cabbage as of course where we're challenging the convictions of mr maher cabbage for violating the terms of a permit issued which wasn't actually issued and for also interfering with an agency function you if i may the what occurred here mr mark have it was standing out on the sidewalk between chestnut market street and six tree outside of what then was the entrance to the liberty bell if the court and we filed a motion for the court to admit the two videos if the court has looked at the videos and can see exactly what had occurred he was standing on some belgian block where nobody else would walk there were some ballers there was a sort of like a triang advertising piece almost like a realtor sign that nobody could walk by and we but he was standing there and he was seen change someone i did my views more of he he was standing there but he was standing next to this advertising thing but he was standing where the government even agreed nobody was walking so what happened i think we understand ok the issue here is mr mark have it is found guilty of violating the terms of a permit issued there was no permit apply for the government relied upon which both ranger sapper seen in chief crane admitted had not even been put out into the field yet where they had created a new free speech area somewhere over near market street in the video is the second video that was jay that was two three ninety at one o one pm and one of two pm rangers have said look you're not giving these people the opportunity to avoid hearing your message so i'm issuing you a verbal permit to go to the other side of the building which is now where the new entrance the liberty bell she said go to the grassy area just on the other side of the building then say to go to market street mr more coverage said no and i'm just going to stand here because why can't i stay in here when all of the breast cancer marchers are walking through why can't i stand here when all the horse carriage riders they were standing where mr cabbage was soliciting riders because of that he gets arrested right but they didn't have bullhorns well right there you have a tougher you want to divide this case up into a the bullhorn being a violation and then not or talk about that a little while but it was here moving into the bullhorn well i don't believe that there was any significance with a bullhorn for this reason somebody else other than mr m cabbage in the videos was using the bullhorn first then mr moore cabbage was using the bullhorn and there was a ranger there you can hear mr mark have it on the bullhorn you can see a ranger standing just feet from where mr moore cavite was was talking to individuals who were asking where is the entrance of the to the liberty bell when mr moore cabbage was told you can't use the bullhorn he stopped using the ball and that's that's that's what i took from the video that he stop using the house when it was about two hours after he stopped using the boat or not he was arrested yes so that so that the arrest could not possibly have been related to the bomb well it didn't even the compendium it doesn't it doesn't restrict the use of it was ok we're hours what was it i believe it was somewhere between like an hour and a look at the videos he did walk around to talk to some of the other people who were holding some pro life signs to talk to them and they were on the village a block to another location you know he would like this there is no evidence and the government didn't offer any evidence that mr moore cabbage the effect of him being there was choking and sure it's very exit from the liberty bell well that was the argument the government kept saying that he was creating a choke point but zero point but he was standing by himself he was standing where everybody agreed nobody was walking you look at the video you can see where the entrance to the liberty bell is they have this one wrought iron gate that actually locks about half of the sidewalk at leave the sidewalk is about eleven feet wide so you have this big wrought iron gate that sticks out mr moore cabbage was standing next to this i don't even know what you call it but it's one of those triangular signs it's got the chains to keep it from spreading apart too far so he wasn't creating a choke point anywhere in fact if you look at the video and the evidence and the testimony there were lots of other people they were there were thousands of people walking down that same sidewalk for the breast cancer march of susan komen the awareness breast were brains breast cancer awareness march i mean or well they were actually there was somebody right down the way right by the exit closer to the liberty bell the mr mark have it who you could hear on the video at the entrance that's the person on the bike the one on the bike yes one of the stationary people on the bike was actually closer to the exit of the liberty than the other people that were associated with mr more coverage that were holding the signs and it wasn't just to correct the record it wasn't thousands right it was maybe there were hundreds of marchers right there well actually i believe the earth i mean it was like an all day event i mean it was just it was a constant stream record reflects that that there were thousands of miles we don't the record doesn't reflect the exact amount but the video shows it was just a constant stream and there were people in that well in those lines in that march that were clapping there were free speech on six treat in fact you can stand there you can talk to people you can walk back and forth but once you start expressing yourself you need a permit which brings up the basic proposition legal holding and respectfully yes i do this particular sidewalk and there was it was one contradicted this particular sidewalk is open to traffic twenty four seven there's all sorts of activity that occurs right on that block in fact they allow right up to the curb those duck boats they have their loudspeakers soliciting riders they have all the carriage riders that are how we categorize it if we have allies if you apply the strictest test well