in a city officials through the process is through their application what they have done is that they have take in his speech in a public form that is been set aside by the college itself and determined that his speech is disallowed due to the policy of demean any expressive activity that is disruptive of the learning environment and in implying this extraordinarily vague policy what they have determined is that the word disrupt can be anything like a complaint just basically someone complaining of being disturbed and that the learning environment can actually include the designated public forum itself that outdoor courtyard well wasn't the problem was that he was speaking so loud that it disrupted the classroom activities it in disrupt any classroom activities actually are there wasn't any proof of that in the record what there was proof of is that somebody went through the courtyard the outdoor courtyard which was the designated public form and she complained about what she heard saying that she felt uncomfortable about it so there's actually no showing of any interference with educational activities no interference with the classroom but someone complained about disruption and that's really the constitutional issue that we have here because it really bally's constitution two respects one is a freedom to free speech and also freedom to due process as far as free speech is concerned since i'm looking at apart from the one student who reported to consent to campus security two administrative employees submitted declarations indicating that they also found him to be disruptive flee well despite being the second floor of a building next to the courtyard one described his voices sounding like he was using a bullhorn and both said the volume startled and disrupted them  they were on the verge of calling security themselves when they saw that security was already approaching them two security officers also submitted  declarations one said that he heard to concern from outside the court yard and asked him to lower his force and then heard to concern from inside his office with the door closed  again asking to consent to lower his fois etc without so there there was substantial evidence was there not that as the district court found that he individuals and what's significant about it is really the only complaint that triggered the action itself was a person who was in the designated form itself they didn't know about the people who were in the second floor they didn't complain until well after the fact they didn't complain at the time and so it's interesting that that had absolutely nothing to do if with the fact that it's not forgive me i certainly judge if you don't complain at the time but then the question is whether it was in fact disruptive the fact that you were disruptive and you come forward with evidence to that effect later is still relevant to the court's interpretation is it oh i think it c a complaint so when complains about something so really volume is not an indicator as they don't use decibel levels they don't try to objective measure the sound what they go by is individual complaints and so they receive individual complaint from a student that went back in the two individuals they talked about how how it bothered them later but even with that that was just their individual complaints there was no showing of interference of classroom activities no showing with interference with any type of educational activities all we have here is a showing that individual said that they were bothered they were annoyed and what that what the supreme court said what this court has said time and time again is that she is not a valid the problem is here in the appellate court we're not in a position to make those sort of factual findings we've got a court deference to the findings star made but let me ask you about the exhaustion issue because there was a window of time within which dealing with constitutional rights you're not obligated to have to go through a procedural process all you really need to do is use make your claim and you do it in federal court because as that's the basis on which you make your client and then as far as the deference actually this court is not to defer because this involves free expression this court in one thousand nine hundred ninety seven in the san antonio community hospital case said that when you have a case involving the dumb how or really of the issue involved this court is to really review the record for fresh examination and reviewing this record fresh examination what you find is that all we have here are subjective complaints there are no objective fanning's of interference whatsoever and actually that's how the policy works director johnson was very clear about that when he explained it to mr dix and you found that in exhibit that's referred to in page seventy five in our record excerpts and that's an level needs to be so it doesn't matter what your decibel level is because you cannot speak aloud in this was we're confusing him because he told them he was there to preach he was there to deliver a speech and then he was told he could not do that he said the only thing you could do was to speak for individuals one on one conversation like he could not preach he could not deliver a speech director johnson told him that he could not preach and director johnson told him specifically that he could not speak loud enough to be heard and that's really striking when you have a designated public form the quitman of a traditional public for where you tell a speaker he cannot speak loud enough to be  heard and what we have here is the only legitimate interest they could have the excessive noise and that would be legitimate but their standard really does not address it because it just includes way too much speech that would not be excessive because it's all t complaints and it's not to an objectified being that is actually excessive because that's not really part of what they're looking for because again what they look for is their disruption now in disruption i think  in ordinary sense could involve which i think you mentioned judge rake off and that would be teacher saying hey i'm trying to teach a lesson here and we really came to do it because of the noise outside that didn't happen here is really someone going in a for what seems to me that that's really  right what's disruptively loud when the student complained and when you've got evidence in the record from a couple of administrative employees saying it's disruptive to flee route we're only at the preliminary injunction stage let me ask you as a practical really is the rub of the matter and that really is why it is very appropriate for this court to get serious this time judge and he has because what they're telling him is that he cannot preach he cannot speak