injunction in this case prevents the united states from addressing a serious national security threat posed by foreign adversaries espionage and surveillance efforts as most the restrictions at issue here implicate a time place and manner restriction that would be subject to intermediate scrutiny under the constitution and the restrictions plainly satisfy that level of scrutiny they basically are there the government's own affidavits support this idea that within one to two years the restrictions would shut it down this doesn't become a less problematic kind of the st amendment because it states but then to goal is to have that take place over a transition period of approximately one to two years so i think if i does that say that i mean and basically you just acknowledged which i think i had prefigured doing because it seems like that is the case that they're trying to shut down we chat they're not there's a lot less restrictive alternatives that could have been used other than shutting down we chat why why doesn't that doom the st amendment  most significantly because the least restrictive means test has no place in the intermediate scrutiny analysis which requires only narrow tailoring and that narrow tailoring is intitled to a good deal in titles the government that is to a good deal of leeway in assessing how best to address the particular concern we see that for example in the many sign cases that the supreme court in this or have decided and so for example this court has held in cases like lone star and she caves in court is held in cases like taxpayers taxpayers for vincent that there's a lot of leeway in the way a government can address even the kinds of which this court announces of ample alternative channels for certain kinds of signs that were presented in that case it was a total ban on x kind of sign and the court said that there were ample alternative channels for the plaintiffs there and other sign users to express their views using for example radio and bills television in other words very different mediums of expression and sold through here as we cited in page forty four of our brief and referring i think it's to excerpts of record page four hundred no two the there are ample alternative channels for these plaintive breath in communicate their views on and one reason why we chatted popular is there's not a lot of competition within china on other alternatives so what are there other alternatives that have the same brief there are ample alternative platforms of different you know that platforms including line signals sky zoom and cetera that are not blocked in china in addition to those that are blocked and there's also by the and reach users in china there's no dispute about that question as to what this boils down to the judge nelson is the preference of these plaintiffs for the particular features in this app and then explain why that's not an appropriate probe to the alternative channels analysis under intermediate scrutiny imagine if you will that the russian government or the iranian government created an app that was the sole means of united states plaintiff's argument is that because that kind of app permits and facilitates communication where expression of use the st amendment prohibits the u s government from protecting national security by preventing that app from being downloaded and used in the united states the constitution does not permit a foreign adversary government to weaponize the st and then that's not how this works so let me ask you about this i read that is books that the st minute she is not implicated in all because this is not a regulation of speech in any way but at most drivers a time place and manner restrictions for the following reason because like for example the sign restrictions addressed in texters for vincent or lone star g k limited it targets a particular medium was formed in which communication can take place and it says that that medium is not permitted that that's that is classically a time place and manner restriction in the sense that it doesn't prohibit speakers and us from speaking it in the supplemental excerpts of record by i believe the skull and i'm sorry don't remember the names of all the other clarence the their analysis of the alternative and platforms that are available and all know that they don't  platforms that may not themselves offer as the declarant say platform based immediate translation from english to chinese or vice versa but that's not a restriction on the use of the chinese language for so for example line and signal permit text based messaging in other languages as i understand it and there's no evidence in this record that contradicts or that demonstrates that they don't permit any use of the chinese language a careful analysis of the declarations i believe confirms that what the plaintiffs are concerned about is the convenience of using this particular the st amendment does not preclude the government from using its national security authorities against that kind of platform or medium that's that's what this case is all down to true well the feature channels and that requirement of interviews rooney we don't think features are relevant really at all if you think about what this course was by comparing radio television handbills to songs th features of signs are unique compared to those alternatives but the features are not what the st amendment protects with the st amendment protects is the ability of a speaker to accept them as themselves to an audience know but they're communicating are this platform because of the features that are there if you shut them down then they're no longer able to communicate in the manner that they were before isn't that right so that is  again the st amendment doesn't protect of foreign business merely because it offers a unique were particularly attractive a preferred method or speakers to communicate that's what it is argument boils down to and there is no support in case i think we decided in the one thousand nine hundred and thirty the supreme court held it was in an impermissible prior restraint to basically shut down a publication just because they were were publishing defamatory content why isn't that analogous here is seems to be that's exactly what the government is doing and just because there's a statute that allows the government to do that you know judge nelson and i'm glad you brought that up because this is nothing like the prior restraint cases any of them and so start with near and then turn to some of the other examples that i just from my own in near what the court the supreme court emphasized is that prior restraint which is to say future prohibition on publication an expression of the speaker's own views and this is critical to the speaker in that case was the newspaper the newspaper was expressing its own view the speakers in this case are the plaintiffs not we chatted we chat and emphasizes throughout its terms of use in reliance on section two hundred and thirty dollars and elsewhere that he is not responsible for the content of user or activity on that platform these plaintiffs are not in any way being restrained from say anything they wish using another platform and that's what differentiates this from near and