simply inconceivable to me that the press secretary would be powerless to take action if for example a reporter sexually harassed members of the white house staff or shot of racial epithets at augusta at an event or something like that simply because the white house had problems with the media and i don't like the way that you're acting let's take it out and then border and jest respond oh yeah sure let's take it outside and everybody understands that the reporters joking in response is that a basis for a sanction like the one that was imposed here in the press secretary's discretion because the professionalism standard applies which i think the question sort of presupposes that point it's just a question of whether the press secretary finds that certain conduct has violated that the doctrine that you invoke in your brief understandably and rely upon holder versus humanitarian law project to the effect that if you're dealing with a round and which vagueness considerations are in play as the district court reasoned then the decision then one argument that you mark oh and your support is that when you're talking about iran and that's when which magnus considerations are in play it doesn't matter whether the standard could be considered vague in certain applications if it's clearly breached in the particular application at issue and reason i ask the question i did is because you can imagine situations in which even a joking statement about the patient if you think that's out just quickly said that if there is unprofessional behavior we may need to adopt rules unlike for the st year that exists in the press room which specifically itself quite heavily for the opposite proposition the court treats  and i'm saying that that i'm wondering about it doesn't it make a difference sara was dealing with an individual who has not been cleared as a matter of security and you know the statutory authority here talks about security at present in the white house and of course the quote is not going to say we know better than the secret service on security here we have someone who has been cleared and the question is something overriding interest at stake in this case ensuring that the press can vigorously cover the president and the white house is one porton now than ever more in a global pandemic a national crisis and the american people need accurate information about the government public safety and public health and the issues here go beyond this one case as the amicus brief from the reporters committee forty four media organizations and the white house correspondents association illustrate mr burnham is basically ignoring what this court held can show versus night which makes it very clear that the district court held that mr cam's likely to succeed on the merits of the  relies on bread and butter void for vagueness principles that have been articulated in reaffirm and expanded by the supreme court in cases like f c c versus fox television  reporter what the standards are that need to be met and ensure all the court found that the standard articulator that was given a reason given reasons of security was unnecessarily big and subject to him biggest interpretation and that was  the reasons the court reversed and i ask you this question about the standard mr because i just buy into a few assumptions that i lay out let's assume that the standard that's being applied is been and so everybody on the understanding that you have to you have to operate under a professional journalistic standards and is it your position that that standard inherently is so vague  that no action whatsoever can be taken against a reporter who undertakes that kind of conduct and put aside the severity of the sanction just i'm saying that's meandered inherently some ambiguous that even extreme conduct by a reporter morning example that mr burnham likes to use as i argued in the hearing with the district court of course that the white have to take action in the moment and then the question is what about the future and i'm sure about that i mean sexual indecency like we had in the f c c decision and if something is in the eyes of the ball holder president trump think that's it's unprofessional as he made clear just last week for reporter asks a critical question or even sometimes a softball question and so to leave and the white house correspondents association makes this point to leave the question of whether a reporter acted with professionalism in the hands of the white house press secretary or the president is just a license for discriminatory and arbitrary then what so then is the bottom line then that it is that there's no application put aside independent violations of law and then you have to get into what kind of violations  that just put aside something that's obviously an independent violation of law as your view then that there's no conduct by a reporter that could validly be the subject of some response if you know we're lying overarching standard as a professional journalistic no you are in fact opposition all along has been that the white house could take various actions such as calling the reporter and saying if you behave like that again giving them fair notice fair warning talking to their employer  and that's how it's always been done and going to judge point there's never been suspension they said any conduct relating to this at all not even close there was no fair warning whatsoever what about a reprimand what about  control in a way that raised could potentially raise a security concern the secret service has a process standard thirty day notice and of notice and hearing process where it could take action if it we need particularly clear standards but when these due process making a standard apply with particular force when we're talking about st amendment activity yes are traditionally opposed to just continue suppose the professionalism suppose the press secretary tried to flush out the professionalism standard suppose for example that said that outside of the press briefing room when the press is cover honor it would that would raise a different question and judge contrarious noted that that in the cost a letter if it put three dollars specific rules relating to such pillared example where there's a press formal press conference and explicitly said we're that is again just misguided it was a civil punitive damage case where the supreme court held those vagueness standards that come from the criminal law apply forcefully in the civil context and when punishment is involved and here miss gresham was very clear as the district court found that this was a punishment meant to punish mr karem for what he did and her skewed version of it and to deter him and others from the future activities so it's a civil punishment and judge taylor if you when you go when i went back and looked at fox television the f c c case the vagueness case the court there found that the the fact that one of the  media organizations had not even been fined it had been found to have engaged in decency pursuant to a vague standard and the f c c decided not to find it but because it had announced a fin punitive damages or civil punishments imposed in cases involving civil litigants this is much more of a public facing punishment this is the white house the present a united states punishing reporter for engaging in journalistic activities on the white house grounds a vast much more public that's the government cracking down and punishing a reporter for speech activities that is much much more implicating of due process vagueness principles as the fox television said it this is particular rigorous adherence to those principles there's a much stronger case and i've been a big advocate in the punitive damage or this is a even more important area where those vagueness principles and fair notice princip if you specify a particular applications there's more notice but one of the problems with requiring specification of all particular forms of conduct is that there just may be forms of conduct that one just doesn't predict district judge that i was in a joking manner but let's just take it outside the particular context of this case i don't know that you'd predict that there would be a situation in which a reporter would seriously propose an