it have who had been talking to chief crane on the phone came over and told mr mark have age we're working on a new compendium this is the new area i didn't even know about it and chief crane also  confirmed that at trial that they were still working on where they were going to have so if there would have been a compendium in place that would have said there there was an outright ban between on six treat between market and chestnut we would have gone in preemptively to seek an injunction to dissolve that band so that we could go do this so what in essence what happened here is you have a compendium that nobody really knew knew about i mean they had a compendium in place that did not ban free speech from six tree the compendium that was offered didn't have this new place where you could only engage in free speech but notwithstanding that the area where mr mark have it was preaching was certainly open to all sorts of other types of expressive activity including the marchers including commercial activity so there is sort of a facial challenge to it but it's also and he said you're not giving them the option to not see your signs they have no choice here but to see your signs and hear your message that's why he should the verbal permit and who's ever heard of a verbal permit compendium requires a permit and the courts have held per meeting schemes or or allowable if they're reasonable time place manner restrictions which are say have to be content neutral but that's to allow the orderly use of resources you don't want to group  this you still have the second the obstructing yes yes yes but like we have the burble permit which was just our position is just government censorship we just don't want you here we give you a permit to go somewhere else the interfering with the agency function this was charged actually six months after the alleged offense and it was our position that he wasn't doing anything that violated that particular regulation he wasn't threatening resisting intimidating or intentionally interfering with a government employee or agent engaged in an official duty although this is the job as the choke point is that the basis for that that  i'm not i'm not really sure because the c f r although the government says there was a chokepoint the evidence doesn't show any chokepoint but it says a lawful order and it was mr moore cabbage who was issued this verbal permit because they didn't like what he was saying they said move when he didn't move then it was six months after the fact that he violated the lawful order and the statute or the regulation says violating the law full order of a government employee or agent authorized to maintain order and control public access a crane stated at trial and also what ranger sapper student said at trial and also what ranger burns said ranger byrne said people were upset by the message sapper seen said the same thing that was ranger burn at page one twenty nine of the one he said the other side i didn't even know about it one of two he said you are not giving them the option to not see your signs you have no choice here but to circe lines and hear your message so i mean how could that not be content of mr mark have it would've been standing there in a pink shirt like the person on the bicycle clapping and saying yeah you know we support you breast cancer marchers we wouldn't be here he would have never been arrested thank you a place the court richard goldberg for the government you are the government could not take more seriously the accusations that we have trampled the defendants first amendment rights and of course we are mindful that incident occurred in the shadow of the liberty bell and independence hall the evidence shows that these rangers pleaded with this defendant to get him to move away so they wouldn't have to take this action he this defendant this spite his claims was subject to a regulation that applies to the park applies to everybody in the parking clued in him well he's he's on a public street here and even though the street is adjacent to the liberty sidewalk next to the supreme court congress and they are allowed to hawk their wares or say their thing i looked at the the video says as was related by my colleagues and i don't see they ever got off the belgian block as a matter of fact they look at your evidence you got a number of pictures in the appendix and every one of those pictures had him on the belgian block which was now some distance away from the entrance so i have a lot of problems with the holding that this was other than a public forum and when you get to a public forum you have very limited first amendment abroad first amendment rights that the government can't grace the supreme court case which the defense chiefly relies on this sidewalk is so integral to the operation of the inside of the building in fact when you stand people standing inside the building could hear the bullhorn from outside so it was interfering with programming inside the building if i had a little that that is a red herring the bulls were he was not arrested for the ball or he was a that's an afterthought he was arrested i can't tell exactly but it's somewhere around two hours after he had stopped using the boat horn and was told to move so that it was less a little bit of a of a of a false argument well your honor i'm addressing the nature of the forum but let me get to the board for one second he was at eleven forty five to get off the bullhorn he was told at twelve ten to get off the bullhorn he's still on the born at twelve thirty five photograph there so excuse me that violation had occurred it didn't vanish simply because the rangers were still trying to negotiate the problem away so that violation occurred and regulation that prohibited any amplification in that area it's no c f r there's nothing not even any sign that says you can't have application but the fact remains one ten one one forty five over and over again the defendant was told to move the reason that there is no regular regulation has to bullhorns there is because there is no demonstration area in that particular