from other categorical prior restraint on and subsequent cases emphasized that where there is a permeating or licensing requirement that we use discretion in the hands of a government official and that discretion effectively permit what would have what would amount to content based discrimination or viewpoint either based discrimination this is the st amendment is particularly concerned about the that kind of exercise of discretion there is no such licensing or permitting process here there is a clear and categorical restriction on a medium just as in deciding cases k lodestar taxpayers for vincent that has nothing to do with prior certainly right that they are procedural statutes in the sense that they explicitly clarifying the president's authority to address a national emergency but it doesn't but but the but the n e a could apply for example to a declaration of a national disaster  has either place something off limits for the president or effectively reserved to itself the right to regulate in the future more specifically in matters touching on a st amendment then the president doesn't have authority here to issue this issue this order just by the question you raise of constitutional avoidance might be relevant to the district court as it proceeds for example to summary judgment but this court particular harms they claim to have suffered those are all based as the district court explained solely on the constitutional arguments in the district court here expressly concluded that it did not find a likelihood of success on ensured concerning the tectonic mobile app precisely on and a determination about a likelihood of success on the backside of the argument i may just conclude the answer to your questions is by the the case the case on the appropriateness of reaching and agreed with the district court in d c on the application of seven you know to be won for example would we have to do any of the balancing analysis but that would be required under they say the st amendment prohibits it and for that reason even if his court were to conclude that it should address the statute st place it is content and it should also address the constitutional right but there would be no reason to do that up the constitutional avoidance question if i'd give i thought if i agreed with judge nicol then i don't and reach the th you know to be one question and thought that it was applicable i don't i don't have to do any balancing under the st amendment do i i think that's right just by the as to the statutory question itself but let me emphasize again that in in the d c circuit plenary injunction pealed that the government receives the government recently briefed and argued supplemental breeze ordered by discords who is ponty it would not be appropriate for this court to address in the st instance in this case without full briefing and an opportunity for the parties to be heard and the district court to exercise  discretion those that did the district it's my recollection the district court said it didn't have an adequate record to rule on this ship is something like that is that correct and i don't that's not my eighty four dollars eighty five cents of the excerpts that the record and the arguments do not allow the courts conclude that the plaintiffs are likely to succeed on the merits of their claim so i don't think it was just that you know there was an inadequate record but that the court last maybe my maybe my last question which is i don't understand the government's argument about waiver on so your honor in this latest response is bree's they say that discord they ordered supplemental briefing that they took a different position and in that sense because the the parties have presented their argument in their principle agree that should frame the disposition of this and you know but i don't but i understood the is in no way of preservation of an argument that the court that this court on appeal should a firm an alternative round alternative legal theory the entry of a preliminary injunction on constitutional  appeal from a preliminary injunction i'd be happy to address the questions about how the statute operate is judged by the but i want to be clear that without ample and full briefing of the questions and the twelve to thirteen paid read from did not sufficient if you look carefully at the at the full briefing before the d c circuit for example there are complex and multiple questions presented about this and we urge the court to be cautious before striking out on thank you your honor navy the court the government and if we chat is unprecedented and plainly unlawful the government sought to block a medium of communication relied on by chinese americans to communicate within their community and to friends and relatives in china they lack the statutory authority authority to do so under any and their precluded from doing so under the st amendment collimator only in joining the ban was plainly correct response to the discussion  byron i have three main points i want to make st the reach out and saying the violate the terms of the government cease to regulate or prohibit indirectly if not directly personal communications and international business regulation but the government has been pretty open and it's pretty clear that and here is just business business but to regulate speech or regular regulate yeah they said we believe we chat is a fraudulent corporation you know it's funneling money to terrorists and therefore we're going to shut down we chat with that a that would be a different case then that would fall under a bed because in that in that case the government wouldn't actually have the intent of shutting down the speech but would actually be handling a business transaction  not sure that would fall within a year of the government has a whole host of other truly at hand and there's a lot of overlap between the i and st amendment arguments and i think that would certainly be a relevant factor under the st amendment u e the question is whether they are prohibiting the communications over here prohibiting the international change of information and if that is in fact the direct to limit the president's authority the government acts as if it was a blanket graduate ory but it's not it was was passed in the aftermath of vietnam and watergate and the determination that brief and it's also let's look at the primary case they rely on for saying that the court can't reach which is the ball you run trees that was a permanent injunction out of luminary junction after a seven year trial where the court does not involve the same sort of balancing as the st amendment congress regularly prostitute that address issues similar to st amendment arguments but go further this is just a b if th and she said i don't says i don't have time to reach this well well it is interesting she didn't say she didn't have time she said the record of the argument why is that what what more  didn't have a hard time understanding what more record you would need perhaps maybe she felt like the arguments were fully lost in that i think is there something or there could be needed in a record to know thanks for your honor and it's important for this specific purpose to understand a little more about