did virtually nothing in response repeated can find really a fair characterization when you read your like we are bound by the and the universities seem to do by your own leading why don't number of very clear in saying that particularly i think in a university so that where the university or the ins the educational institution there's a threat of constitutional litigation over a response that a litigant wishes to say that that's a legitimate reason not to proceed with certain actions as to the latter i want to list for you the many things that the university could have and should have done that wouldn't implicate the first amendment all let me go back to the initial part of your question we list the things that the university did because i think when you look at them you'll see that these would not begin to count the sufficient action under davis one of the circuits precedent for example with the campus did was send out the announcements i said saying it couldn't do anything the campus said that the students could file complaints with were you can a professor organized sharing circles with students could talk about their feelings on one instance the campus sent a police officer in terms of considered was the possibility of closing you can it is unclear under current first amendment law for the campus had that power but the point i was trying to make in response to your question i ask this your question judge king of the many things that the campus could have been should have done exactly there is no difference based on the medium of communication the stack that it's over cyberspace doesn't give the university of else what i think is here as i was saying are there many things that the campus could have and should have done that they amendment also your honor what they could have done is seek to investigate who was making these threats in the surround by the identity and discipline the students to go to judge king's point if these were bomb threats with by this medium or any other the they could have been deliberately indifferent wouldn't matter now when you phrase it that way and the key is they have the obligation when there's peer entres sexual harassment to take actions even if they couldn't control you and so what i was saying i just what i think you probably agree with i want to make sure of your structure here under davis at the school doesn't have control over it because it's not perpetrator but the students or the that that they could have identified who were the students who were making the threats that controls the tsunami she don't know who they go but your honor we know when there been bomb threats schools have been able to find out who was once who are of all under the question is were they deliberately indifferent i'll go back to this school district it's as if a school begins to take actions and the harassment remains unchecked there's deliberate indifference of the school doesn't take further action advice of counsel doesn't provide an excuse for not doing the basic things as i said  taken into account but it's not determinative i don't think it should be any different here i think what you need to do is a quarter is a look at the things that the campus dead set is virtually nothing compared to what it should have done under o c r guidelines and that's the deliberate indifference the second question that's before the word and if you look at the april first statement they said we can't deal with this because this all speech under the first amendment that i think is the answer is a g s question and that's what shows go to your question to tears the deliberate indifference in this context office of civil rights says that a school should do and it didn't do any of these even and they support he did claim for these students that their educational opportunities were being undermined and interfered with the second issue denial by itself does i think the question though is whether or not his criticism of the students was an embarrassment the council's retaliation sort of seen as though any time school or an employer is saying there's been  cherish that the president the university folk completely comfortable speaking up to defend himself but never took the action to publicly condemn the harassment threat and that was it minimum what he should have done to avoid delay and with that i'll save my time  court my name is sam county deputy attorney general the commonwealth of virginia here on behalf of the university of mary washington and former president the question in this case your honour's is whether a university if you subject to liability or money damages under title not the anonymous statements of others on a now defunct third party social media platform that the university does not in any event and when the court indicates that you must demonstrate that you have substantial control over the last arrests or simply saying that they are students is not going to be sufficient why wasn't there substantial control over the students who were sending messages in this case your honor because it's not there could potentially be control in certain circumstances but certainly in the cyber context anonymity takes on an even greater degree of for lack of a good word anonymity and difficulty in identifying individuals in it also danger that into phrases because you were initially indicated the control is binary but davis instructs that there is liability to a university only when there is substantial control which is no substantial so that there must be at least some sort of spectrum of control i don't believe that it application that individuals can download onto their phones if they so choose it for to interact with other individuals who have that same application that is fundamentally different and an important part of the context in thi different in that it is not those individuals that are using this third party application who elected to download the sample gauge and uses implication here writing of course would presumably be this will to the entire camp so the circumstances of course there were to be substantial to all of that your honor in those circumstances i don't know that i just don't know that there is substantial control over a sky ri nexus to school operations and so that it can be punished and i'm wondering why that case doesn't sort of bear on this one does it suggest that wherever this stuff kind of lives metaphysically it's aimed at camp this if it's clear that there