so as to justify a complain partly asking is it appears from the record in this case that he has been banned indefinitely but there are some indications of a more informal nature that the college was holding out some possibility of return but it's sort of vague and it has any kind of formal arrangement been offered to you there was a letter actually sent this past week to this past week the condition was that he'd have to show good calls for violating the policy and so sure that he wouldn't be able to come back but then this week it was a letter sent saying that he could come back again campuses so what he tries to do to generate interest as he tries to speak aloud so they just start speaking people hear what he's saying some are interested some are not and then those that don't are they engage with him in discussions and questions maybe some debate but that that gets them talking and so really without the ability to preach it really depress him an opportunity to speak and so that's why in addition to not really being a nearly tailor measure in the universe back because it bans his speech and also you have the extraordinary discretion involved here is that it deprives him of alternatives in which to communicate his message and i think a case of that really isn't very instruct s supreme court case and that's say a versus state of new york so like in forty eight supreme court decision and want one i think that's important because the facts really track what was happened here where you had the chief of police who granted a permission to a preacher to preach in a public forum and but there were complaints about his his preaching points didn't really relate to content they're really related to say out there but what about granted yes which seems even more closely in point where the the ordinance was that it was improper to big quote any noise or diversion which disturbs or tends to disturb the peace or good order of a school session or class and that was held constitutional it was and i think if that language was used syria i think it would be upheld constitutional as well but the problem is that's not their standard that's not what they use it's not a matter of disturbing actually have an actual disturbance of a class or some type of school setting or it requires a semi to comply and so that's that's really the difference between great ned in this situation is that  good morning in may it please the court i'm derek edwards the assistant attorney general representing a pelleas warren brown and darryl dickinson north you know a college welcomes now and students to come on campus the only requirement is that they not be disruptive substantially disruptive or  understand the present state of the record this gentleman has been banned indefinitely how where do you get the power to do that the worst thing he did was speak a little power then with no there's no indication of prior recidivism or anything like that you have the power to say you're banned for life from from our public area of our college campus the call that this circuit and souter said that the colleges have the right to protect themselves and in that case it was an indefinite suspension from oregon state university in this case the indefinite suspension is tailored to dickinson's refusal to abide by the call of his nor reasonable rules to go ahead and stop disrupting classes he's made it clear his posture from the entire throughout this entire proceeding is he has a right he believes to go ahead and preach so loudly as to disrupt classes and till he changes his position in that regard it's reasonable to go ahead and require that he not come back on to campus if he changes his mind and says ok i can take your reasonable options that you've offered to me to speak one on one to go ahead and lower my voice to pamphlet like everybody else that comes on the campus then there's no reason for him to be remain off campus it's not a life the you presently you've told him you're out period and you've also said don't tell us that you had some objections you've exhausted you were much too late  so so what reason does he have to believe that he can come back if he speaks in a more moderate tone well the first point was is that the trespass rule that he  the ban it was your honor and that doesn't make it unconstitutional well it doesn't violate the actual language of the code itself the statute itself seems to contemplate revocation temporarily or for state it period of time so i'm bothered by the same issues that judge rieckhoff was really raising in that the record that we have doesn't suggest any particular period of time now i heard today counsel from mr dickinson clarifying that there's been some communications which have not made it into the record before the court me i suspect they're not in the record below because of the recency of the events but  the college has attempted to clarify the terms of the revocation either to what you tell me to clarify and at that time limit duration or is that conditions upon which he can return because those things  aren't in the record right now in your honor it's not in the record and it's difficult to get into the record at this late stage but the college has lifted the trespass notice with the admonition that mr dickinson must abide by the college's rules if he comes back on the campus and not yell or shout for an extended period of time getting back to your question and not being in the in the in the rule that the trespass rule there weren't he could have exhausted his administrative remedies he could have gone up the spear according to the administrative procedures act and if he had challenge that rule promptly within within five days surely the call it would if i hadn't said you're right no this rule says it was supposed to have a duration here they could have said something as simple as you're trespassed until such time as you agreed to abide by our rules i think that would mean that would have clarified it that would have been appropriate but you're not prepared today to put a time duration on this fan correct today he's been as i mentioned he's allowed to come back on to campus so it's been lifted but it would be really difficult to find and it's been unconditionally left that you're saying he can come back to campus and then if he's deemed to be destructively loud again then he's going to be asked to leave again or or is it been left to conditionally so long as he creates not to be disruptive he's allowed to come back on as long as he agrees to abide by the call just proves so that's unconditionally if he violates the college's rules by shouting and yelling then he likely will be asked to go ahead and quote be quiet tone it down again if he doesn't he can't do that then he will be trespassed again we have a problem in that it's hard to go ahead and