the history of how this litigation proceeded we studio after the nd quarter was enacted before the itself authority to act in the b one b three context of seventeen o two that is that it hasn't it hasn't entirely bought your theory of the st amendment here it's at least said the president's not going to do this at least president's authority and congress then held a series of hearings regarding we chat concluded that that it presented a danger and passed a law that was effectively the same thing as the secretary of commerce has done here under the so if if we were to run down the st the st amendment road and we agreed with you and agreed with the district court and congress then responded with a series of hearings on we chat would we have affect with normal of this court make a ruling that determines any legal questions absolutely beyond that i don't think there's a precedent for saying that or ruling even on the merits is that the government hadn't shown had it demonstrated that we chat was in fact is significant portion of that risk that the evidence that we chop was being used to surveil in the united states was real i mean actual acts that the government proposed that the specific plans these company to company transactions they purport to shoot preclude have nothing to do with any surveillance so their goal is according to the government to shut down we chat in one to two years and there's a factual question whether they were shut down we checked instantly or over the course of a couple of year long period  security problems that you can communicate with each other in any other way that you want now would you explain to me what are the unique features of this that mean that this is a suppression of communication and not communication like email or a phone call or a signal message it's a it's a form of social media it's a form of new is sharing it's has it's a form of  are there are lots of other but not that not that this community uses and not this community that people within the united states can use to communicate with china it's me so facebook has many of the same message functionalities but facebook is banned in china and one of the specific uses one of the reasons that the chinese american community that's trying to start answering uses reach out is to communicate with their friends or relatives in china that's protected st amendment speech and saying you can use facebook it doesn't allow them to do that it's it's just far afield they couldn't talk to a specific person through them and this goes again to the balancing that is necessary under the st amendment analysis which is for example if the government had in fact had been put before the different port a factual evidence of significant surveillance or espionage on we chat in the united states then the balancing of whether that was a appropriate whether it would be appropriate for them to block that channel even for a for the communications might be different that's a classic st analysis what they're saying  is based on our hypothesis that we chat might be used for this or we have no actual evidence of it we should be allowed to block it entirely and  urge you to say is well if the government could actually prove that this was being used for espionage then maybe they doubt have the ability to do that but here it's just a supposition and i mean i think we owe a lot of and again neither my plate at my clients nor the just report question that but every one of these pieces of the government uses for this proposition of deference the national security context talks about how that's not and the courts can't abdicate their roles here they must still look at the question my my point was more that essentially this is the more evidence there is of harm and of government actions that are targeted directly and addressing that are the more under a st amendment analysis they clear the french on speech here the problem isn't just the lack of evidence of harm though it's the lack of instead of requiring the data to be who is in the united states setting up monitoring systems these are all efforts that would actually allow for blocking of surveillance and general private data privacy laws in the united states might actually do so too there aren't any they are addressing this problem through means that will over the course in their own view of the next two years let the chinese government continue to surve foreign adversary and the particular means used by the executive to address that object is are entitled to deference i think opposing counsel recognizing couldn't couldn't the government do that through  proposal now won't get into specifics because some of it under seal does not adequately address the national security concerns that the government is entitled to deference in its assessment of how and whether a particular and if we were inclined to do that course the players may have been anticipating that we should have to remain and that if we were true against them on the st amendment the government in a slightly different position because i'm suggesting that there may be an alternative grounds for affirming the injunction that may avoid just the government really might not want to have if we were inclined to affirm the preliminary injunction on st amendment grounds so that is if you were given your choice between losing a white ground or losing another ground you might well prefer to lose than to lose on the st amendment because i might be a greater constraint on what hungers could do in the future so let me but the question i have is what really is there that you could brief that is different from what you have already submitted to us just say two things out that st of all we were constrained significantly by the limits imposed by this court on supplemental briefing by comparison to the twelve page brief we submitted here i believe we submitted approximately eighty pages of briefing and plaintiffs submitted a full responsive brief in the d c circuit as well and likewise you know in the other appeals that are proceeding so st of all just as a matter of vision one and subsection three plaintiffs i think in their complaint addressed others we did not have an ample opportunity to get into those either in the briefing or in the argument and so i'll just as i just you know remind the court that argument st they can see that the national security concerns here are significant and real we already emphasized the need for deference which they also acknowledged the restrictions here are nearly narrowly tailored because they are designed to prevent the continued expansion of the collection of sensitive personal data on u s users that would be available to chinese surveillance and intelligence agencies the goal of the balancing of the interests of current users including these plaintiffs compared to new users is particularly stark and by the way the supreme court in williams yuliya emphasized the need to accommodate even under a strict scrutiny analysis there that kind of balancing by permitting some speech prohibiting other speech particular kind of harm is particularly dangerous as the supreme court recognized in humanitarian law project five hundred and sixty one us and ages thirty four to thirty five thank you