was allowed to do a transit fare in the in the lobby area for a couple of hours this was those joyrides or the other group asked for permission i believe so your honor it's not clear from the record that that was the case but i believe mr testified that she didn't specifically the individual is dressed up like santa claus in both i believe you're on yes yes and he was not content to stay in the lobby area but in fact went into the building and went and security initially told them they could access the nonpublic areas of the building and once security understood who freedom foundation was i think there was confusion about whether they were with the union  then that doubt right of accessing those portions of buildings were attractive but there really isn't any contest from freedom foundation at this point that they don't have or in are not seeking access to those nonpublic areas of the building how seventeen i think it in two thousand and fifteen in middle and this was in deposition testimony freedom foundation having engaged in this kind of an flirting at government buildings prior to that they had spoken with security general security personnel but haven't spoken with the department of colleges pacifically i think now after that two thousand and fifteen event realize that they need to do that and are willing to do that in the future to contact ecology and work out a proper time place manner for engaging in that speech activity then how is this case right well i think it's right because in two thousand and seventeen they did seek pre approval and were still nonetheless denied  they did by to enter the abhi impasse that information mr soon after arrived and reiterated they were not given access and freedom foundation left at that point so we do have an actual attempt for them to seek approval  and then have that approval denied them and they will be they went through the application process with the rule of the apology and so is as far as we understand those rules you start with a yes or no yes they did you they did your honor so they the inner city transit and joy ride by it seems like there's a few different approval processes at issue here i should say initially which is why i think there might be a little bit of confusion on this front but inner city transit enjoy red bikes as far as we understand were both allowed on the premises through a informal approval process so mr sha'ath sent an e mail to her supervisor saying essentially is it ok if joyride brights calms and does a bike repair demonstration the premises this time and then received an email in the affirmative so that's there was no application process that we were aware of or were told about by ecology beyond simply asking for permission from the security supervisor ken as were they who communicated with freedom foundation said that the union and other groups handed out information in the lobby quote unquote all the time we don't know who all those organizations leaflet specifically it's not clear so we don't know for example what inner city transit passed out if they passed out information or if they were just sharing or information about transit options so we don't know if there was an actual physical passing of information we know that the food bank was allowed access to those premises to share information about their resume and it's not clear from the record whether that was written material or simply a verbal exchange similar with the gardeners association so one possible issue on re man would be determining what the exact type of expression and gauged by these organizations were and then the visuals went to it so there's the statement from someone that other for certain but we do have that that testimony we do think that it's sufficient to say that at least two as two groups that are present to speak about it matters of the culture business  end of sandy stewart's deposition testimony where she indicates that even if an employee of ecology invited or sought permission for on b or on behalf of freedom fighters to come on the premises and then leave the lobby they would still not be allowed to do that so it doesn't seem to be a matter of drawing the line between have they been invited by the college employees or not and that's not a part of policy one thousand four hundred and ten anyway and the colleges consistently said organizations that speak to matters  college of business are allowed access and we also tell you no one can play flip in that area is your argument do you lose i don't think so because i don't think we can draw the the boundaries of the form with so tightly around the exact type of expression so if it was simply that no private owners asians are allowed access for any type of expression whether it's leafleting or what have you then i think that that it's like i tell you i do not want you in my house late putting and i'm not going to let anyone so i think it is fair to say that it's clear from supreme court precedent that they can close the form off entirely i think have in the records certain organizations are allowed to come and speak on the premises so i think that in itself at least either creates a dozen a public forum for a particular class of speakers or indicates that some people are allowed when they speak on matters of the call to business and we also courage your viewpoint so my understanding of the collective bargaining agreements that they're allowed on the premises for representational activities and i don't believe advocating for union membership or advocating for people to remain members is that representation no i don't think it is but i think that that is an issue that we have a should have the opportunity to flesh out at a bench trial because mr testified that she did not know the constitute advocacy rather than simply representational activities but i don't think that this is just about the union only there are other organizations given access as well i know my time's expired so you know questions so that's fine but so my question is if you had it in their record that in that the union was allowed to in a lobby to advocate her membership but you do not have in the record is that when that automatically ok from any of the deponents about the exact type of expression going on makes it difficult but we do know that there was a membership drive and we don't know exactly what was said there but presumably i think the members of dr implies that there's advocacy good morning man please the court family nelson assistant attorney general representing the telly the st amendment does not give freedom foundation the power to dictate how apology uses  