narrow area so that suggest that that the this case is not as simple as that for instance in grace the supreme court was dealing with a large building set back from a city sidewalk that was not to marked in any particular way to be different from any other sidewalk in this case this building is surrounded by four foot high anti terror bollards most of which are chained together so that it is clearly different it is patrolled by rangers and in fact exactly what should happen happened here rangers approached the defense to say you were not you haven't gotten a permit this is not an area in which you can have his activity is all of six street encompassed by bollards all the way down to market no but encompassing everywhere government's position that the government's position is that because that sidewalk is that it is a nonpublic form down to market street because that sidewalk is used or the killing of visitors i took can't be the bollards and because you just told us the bollards don't go all the way to market you're on i think the bollards are part of that i think that that the entire area is so integral to the inside of the building which this court has said is not a public forum if they are legit not made your honor the the photographs show and the testimony of the rangers who are experienced in park management and the safe operation of that building was that his presence so close to that entrance and there were two bollards on the sidewalk there an and iron gate to close down so that the the passage for a protest rance caused by this defendant a passage for pedestrians to go up the street had narrowed to essentially one lane so that you could see in video where people had a hard time moving up and down the street and that caused people to stop in front of the entrance or exit it narrowed to one lane is because you have a gate that open seven feet into an eleven foot sidewalk your are i understand that  and i might have designed the gate differently but i suggest that as the supreme court noted in its clark decision that the park has to be allowed to manage the parks and what about exhibit sixteen i mean there's a there's a lady holding a horse and she's standing in the belgian block so was she obstructing the passage no your honor she was on fifth street there was no there's no entrance there she was actually at the back of the building and in fact a ranger testified that she should not have been allowed to stand there and if it's a non public forum then if we accept your arguments and on public forum then to someone need a permit or should someone get a permit to speak on that street on and six on sixth street no your honor in the reason for that is because the crowds are so heavy the rangers are need to give instructions to people there they need to clear that entrance and of course as in why were the marchers allowed to go down six treat for hour upon hour because your honor they are moving pedestrians they are not standing there obstructing the doorway so two hours of a steady stream or more was more than two how long was the march going record does not say or are ok we know that it was least needed here to be steady throughout the videos at least and that was a couple hours frankly your honor i don't even the record doesn't indicate how to identify who's a march and who's a visitor or who's anybody walking on the street so it's very hard to tell the distinction however is that the marchers were moving so that the desk rians can walk down the street so maher cabbage had been instead of your argument is that he's standing stationary on the belgian block was more obtrusive and if he had walked up and down the six treat sidewalk yes your honor because his steady presence there narrowing that passageway made it more difficult and in fact finally obstructed the entrance as if you are the faculty of walk on the belgian block people walk on the slate which a bunch the belgian block he was on the belgium block next to the curve and i don't see how he's standing there i look at the videos and you know we've also passed the area how many there were how he could be obstructing anyone coming or going when he's standing on the belgian block your honor he as you will see in the video he was standing directly off the slate not by the curb and people are walking on the slate i thought no one walking on the belgian block that's a little difficult i respectfully disagree or are there are many times in which the crowds get so large that people do have to walk on the bell to block they couldn't because the defendant was there he was there with the other others in his group people holding posters which further obstructed the sidewalk carol let's get back to the basics your position is that this is a limited public or nonpublic form yes how do you reconcile that with supreme court cases which say that the streets and the sidewalks  access and there's nothing here that indicates that there was any anything and that prevented him from using amplification even though this record when i read it did not justify him being arrested for it happened several hours later but be that it as it may how can this be other than a public forum where people are using these to go up and down philadelphia all over the place this is not like the cases you cited where there was a street going into a post office or a street going into like fort dix bang bang case this is a street which people reverse for going to who are hidden and wherever they're going without limitation yes or if it is a public if it is not a restricted fora then how do you justify this allowing him from standing on the belgium block and saying whatever he wants to say your honor on the first point in have fun the supreme court indicated that you look at the nature and purpose of the particular property and that this the lower court looked at the interior of the property and how proximate the sidewalk was if you can be if this sidewalk is so close that you can essentially affect the operation inside the nonpublic form then the nature of the sidewalk is such that it is part of the interior and the government