we urge your honour's to overturn the decision of the district court for two reasons st final jury instruction number four was unconstitutional because it criminalized language based on its viewpoint and was vague in a way that lent itself no your honor in order for the government to prevail on a theory of harmless error they have the burden to prove beyond a reasonable doubt that mister stagnant would have been convicted even if the jury had been properly instructed and this is a high burden that they can't meet here in the absence of a special verdict form we don't know whether the jury convicted mister stud know precisely because of the improper language portion of the jury instruction and in st versus new york the supreme court struck down a conviction for flag burning when it was unclear from the record whether the defendant was convicted for constitutionally protected speech or whether he was convicted for constitutionally unprotected speech so where that ambiguity exists it must be remanded for initiative versus this circuit held that restrictions on language that demean an individual or group are viewpoint based restrictions that mean is that even that a restriction on racist speech in a v a hospital would still be a viewpoint  honor we agree that we're not dealing with the restriction on race of speech however that nd portion of the jury instruction that your honor read does have a basis in law because it racist speech is not enough for the speech to be considered a however this standard for reviewing the language of the in jury instruction is is didn't know whether it has a basis in law and it does have a basis in law under united states versus good chat and under american defense initiat problem here and this is what it is because the language of the jury instruction the otherwise improper language portion was was so was so they the issue was that if the jurors had found that the use of the rac epithet alone that would be d a viewpoint discriminatory application of the instruction under kuchma and under american defense initiative so we agree that this isn't a regulation on racist speech but if the jurors applied it as a regulation of racist speech that would be an unconstitutional viewpoint based regulation with the limits to your argument that the jury could have could have said the disturbance was solely the speech your honor the instruction as provided require the jurors to determine two things st was the speech otherwise improper and nd did that otherwise improper speech tend to cause a disturbance and if that st portion of the analysis was the speech improper that requires that is a viewpoint discriminatory application it in order in order for that to be a viewpoint neutral restriction we could look to the lout we could look to the loud portion portion of the jury instruction the issue is that because improper is both facially viewpoint discriminatory but also allows for a viewpoint discriminatory application that st portion of their analysis is a viewpoint discrimination regardless of whether it your honor i'm sure that mister beaver's would be able to speak better too to the details of the record in that regard but it was our understanding that when mister stockton testified he admitted that he used the racial epithet that he used disrespectful language and deny the other accusation s the fact that the jury acquitted him of the assault charge and then the other fact that the jury also gave the communication to the judge after they convicted him on the disorderly conduct charge that they had convicted him on that charge with some reluctance because they have the jury instructed on his theory of the case which was a st amendment theory as long as that instruction was supported by the law and whether that instruction was supported by the law is up for this court to determine to novo and it is supported by the law under t or at the core points out this appeal is about the adequacy of the jury instructions whether they were correct on the law adequate to guide the jury's deliberations and they were and they also fact that's what he did argue in closing with that his conduct was limited to verbal insults racial epithets and that it did not in fact and to disturb the operation of the clinic and that's the misrepresentation that record is as the typically as rushed but what about the yank i understand that it didn't focus on the racial nature of the speech but the phrase otherwise uncle it would not have been harmless because for the main reason that he although there was evidence on many of the worlds of the disorderly conduct statute the that it tends to cause a disturbance because that's also subjective and that is all the well because it's based on the subject