defenders some are represented by private counsel like me appointed under the c j a so everybody here has been represented and we work together on the three this law is unconstitutional in multiple respects they're set out in our brief and it was error to dismiss this complaint at the pleading stage under rule twelve the six we've spent a good deal of time in our brief addressing the first amendment issues and i want to talk about that someday i would like to first though address the due process questions of this law presents particularly in view of the recent development in the eleventh circuit the sixty five decision there that we supplemented recently that's the jones case a kid and i want to do that first a key question in this case it seems to us is do the constitutional guarantees of due process and meaningful access to the courts permit the government to enact a law that to unpopular litigants the very information necessary to determine whether or not the government itself is impermissibly infringing on those litigants fundamental rights that's the question that the due process provision here presents and the answer to that is no this law denies these due process protections i don't think there's any question that the eighth amendment protects these inmates against an inhumane protected by due process there's also a right to equal protection that protected by due process and that right equal protection means the government has got to follow its own rules that's what the court here in the rain said when it affirmed judge frost out and if we focus well there's with we focus on the the due process issue it helps us to litigate claims that have been successful in the past the thing that's so disturbing about this law is that it denies the ability to meaningful litigate claims that have been successful that have been able to advance the argument in advance the the the public's knowledge of lethal injection as a method of execution that's been what these these litigants have been able to do and for a law to choose to burden that type of advocacy in the way this law has done is something that's unconscionable under the under the anymore what's that got to do with the little people well you know that's the first amendment argument let me let me focus on the on the on the due process argument first though because the reason we need to know who these people are is because it's at the core of whether our clients equal protection rights are being followed and whether their rights to avoid an inhumane execution are being followed the need for the information is more clear now than ever when you're using lightly regulated or unregulated drug makers so just with respect to the due process issue there is an interest here that needs to be protected and the interest that needs to be protected is the interest against an inhumane execution and so why do you need the information why is it important to know who the compound are is well it's important because compound is a complicated process and in order to fully litigate that process you need to know who they are what kind of experience they have whether they've done this before what kind of laboratory they use  quit oh your honor we done much more than that are our due process claim is is focused only on the inmates interests there's a there's a first amendment interest which is also alleged but at this point i'm focusing on the due process actress which say if you're going to be depriving somebody of an interest that is protected by due process you've got to afford some level of protection to do are those th the proposition that when an interest that is protected by due process is going to be impacted there must be procedures in place that protect that interest and here the interest is in an inhumane execution there it was in whether you get welfare benefits i mean this interest we're talking about here is a much higher level the people we've had a number of cases that have spoken to this circularity of reasoning and the problem with with understanding how you can deny access or  isn't that what we have it in our own case the law the decision below even recognizes that there's the issue so why do you think gold bar changes where the last stood i think would goldberg does that sets the framework and goldberg says this is how you're supposed to analyze these types of issues goldberg and matthews and other cases and the so levin circuit jones case that we we recently supplemented that was decided in february of two thousand and sixteen and that case said you need five dissenters in that case sixty five five the center said with respect to this interest this interest in avoiding an inhumane death but did the majority  majority took the same position that the lower court here took with respect to yes yes with the majority the majority did but here's what's significant and what i think is remarkable about the jones case is the just is the judge judge frost in our case here relied on whelan's in analyzing the the due process issue and any quoted extensively from the concurrence and whelan's with which was written by a judge named judge wilson and judge wilson's position was that this does present some some challenges and some questions in it and i'm not comfortable with holding that the due process isn't violated here but he never the less concurred in whelan's but when jones came up to the eleventh circuit a year and a half later that same judge switched and he said wait a minute we shouldn't be relying on whelan's wellens was wrongly decided it wasn't properly reasoned we didn't analyze the due process interest properly we didn't follow goldberg and ridge and would judge wilson did has he changed his his view he said we did this wrong and four other judges join you know that's a significant development in the law in this area we're not how would you apply we're here on on a motion to dismiss we are not here on having to put proof forward right now the question before us is whether you had stated allegations that are sufficient to state decline that's right how will goldberg help you show that your complaint is sufficient just i decline because your honor when we stated in our complaint that there's an interest at stake that's protected by the due process clause and that this in act meant in its compelled secrecy provision and in its court sealing provisions are denying that interest there in sufficiently protecting that interest from deprivation at the hands of the state when they seek to execute these people and when they seek to litigate their claims