suggests that the court look at greer the supreme court or takes case this property is very much like the property and in greer it's inside a federal long plave there are streets and were held to be public form yes you are and i again try and distinguish race by saying that the regulation there dealt with flags and banners which would have no impact on the interior of the building and that i think that's a red herring because even if it's a public forum they can regulate the park service that is what goes on in the public form as long as that's a content neutral on place and manner regulation and that would cover things like someone with a bullhorn that would be a very important distinction between someone who's speaking with absolute cation that could disturb programming and someone who simply standing there on the belgian block holding a sign or speaking in a normal tone of voice there is a distinction between somebody using a bullhorn as this defendant was although i've been told not to but this defendant was in a place where he was creating a safety hazard so that the second prong of the of the court's decision which was  they are not blind they could see that people were upset with what this defendant was doing but that was not the basis of their actions that go into the heart of his message what if what if the people waiting in line were upset by the marchers then you're going to silence the marchers and allow mr market average i mean that's a king in choosing whose message you like the no you are there was no picking and choosing the marchers were not presenting any hazard to the operation of the building only mr mark cabbage was and you just said it was because he made people upset no i said that they the rangers simply reported what they were seeing but they didn't move him they didn't exclude him from the park because of that and the credibility determination made by the finder of fact was that this was not a content based decision in fact they have defended cabbage at other protests they have not in any way indicated that they censor him because of his message they simply wanted to move his message less than a block away to an area that has that has more traffic more population more vehicles more visitors and gave him an ample arts alternative if it is a public forum then you have to have the least restrictive regulations for it you could have limited number of people i could demonstrate you could have limited whether they use application hours you had none of that regulation here if this is a public forum and there's no regulation that restricts anything it's except you know what they want to do how can that stand if we each term that this is a public forum because there's no there's got to be the least most restrictive type of laws here and you could have lifted the number of people the a the time place but that's that's not what you have here but your other two answers to that one is that the supreme court in ward said that there is no least restrictive analysis that applies in time place or manner cases and second that this was one defendant if one defendant creates this kind of blockage then what other analysis could there be and the blockage was he prevented people from entering the what is the ice is typically what is the blockage or the choke that he he narrow decide walk by standing on a belgian block by standing just off the sidewalk on the belgian block there are people there not necessarily able bodied people trying to get up and down the sidewalk and as people congregate as the crowd gets big on the sidewalk to enter the building as an unscheduled unknown march comes through as people try to pass through there a large group is now in front of the entrance and how about all the people that are rent tired of horses and event there is and so forth that are also on the village and they are not your honor there is no evidence that any of those people were on park property and the lower court found explicitly to the contrary those people are all off park property on  six tree they were on the street itself they were saying that the people that drove the horses did stay in on the belgian block that's correct your honor and if they were if they were they were not permitted to do so and either were or should have been told to get off the belgian block so that it's it's really just a question of the competing needs of this park with two million visitors and one hundred thousand demonstrators counter demonstrators this defendant has to be treated like every other demonstrator mr particular matter so i asked leave to looking at it we have the obligation to look at the regulator and i appreciate that your honor cause i want you know the government wants to get it right but the oral permit is granted to defendants in order to further license exactly what's in the written compendium exactly what a written permit would say which is this is the area these are the rules in this particular area you now have a permit if we decide that this is a public that the oral permit is is a little bit of a different kind of red herring because the oral permit is done to facilitate first amendment activity to foster it as opposed to requiring a written permit it's to say to someone you complied but we're still going to try and enable you to speak the but the permitting process itself in stories l is is a process of this court explicitly authorized by your basic point is that if this is a properly be managed and the soboth the supreme court in this court have said that because of the competing uses on parks and sidewalks and streets that herman is a proper way for the government to be able to regulate as long as the pete speech is not suppressed and the oral permit is to make sure that the government is bending over backwards and i don't i don't know that any other park would not have ordered mr mark have it out because he didn't have a written permit but this park tried to have him be able to speak in an appropriate location where he could better get his message out to the public still within the park and far less than a distance in this