ecologies lobby is a place and it has never been held it open for expressive activity the fact that some expression might be her incidental to business purposes does not render the lobby a public forum under the  amendment we ask the court affirmed summary judgment i'd like to start off by clarifying a couple of earlier questions from judge hawkins the in the event that occurred in the lobby that mr referring to those were all internal agency events that were organized by and or ecology employees they were not advertised to the public they were not open to the public any organization that participated in th were invited for the thinking purpose of sharing discrete information and expertise related to the topics that were that were the focus of the internals of that so it is incorrect to say that other organizations care what if what if their whole purpose is to tell people well janice doesn't say you don't have to be in the union anymore and they get a total ban on that are you allowed that's that's a private place so what are you allowing and freedom happening because representational activities those concerned the terms and conditions of employment anything having to matters that have been previously bargained between the employees and their lawyer and so it would be inappropriate someone who is a mom or dad do you have access to you have not members of the in any college you correct correct in it how do you collective bargaining unit is wall to wall which means that the union is representing the interests of both members and nonmember employees so if a nonmember wanted to come up and just talk to the union about the collective bargaining agreement or the work that the union is doing around the wage and hour issues for example that would be appropriate that membership drive having taken place but the collective bargaining agreement explains that upon and bullies hiring when they are hire if they are hired into a position that is within the bargaining unit then it is actually an apology to provide membership material about the union as part of the employee's orientation and after that the union is not allowed into  and it's also not evident that apology does not intend to consistently enforce the policy because when the court is doing a form of terminations analysis the primary question while i agree with you that it wouldn't that wouldn't be the end to to conduct expensive discovery in this case that we have the opportunity to depose the college and witnesses about potential membership drive they have the opportunity to request and receive many many re of giving up and working the policies that this court found had occurred in the hopper case that's not simply the big he's here it's important to remember too that freedom foundation claims is very specific and it is  explains why the policy was revising it because there was a security and then just talking mentioned earlier this individual who gained access to an employee's picture area was not just in a costume they had a full beard and a hat probably obscuring their identity and it's important to remember that this wasn't the end of two thousand and sixteen way awareness around workplace safety issues was extremely d heightened so this was a very emphasis depending on administrations and all of those things let's say you have a boy working that isn't you know thinks that there's a different viewpoint on some of these things that you know maybe the bike riding or this that and the other and they want to invite someone to give  say if they don't play as for freedom i'd like to hear what they have to say if you don't if you don't like that then you just say well no you don't get to come here on of that's actually not how ecology is policies operate so take for is related to state business without showing an intent to create a public forum and without engaging in viewpoint discrimination when we're talking about a nonpublic form which the ecology lobby we argue undisputedly the agency can draw those kinds favor and there's there's something if if they're entitled to that inference is that create a tribal issue if other people have been allowed to leave but no it is not in your honor because there is ample evidence in the record  would make it a credibility call there now and that's that's the exact opposite you're not supposed to do in summary judgment correct your honor and i think i'm just saying that when the judge is looking at all of the evidence the judge is also add twenty four he says everybody leaflets out there he's referring to the lobby we have folks in all the time including the union and they just all stand out there so that the reference i was referring to there i will say addresses promoting or soliciting on the premises is is just unrelated to that security concern so i think it still gives rise to the problematic inference is that the policy was inspired by not because of the security concerns but because they didn't want that speech on the premises i also like to know that in deposition testimony mr stated that other organizations would be allowed to speak on matters related to  a matter that says if we like it we allow it and that i think that kind of broad discretion creates some serious st amendment concerns thanks what about this you know skin i think she said because the policy was changed in twenty where the comments were prior to that change is that him the judge just regard those or put them in their place as opposed to or you know i mean he seems to say well yeah if they had if it ha is policy at that time i think mr naz worthies statement is still relevant because we don't know whether that continues or not and i think that the fact that other organisations are lobs because the premises at least raises a question  walked that back or said that he didn't recall the other musicians and i apologize for not having that information right on hand by i believe that essentially said he didn't recall so i was under oh i was under oath yes your honor i was that would that was in a deposition under oath but i think the we do have an in clear indication that there are other organizations use that space that a lease create a triable issue that should go back on rem reasonable that require any clarification yes i think i think it is an important question as to whether he was required to least address it in fact the rd circuit just a few weeks ago decided in a case called helpful argument in this matter and we appreciate you both appearing by zoom and that will conclude the calendar for today this matter will be submitted this court is in recess for this week and a good weekend