under the dooper under equal protection and under the eighth amendment it's the it's the equal protection in trust that has being deprived it's the it's the interest in avoiding inhumane execution that has been deprived this court in lorain recognized how important equal protection interest is they recognize that and they said they said they they state that execution what was was was the way a preliminary injunction was granted because mr loraine was able to demonstrate that the state wasn't following its own protocol and that that was an equal protection violation that equal protection interest is an interest the due process pro tax and the problem with h b six sixty three is that it if this rate takes away any due process that is necessary to protect that interest it disables that interest from receiving the due process put protection that it's entitle to receive that this court itself this court along the lines of what was said here is that that which is necessary to prove your kline that which must be withheld yet the necessary is also the withheld the you know you must give us that which you cannot have to give i mean that judge the lower court here recognized exactly what is going on yet you know what the lower court did it concluded that there was an interest the due process pretext but that's because it made an error of law it focused on the first amendment it said because there is no first amendment right to this information then there is no interest the due process protects the rest of us your argument is that the ark has to do with the ability to challenge well with the information that is held by individuals to challenge the the propriety under our standards of execution but also to challenge the than unconstitutional nature of an execution when it's botched is that is that the other or again it's the interest the judge the lower court here missed is that there is an eighth amendment interest that due process protects which is precisely what you're referring to the ability to be able to challenge in the litigation that's going on in the district court to challenge these particular inmates claim that to present these particular inmates claims that they have an interest in not being executed in  inhumane way but also the other interest is the interest in equal protection that that the government be required to follow its protocol and yet here to the core requirements those two interests our interests the due process protects we've alleged remand can sort through but we certainly stated the claim that our mark lyons due process interests are denied by this law because it disables them from protecting the interests the due process protects and that also is a is an issue concerning the meaningful access to the courts which is the the other related issue the due process meaningful access to the courts that go hand in hand and they all center on is there an interest that is protected by due process in the answer to that question is yes there is it's the interest in avoiding an inhumane execution no one can quarrel with that that that is an interest and also have allegations that would suggest that there that this is an issue for the individuals who desire to come forward from the public people who have participated in the past and desire to speak to the issue in the public domain that's a that's a related issue i mean there's two issue and i want to move into the first amendment because that's that's that's a related issue i mean this this statute is unconstitutional for multiple reasons the the due process is part of it the other part of it is is what the whole law is about we believe is an effort by the government to disable and burden speech that has been affective and they want to disable that burden because the communicative effect of that speech is that is has had an impact the government doesn't like  and the problem below your complaint about that the decision below is that it applied the incorrect access past well the decision below with respect to the first amendment issue the court below are moving back toward the access and yeah we're talking i'm talking about first amendment with the first amendment issue here is the court below defend the defended the law by concluding that it's beyond the reach of the first amendment that when you deny access to government information the first amendment isn't even concerned and that's been the attorney general's position as well that this doesn't even raise a first amendment issue and that in fact is why judge frost didn't find there to be an interest the due process protests so that's wrong i mean the first amendment issue here is quite apparent and in the in the issue is tell me what it is a substance of the lot matters not the form the fact that you put it in the form of a denial of government information doesn't insulated your honor from first amendment scrutiny of a law that is motivated by viewpoint bias and is designed to burden the viewpoint the government doesn't like is always going to impact the first amendment it burdens speech you're saying and that protection would give you the right to find out everything that the government doesn't want you to find out about i'm sorry i missed that you're saying that the first amendment covers all governmental things grand jury proceedings ed and the confidential information and transmissions and all this well what we're saying is that the government cannot enact the law whose purpose in effect is to burden speech with which it disagrees when viewpoint bias is at the root of a law the law immediately raises first amendment concerns because here's why burdens on speech can be direct and they can be indirect and what the government did here is they said we know that this public act this public the freedom of this this public record statute has permitted speakers to obtain information and speak out against the death penalty we don't like that speech we don't like the communicative impact it has had where we don't and so we're going to stop it does it your client can't speak out against the death well what it does your honor is a does is it takes away the billet of our clients but also the in everybody in this room who wants to direct advocacy to people who are choosing to participate in executions government contractors who choose to participate in executions everybody in this room is no longer able to direct advocacy to those oh let's take an example  are penal work they're just saying that all that now is public all those exceptions are out we're not saying that because you know you you