court approved in the stars out case so they ever discussed with him was the one at directly at the entrance to the building and the exit to the building of those other people they were not there was no discussion with them there was no discussion about them or us in analyzing  of the direct exactly your eyes really are because there was no direct air i think they're very relevant they show that it's not content based because if it had been content based they would have the rangers would have had a problem with  but they had no problem with them just with the operations at the entrance on the exit if we disagree with the two lower courts legal conclusion that this is a nonpublic forum what's the remedy should we should we just vacate the conviction and remain and or should we decide the whole case what's government's view on that your honor you should affirm because there is a second the the second prong which is that even in a public forum that this was a reasonable grounds to cite this defendant because he was creating a safety hazard because he had violated the order to stop using the bull horn we shouldn't give the district court the chance the analyze that in the first instance under under the different legal principles that would apply if it were public for your honor they both courts analyzed the question in the alternative and both both courts found that even as a public forum that these were appropriate time place and manner restrictions appropriate citations and that the defendant was causing a safety hazard and for that reason that he had violated both the order to stop using the bullhorn and and not to move what we have here in the court is correct if you look at those videos mr mctavish wasn't walking anybody and had he been blocking anybody they could have said can you move just two feet back something but they arrested him because they didn't like what he said we talk about content based restrictions the court that rapoport who largely adopted the finding proposed findings of fact of the government findings of fact number thirteen talks about the breast cancer awareness march was the i'm looking at the briefing page twenty i don't yes it's in the brief because we challenge each one of the findings of fact because we believe they were all irania says they were applied to mr moore cabbage this was sort of like a conviction that was going to occur not withstanding what what actually occurred that day because everybody else was allowed to engage in whatever type of expressive activity they wanted to except for michael moore cabbage and you can see in the video the horse carriage operators holding the reins of their horses standing on the government talks about reasonable time place manner restrictions reasonable time place manner restrictions regulations i'm somebody should know about them and they were silent as to six treat but even if they did have what they call reasonable time place manner restrictions those restrictions have to be nar tailored and they can't restrict more speech than is necessary to achieve that significant interest that the government has the court they didn't say that they said go to the other side of the building they didn't tell him to go to the video said there's a new area i didn't even know about it's on the other side of the building and you can see him the grassy area on the other side of the rule that each free speech area which was reserved for well it wasn't that nobody knew about it not the rangers didn't but the government wanted to put him in a closet and that's what this was all about that's why here they arrested him when we talk about content based restrictions the court what we what about the bullhorn issue because opposing counsel made an interesting point i mean there was a disobedience of the first order not to use the bullhorn when judge counties pointed out that there was a substantial lapse of time between the time your client was arrested in his last use three times they were not there was some other person that in the video that was using the bullhorn the first time he stopped and then mr maher cabbage used and i think he was told the first time in mr maher cabbage asked why why can i use that i'm not allowed you can see him using the bullhorn on the video well but there was a finding of fact and i think it was ranger byrne testified that the that it was disrupting programming inside and i couldn't find any testimony to rebut that she didn't know who was using the bullhorn she also said that she didn't know who was  is still a fact that that the bullhorn was disrupting what was going on inside the building and she said that but actually if you look at the video ranger burn was standing right next to mr maher cabbage when you could see visitors coming up where's the entrance of the entrance is right here you can hear mr m cabbage and it wasn't very loud you can hear much more cabbage using the bullhorn you can also hear ranger byrne giving clear directions to other individuals ranger burned to testify that she could hear somebody on a bullhorn outside but also admitted she didn't know who it was he didn't know who it was but there was still no restriction those duck boats are a lot louder than that bullhorn the buses in the cars and the horns honking there's all sorts of activity that goes on on six treat to get back to the content base restriction findings of fact number fifteen the court said at the time defendant was engaged in protest activities a six treat sidewalk was also busy with pedestrian traffic and was assigned a queue for park visitors waiting to the liberty bell these visitors had no choice but to experience defendants protest activities the court also specifically rejected the one proposed findings of fact of the government and that was that mr moore cabbage was creating a public hazard the court rejected that in fact even the rangers admitted that he really wasn't doing anything he wasn't harming anybody this was really all about what he had to say and for those reasons we're asking that these convictions be vacated so thank you god will take the matter under