are greater expectations on the administration to deliberate indifference that's the part where davis is talking about the liberal difference and i absolutely understand that what is reasonable in terms of response again that's all that very we're on our i don't believe that is as played in the complaint we don't have any true threats under virginia versus black the one situation in which an individual student was identified in a circumstance in which a anonymous poster  going to confront this person and this place at this time would do the university do in that circumstance they ensure that a campus police officer accompanied that young woman to ensure her safety so the university is taking the appropriate steps in different to identify which you have to do something to try to do that your own and end up either the rabbit what you got these are valid threat actually threats of violence  you don't or i don't believe that is accurate because with the university has done in a number of occasions is informing the student body through campus wide communications that if indeed the individual does feel that her his where her safety is threatened they should contact the title nine officer and that they should contact the authorities for the campus police in any of those circumstances and that is how we know that the campus police officer did respond in one of those circumstances now there are cases that indicate it directing students to those resources that can provide them protection in those circumstances in which the university may not be able to is sufficient to satisf what they're done we don't have a record we got the appendix here is smaller than any of the bri a complaint that has over one hundred paragraphs worth of allegations and many of which even taken in the light most favorable to the nonmoving party nevertheless demonstrate that the university of mary washington was not deliberately indifferent in brief there are nine individual actions that were taken by the university in response of the complaints of the students and davis is clear the complainants may not demand a particular form of remedy and time and again that is what these individual complainants demanded they demanded that university reach out to the act and have shut its application down on the university of mary watch they demanded it the university of mary washington disable were disallowed from using the school's wipe my system and entire speech warm which indeed includes derogatory speech in this context but is a speech for on nonetheless and the university has the discretion not to expose itself to potential first amendment liability in order to respond to complainants in the way they would potentially university and it is in the complaint engage with experts to determine what actions it may be able to take within the bounds of the first moment without potentially exposing it again in this is it if the last two years have taught us nothing is there no not all anonymous speech in the first amendment on text is in the same vein as who believes in the federalist papers there is a lot of politically protected speech that can be quite derogatory but in this case as in other cases that does not mean that it has not enjoyed some level of first amendment protection and in this case each instance in which there is a spike in derogatory comments it is in response to the advocacy commendable though it is by this students that took part in it against those individuals because of the political positions that they have adopted  clearly was your position is probably considered by us which i believe so your honor because it is directly addressed in the complaint in your honor to your point about  the statements made by the university president in that context he was discussing the statements made in the our complaint that seems to suggest a connection between the murder of university very washington student and the posts on you yet and that was the issue and that was the aspect about which he took issue using the language that you describe this is the same letter where you said it's important to put the post anything about the law your honor i think it's important for the analysis of the the first amendment liability piece because these students again commendably are engaged on issues of sexual harassment are and again commendably so engaged on the issues of the day and in those circumstances there are people especially people that high behind the shield of anonymity that do not necessarily hold those same views and the university has to be cognizant of that particular context in determining whether or not there are potential first amendment liability pitfalls for them should they elect to take some kind of action against people making this statement now your honor i agree that the statements that are at issue here are certainly odious and that is why the university took a number of steps that it believed that it could to attempt to address this harassment  are engaging in the political arena on meaningful issues which is exactly what we want our young men and women and universities to do but we cannot have the university  we believe that it should be able to go to discovery and summary judgment the fact that this was done anonymously doesn't make it protected by the first amendment if these were bomb threats i said to the campus would have found out who did it the campus at the application here the fact that it's done now the attorney for the state says the campus did nine things just h e u began but point them out and i ask you to look at them individually what happened here well the professor working assuring circles so the students could express their feelings also the hey in the world or soon to go through tree hill for anything well but you know that that happened almost at the very beginning of this before the threats and harassment the statement that you mentioned was up here before from the present university was in the context the rugby team canning the rugby team triggered a great deal of the threats and harassment that hundreds more messages and at this point the campus did nothing it is the in difference doesn't mean that the subjecting themselves to threats of grey threats of murder and harassment that's like saying that when a woman goes to work in a workplace she subjecting herself the possibility of sexual harassment this court in every court has rejected that argument this case is s and we'll call the next day