might want to persuade a cop not to shoot people that's i don't know that's not the point the point here your honor is that the government has always provided this information the limiting principle is us the government has always provided this information and now they're taking it away and why are they taking  test won't apply in the experience and logic test which is where the supreme court has moved and the sixth circuit has moved does is that not help me understand why that's not the argument that l core of what you want to that is a second argument the first argument which i think you get to always before you even get to that is has the government taken have they in acted in a breach meant have they done what the first amendment prohibits which is have the knack to the law which a bridge of speech in those abridgments can come in different forms one form we argue is to deny take away information that had previously been a bit available for viewpoint biased purposes if you do that at the front and you don't even have to get to the back end and say ok does it impact the government proceeding because we win if you do even if you go to the back end because it does impact the government proceeding the government proceeding here is a lethal injection execution and all the documents associated with it detroit free press in other cases would say we should prevail there but you don't even have to go there when you have a viewpoint biased nachman at the front at a government can't pass laws whose purpose in effect is birth the speech because we've viewpoint bias even if they do it in a way that is in the form of a law that denies access to information now that's surround but but they're still the law you're right and they haven't said here's the point on whelan's and saying they don't address this first amendment issue nobody and whelan's are saying argued that the an act minute issue was a viewpoint biased an accident who purpose and a fact was to burden the message the government didn't like that's what this case is governments can't do that they can't you know take a look at the book the landscape and say you know we don't like the fact that advocates of me good in effect of use of this information so you know we're going to do we're going to take it away and we're not going to let them use it anymore why because we don't like their message that's unconstitutional or here's what it is it raises a first amendment issue it's wrong for the government to say that doesn't implicate the first amendment of course it does of course and implicates the first amendment for the same reason how you know so ralph implicated the first among these these are first amendment issues at their very core and if the government is free to sort of decide what issues they don't want to hear people speak about anymore and so they take away subsidies that they had previously provided because of a viewpoint they don't li the names of the executioners in cases like this in the past and i'm sorry have they they've made a state provide the names of executioners in the past this kind of information that we're talking about concerning the drugs in the drug makers as always been available it's always been available and you know why and that's why the advocacy has been able to be effective but not when so what's the response take the information away question is has the state always provided it  the the person who actually pushes the drugs no but the government contractors who choose for whatever reasons to contract with the state to supply supplies for government programs there's no reason in the world they should be secret they've never been secret if you want to find out what the government is contracting with in the state of ohio you can go on the internet to their internet checkbook and you can look it up you can find out who they are you can find out what they've been paid and you can find their contract there's no reason they're allowed to be kept secret because the government doesn't like the fact that advocates have been affective in speaking out using that information that is unconscionable under the first moment for the legislature to think that's ok or for the courts to say it doesn't even have to concern us because it's not a first amendment issue it is a first amendment issue it's a first amendment issue at its core and it may be an indirect burden on speech it may be done indirectly but it's never the last birdman speech and when the burden is because of a viewpoint biased reason to suppress or burden or make more difficult a message the government doesn't like we all have to be concerned about that we think an analogy that's helpful is could the government during the vietnam war era have decided to shield the names of weapons makers because student advocates were effective in protesting dow chemicals involvement with naipaul though could they have done that killed that secret it may not have been balco but but to a lot of providers but to take away information that has always been there because you see advocates being affective in speaking out against that idea you're addressing there is not the name of the executioners the information years address there is what was previously available through  financial disclosures this state how much they paid right who they paid for the drugs wrecked exactly the type of no that is that's the type of information at you then want to turn into the public arena for purposes of addressing the evolving right under the item in wrecked to for the purposes and you've used all your time so we will you will have your eight minutes afterwards thank you thank you good afternoon may it please the court my name is to any car while i'm here on behalf of the the state to finance them pallies in this case this case does not involve a constitutional violation in a district court correctly dismissed it pursuant to twelve when when our law has moved pretty significantly everywhere to the experience and logic test of justice brennan with regard to the experience and logic test i would put the notice court's decision in the shark versus the metroparks case that this court clearly stated that the experience and logic test is unique to the judicial context it's in footnote to and that in other access cases in it for example in the metroparks case it is access to parks and hanging video equipment there that the experience and logic test is not a flexible but that framework does not apply in those cases and that it only applies basically to just show proceedings or as in detroit i think it's very