respectfully request this court reversed a lower court's order on summary judgment because the policies and practices violate the st and then the city created a public form the city did not own was the point and content person or group for the whole sense of discovery and this is before the lower court in this court we have discovered two hundred and eighty four applications specifically for use of the flagpole by private individuals including thirty nine the year before this particular night two hundred and eighty five dollars was our application and that was the only one that was denied no flags was every night frankly no flied was ever reviewed and the only reason that as i understand those figures you gave us judge casper says in her decision that that amounts to the fact that there was some private quiet plying from this that's correct but to put in a percentage on how much a public form here is yours there's not part of any constitutional history were pressured from the supreme court or neither was adding block the number of times applications have been have been when i mean the question the questions here are whether or not this is a public forum and and if it is not whether or not the display of  me it would help me to just focus a little more in the sense i mean that there is a a prior decision of those who work which carefully went through the three  factors that control that government speech question i understand that there has been additional discovery since the decision was issued i'm trying to understand which factors of those three are open for reconsideration by this carol in light of the additional discovery that it's been individuals and groups that they can ask for to be displayed during their rounds and so that has two hundred and eighty four applications that have been occur there used in this particular case is different than any other fly poll that we might encounter if this were a flight of call that the city just normally doesn't open it up we wouldn't be here but the city intentionally opened it and in the twenty nin different aspects of its christian message were over the bunker the old flag in fact the mr rooney said that the only reason he denied this flag was not because of the face of the flag he says he would have treated it just like the private organization the bunker hill flag it has a virtue that general crosses a different color scheme and it has a tree that's only different but has a virtually identical cross he says he would have treated it like a bunker hill flag not because of what it looked like is why he denied it because they were christian that's the indisputable evidence on contradicted evidence was listed in the application and so there from loony among the goons that that the policy albeit it's not a written policy was to distinguish between secular and non secular language is that testimony contradicted by any other after the fact but even having said that that would still be impermissible when they open up the form of the like open up any form and say we are allowing the viewpoint on history and our whole over government speech government cannot as pov of government speech and door speech non religious speech without with the same time endorsing religious speech than what we heard in the course of your period of purity four curses fifteen but on the observer this court found that under those facts are can over twelve years that the observer who clue that it undisputed evidence as we go in a door so is because that's not our speech that's a private person or group asking for that flag so the reason what server was not comes to this is the government endorsement and finally uncontrolled well like polls are usually under the control just like any other section of property in a public building or a library when the government intentionally by practices they've done here and by express policy that isn't all comers policy for anyone seeking to have access to the flagpole within the subject matter that they've allowed history and the community and that's what this was in that subject matter to do to celebrate the constitution and the street of the commonwealth in boston particularly the religious leaders that were part of that historic past so it fits all of those and consequently it's not public speech it's private speech in a designated public forum and i see that i'm reading into my rebuttal so i want to save the rest of my time  and proceed good afternoon this honorable court the st issue that i want to address really because it is the it is really the biggest change or the event that came out of discovery since we were last year of the injunction is the is the argument of the appellant that the raising of two hundred and eighty four flights out of the nile in some way means that the city has a designated its flagpole as a public forum just a place in contacts in terms of those two hundred and eighty four  city would have had a flag other the in the city flag raised in place of the raised in as a substitute flag it just looking at the target for his flag has been raised over ten times the bunker hill associat facts but there were none i mean the key point though is there were no flags identified that primary purpose would have been to advocate for any sort of religious organization or religious movement i feel like that sort of limited access supported by the discretion allowed by the city in and of itself does not create a public forum under the case laurie cornelius that i cited in the brief such limited access does not a designated public forum and where the city has not designated a public forum in what is absolutely a nontraditional form which is the city's own flag pole that flies in front of the city i do believe that that analysis of the three factors of whether or not the city was engaging in government speech is the proper analysis in this case and given the fact that the city has taken a position that is not designated this is a public forum  