come up with an eye time limit to trespass somebody he doesn't believe that he's and he has to agree with our rules so what do we do give them a six month trespass notice a year we'll come back on again at that period of time and said well i might my time is up i still don't agree with your rules and you know every day criminal actions someone uses a drug that they think they have a right to use to losses they can't so they go to jail and at the end of that time they were free person and they can do what they want to if they choose complained about it and so you're outta here forever in less you affirmatively say that you will not speak too loudly although we're not yet the finding in terms of decibels or any other basher exactly what to away through a closed door told him four times to quiet down told them to leave three times the two witnesses remarkably after eight months before between the time of the incident and when they filed the complaint were able to go ahead and hear them that you don't need to prescribe with precision the decibels that you're going to go ahead and each wound we know in war did that and the neighbors around central park said the rock music was too loud and so they had to use the cit order to go ahead and lower the voice even though people couldn't hear the message that's very similar to this case he wants to with the dickinson wants to preach loudly he wants to go ahead and reach everybody he can  but he can't do that in the in the in that particular venue there might be other venues that would be great for that but this code is very condensed he's surrounded by three buildings a library two buildings around the way we'd love to have an open space like the university of washington or someplace where you go to red square but we don't have that here so if somebody wants to speak that loudly this is not an appropriate venue for that well what he says i'll come back on campus and i'll speak loud enough to be heard but not to be disruptive you know there has to be some judgment for school officials we heard from tinker that school officials need to be able to reasonably forecast disruption  disruption and substantial interference or the tinker and heli standards that apply to colleges and universities and schools discretion under the first amendment has to be used with great caution or it can easily just become a device to ban someone who speech you don't like that's true but the court the supreme court would more has said that schools and universities are different than parks instance in sidewalks and they've been going to have a lot more rock music and we need the flexibility to i mean you saw that in bethel school district that we can't anticipate all the disruptions and things that happen at schools there's a plethora of things so with great restraint they trust passed mr dickinson the colleges what goes for from here because under the terms of the statute that you're relying on it contemplates some definite duration and so now you're saying you're  work that out and what you're offering to mr dickinson is come back but only if you tell us you're going to comply with the rules well it seems to me he saying i intend to comply with the rules i will behave reasonably and not be disruptive lee past it just seems to me that it's a situation where you can sit down and work it out set the duration haven't come back see if he violates the ban again well i think that would be appropriate and you're right the the rule does say that there should be a duration stated as i said that that's the it's a state's state law substantive issue not a constitutional issue which is what issue here but the first time around was cooled off come back again it's indefinite if you came back if you ever came back and said you know i'd like to go i hadn't come back on i won't i won't be as loud as i was before he's never done that and the college finally has lifted it but if  if he comes back on does it again then what's the what's the college's recourse you know it has a has a right to be able to protect itself i guess a startling reaction is it isn't true that if there had been a duration let's say a year he would then have had the constitutional right to come back on without making any kind of agreement you know advance if he then violated the rules again and you could kick him off but he he was not he is not required if there was a duration to give some sort of advance consent to your rules or whatever true so you're not offering  the same thing that should have been offered if you had had a specific direction i think we are i think the i think the call is basically said that you're allowed to come back in again but you must abide by our rules you know it's kind of like where is there a formal document that's the letter that was referenced by mr killen that it went out last week that the college has lifted it but advised mr dickinson that he needs to go ahead and comply with our disruption and interference rules and if he doesn't he's going to get tres letter that has an indefinite duration state it is in violation of the state rule that the college agrees it's got to by by we may not have to reach the potentially thornier constitutional issues that the appropriate  e there are many cases where people have been barred from a form for their activities in and once they are you know all this i read the much more extreme of the situation there are there's a case called  virginia versus hicks a supreme court case where six justice scalia said that you know if you've been banned from a park for vandalism you can't come back on to campus again just to go ahead and join a protest you know so and then even in albertine it was one hundred dollars worth of damage pouring some blood over some bodies some documents and the court nonetheless upheld the nine year you know and think there's a major difference between penalizing an act of vandalism and just penalizing exercising your free speech rights in a too loud voice i think that they're both forms of protest to their unprotected speech he was protesting the military he did so  by damaging documents and we have the same thing here he he was he was speaking at you out of a volume which is unprotected speech in this particular form it wasn't based upon the content of his speech or this or his view point  you just tell me what level i need to be i want to preach but not be too loud but he was not given that option you say no you can have now live sure you can talk to people conversational he want to one but you cannot  an arbitrary thing about that is that they allow speeches in that area well that is the once in a position they seem maybe to be taking and we need may need to clarify as certainly if they've said the trespass is now over and all right thank you very much counsel the matter submitted for