altercation with a guest at a white house and that well right yet yet if there is a now rushing standard of professional journalistic norms one would think that conduct like that would be swept up with then within it even if it wasn't specified and might not be specified just that can be dealt with in the future this isn't some problem that has come up over time that needs to be addressed it can't be addressed in the future and i do what i can charge to tread lightly even by the future you mean that you can't have a backward looking to spen the standards in advance your honor and and warning that something could result in a suspension or revocation of a past could there be standards laid out yes but i do want to i can just briefly address the factual point here because mr burton and ms gresham rely on their skewed version of the fact that district court made specific factual findings rejecting what they say that mr carroll he didn't admit that he did anything of copper he said over and over again he was just saying he wanted to talk he was joking that his personality the district court he basically made two irreverent caustic jokes and then this own rule the rocket struck us like outness fear he was reacting in real time i don't know how you could have standards that govern something like that you know and it's so subjective it's so more that and president trumped up for better or worse create that sort of atmosphere i tend to find it fascinating but i'm not even being critical about it but i want to examine this could someone know where you have the president calling reporters the enemies of people and make a news and saying you're a terrible reporter because you asked me a question about what the american people if they're scared how they should react to this carnival how could anyone know what might be deemed unprofessional and without some sort of standard so you're we can't we understand that the white house needs to be able to ensure some of degree of order the white house and back for the benefit of the american people we get information we start having the president and his press secretary determining that they don't like the question it's too mean it's too rude and and if you look then then then that's a real st amendment danger and that's why cheryl requires meaningful explicit standards in advance and this wasn't even close to the  actual question and i looked all through the record it's a very bizarre statement for demonic possession and that a lot of people did seem to laugh but known for having this jocular sense of humor joking doing rodney dangerfield impressions and that was a little spin on his rodney dangerfield take and rodney dangerfield would say things that you know kind of out there and so people la told a joke twice you know like a like a comedian might do but that's the point where everybody laughed and look at the circumstances and the reporters were being taunted mr gorka started out with his fake news panorama and reporters calling them fake news it was a back and forth it was an unruly event as the district court found but we don't punish that and in the united states this is free speech that's our you know a carnival like country we live in and this was after the press event mr karem it asked to the president to answer some questions he declined this wasn't like a cheap digital proceeding and and just about anything you think he even you think it could be punished if it were if there were standards set up beforehand theoretically reserve the right to challenge those standards as vague or improper arbitrary or discriminatory but by the way it's not just whether it was arbitrary mr burnham leaves out the fact that the this court in shuttle said there must be a compelling reason to deny the path is a really compelling mr karem told a couple of jokes and then when back to the factual findings here this court does not need to defer to ms grisha and fact finding and cheryl doesn't say anything like that and judge toler you pointed out this court that it could review the ultimate conclusion of the secret service but here we have disputed facts the district court rejected miss gresham analysis and and so we would reserve the right to challenge findings based on standards but there were no standard cost a letter said we are not imposing standards ms grisham said in her august two letter we determined not to establish explicit rules in cheryl says you have to have explicit rules that's why we're clearly likely to merits there's no question it's a reparable harm to to be denied the ability to cover the white house and go in and do your job this court's decision in in pursuing american greatness the supreme court's created a very small some record here dead actual record in the government provided no factual record other than the videos but but that was then and i'm so i think we're we're easily likely to to prevail america if we were to go forward we would make out even more fulsome case about the history of what has happened in the white house grounds as judge contrary time we did provide some evidence we would flash back out we would probably bring in other reporters imposed the judge found against the government at least so far unchallenged factual findings as to what actually happened in the district court watched the videos over and over again or read the declarations that we submitted looked at the other end and so we would probably expand on that but i think at the record it's just very clear you can't punish a reporter who has a st amendment liberty interest that the government isn't challenging under these circumstances  one more point i know i'm over my time this rogers case that the government mr byrne really put a lot of weight on it completely different situation there the supreme court held that judicial interpretation the common law  the cause the death of the so it was a fair notice of the conduct and and it was just it was a judicial gloss on an existing standard that's just a completely different circumstance here and the government ignores doesn't even cite the interaction between a white house guest and a reporter beforehand i know that's not what we have here stipulate to that of course but if we run in that context and a reporter just said that to a guest on an event that was covered by the press system build in to our democracy and a boost versus very case justice o'connor said you know against speech that might be viewed as insulting to diplomats that's too vague that's too difficult to discern  and so i think that it's just very difficult to say that any particular statement in a vacuum is inconsistent with professional journalistic activity should journalists be simple yes but sometimes then box it was about the f c c as general regulation of entities that is totally different from what we have here which is a discretionary program where the government has a very special privilege to people like mr clair i'm to come into the white house whenever they want the then there was a press conference with the president the secretary of commerce and the attorney general and then that angered and then the events of this you sort of pick up right after that so if you look at the video as you review the footage it so the only response i think to all of this that mr butros offers is that there's a risk of discriminatory application and i don't think that makes sense for three very simple reasons st the congress here is not journalistic conduct so examples from his declarations are about reporters trying to ask questions or being intimations from the efforts of reporters and this has nothing to do with that this is not mr kerry i'm asking questions as a reporter that's why this is so much easier i think than the acrostic case because in the acos about an outside the context of a journalistic combat behavior around the white house and that's why i think the racial epithets and the sexual harassment in those hypotheticals have a right of course because these reporters are not just their german pre they have the same ability to come on to the campus but a member of the staff and that is a very special privilege but in very small number of people it has and as people who sign up for it understand comes brings with it an obligation to be responsible and