also i will address the fact that city applications when speaking of the city hall flagpoles speak of the location at the flagpole they do not speak of the flag poles and a flag raising ceremony as a as an event that  a public forum the public forum is the location at the flagpoles which is a part of city hall closet so your closet is a large area that covers multiple acres which can accommodate many free speech activities at the same time they that the establishment clause requires the city without the preference but i do believe that the sitting in gauging government speech does have discretion over the messages that it sends up and that looking at the nd factor of government speech and you know whether or not or  the speech may be practically imputed to that the city is well within its well within its well within reason to determine that it does not want to resist the it doesn't want to risk  allow religious events to occur and to allow religious installations to be installed on the public forums that have been identified on the city's application and that's undisputed in the record in this case so that the city isn't showing a preference for non religion over religion it does allow religious displays and religious speech to occur in the public forum which is that i think which it has identified it just it just doesn't agree with the argument that it is designated its  flagpole as a public forum for which any member of the public and scaring up any flag with any message that it can broadcast to the entire city from eighty three feet above the ground in front of city hall coun opponent has made to add add the argument that one of the tests for government speech is how a reasonable observer would lead king at that a flag on the flagpole that he then said with reference to the rooney after day that you know the city never actually looked at any flag and so here they didn't really look at the flag the flag is really very similar to the bunker hill association flag and mr rooney said well gosh i think those two are really close it's only the fact that we labeled it a christian flag ok so let's go back to the reasonable observer taking a look at a flag flying eighty three feet above the ground and somebody with better eyesight than i  that different non religious flags that somebody looking at it would clearly identify it as a religious flag regardless message that is sent out by more so maybe than the actual d image of the flag or what is projected on the flag and what is put on the application when interviewed by the commissioner before he approves or disapproves of the flag under your policy you don't look at the flag you cast a lot at white be application set it is that correct under current policy judge i would say no that's not correct the record there is a current flag raising policy that the city has adopted subsequent to even the eleven area injunction earlier in this case where there are certain size requirements for the flag and of the actual image of the flag would reviewed under the new policy we're going back to mr rooney it is in his testimony that he did not necessarily review the images of the flags that went up so in that case your honor it is certainly possible happen is it would be more of an administrative failure by the city to enforce its policy and act so i do i take up an ad at that even if the city were to make a mistake as to allowing  fly that still doesn't mean that it's not government speech sort of shame on the city but it doesn't establish it's not government speech and certainly doesn't a public forum correct your honor and your honor also we know that in the twelve years that we look back on that there have been no instances of somebody sort of slipping a flag again that would have been primarily religious or similar to the all or nothing decision as to what it does with these privately legist lag and where one of the factors in government speech is the city's discretion over the flag that why when we start getting into religious life we start chipping  the city may have over the flag that raises over its libel because of that establishment clause mandate in the government speech law on on the issue of discretion your opponent make something out of the fact that  brain doesn't reply to his argument that it had merit the fact that this is discretionary a given at say so in their view a constraint on speech makes said and valid and it's true your brief didn't expressly address that argument is that your position you employ lists it really addressed it and the rest government is the government speech it does not implicate the st amendment rights of others so it would not implicate that prior restraint argument you're on k i think i may have been erupted jag has and video and we'll have a three minutes of rebuttal from attorneys staver actually being done to recognize that community and or history as it was in this particular case this was not a christian the vast this was a constitution celebration talking about the rule of law and some of the founders like john adams and so forth that are from the commonwealth of massachusetts to recognize that christian heritage therefore it was consistent with the policy with regards to the foreign countries like no foreign country or country has requested it easier than private individuals and in fact that this was government speech then the city would be violating state law which prohibits the flying of or horn flags on city or government property that's why they have distanced themselves in the grief and in the testimony that's on disputed that these flags do not represent the speech of the government that's why they didn't review any of the two hundred and eighty four dollars wives and the only reason they've reviewed this is not because of the flag because the picture of the flag was going to but because of the word christian there for if the only way you would know that this was and only really were it know that it's their christian