clear isn't it that records themselves should be accessible under the experience and logic test that would apply in this situation help me understand how  think it's fair finance and detroit free press and you know even looking back to richmond newspapers and press enterprises it seems to me that all of those grapple with right of access not just to the proceeding itself but to the records that are involved those proceedings particularly the supreme court the supreme court has only apply that case that standard to judicial proceedings over the third third circuit noted that in the capitol care case that these the experience and logic test of the supreme court has not applied it outside of judicial proceedings and that if you would and is the case that you would look towards for access to information cases now capital care in an abundance of caution went ahead and applied and went through the test and said even if we apply this you still don't get that information but it was it's but we're not we're talking now that experience and logic applies here to what is without question the and proceeding in a judicial proceeding it's the execution so it's a portion of what the judicial determination has or the affection of what the judicial determination has been so applying for me and tell me why experience and logic would not result in an adequately studied klein you know we do disagree with that the experience like test would apply over if the court does apply that they can still uphold the district court's decision and i would point the court to the district court's decision in the wo was in the eleventh applied it didn't they did not they mentioned it but they did not go through the analysis and while and they said there is no equivalent it was they said they would have applied that tested they not say but that there were not sufficient allegations in the complaint to satisfy that need i don't believe they actually officially said we're adopting the experience and logic test and the circumstances outside of the ninth ninth circuit and i found no case that exist that pacifically said we're applying this case that this case always applies in these circumstances and lot of the cases will say we don't know the supreme court hasn't applied it in this case an abundance of caution we're going to assume it applies and is the most political case for looking at access of information access of documents because the first amendment is not a freedom of information act in applying the experience in logic tests to documents would freedom of information act that terrorists say is did historically open to the public and the press this information and to public access play a significant positive role in the functioning of the process those are process questions and that's why exact that's exactly why it doesn't apply because there's a process of proceeding this is documents this is information it's not talking about proceeding it's talking about whether you get to know the identity of someone that's involved with the state they are but it's both would sink whelan's and our cases that talk about the application of the experience and logic test all indicate that it is applicable to the proceedings and all of the underlying records and documents prior finances that outlined in clear so what we're what are what we are about is trying to determine whether these documents have that sufficient that relationship back allegation that you could stay declining in requesting them then we would say no this is not part of the judicial proceeding this is an executive document an executive branch function that's not a proceeding we and if you look at shark metroparks which came after detroit free press they clearly say that the experience and logic test the richmond newspaper in his progeny applies to judicial proceedings that those are a unique circumstance we're not talking about that unique circumstance or judicial proceedings here we're talking about documents we're talking about information that's exactly what hooch and was wanting there was going after they were going after information they wanted to go into the jails they wanted to interview and of inmates to find out about the jail conditions  was that they wanted more than the public had the right to what this complaint says is we want the public to have the right to this information if you look at  capital media again from the third circuit they clearly say that while houghton's does discuss a press right that the underlying premise was suppressed the underlying premise of the supporting argument whether the press access is necessary to vindicate the public's right to informed self camera and that's the distinction is what they want it was over and above what the public should have they wanted to be able to go into the jails and take photographs they want to have complete access what is playing out here is that this is public information it always has been and it is a part of the process that is necessary and under that then experience and logic there suggesting that the application of that means that it is the public that needs to know the name of people who previously were involved in execution and now want to speak to that issue that i have the very sort of information that has been declared confidential by this act so the act itself is saying known information to people who have participated in executions in the past who would now speak to the at is confidential on pain of pretty raw innocent damages so why isn't why isn't it a public interest that we are talking about the provision of this information in the marketplace of ideas to determine whether our society under the id the man much believes that this that capital punishment is appropriate i think the rabia not entirely sure if i'm going to answer your question but if you look at the statute it doesn't say that information that's already out in the public is now confidential it it helped me understand how how you can cite it it's a as if you are an individual who has in your possession this information and if you tell it to the public then you can be sued for damages exemplary to i'm not convinced of it when i read that in the person who provides that for you and the information that they're referring to is under b and c b one and  say understand that that's a limitation but the secrecy provision applies to anybody who shares that information you know that the confidentiality provision applies to government held information so if it's not held by the government then that provision does not make it confidential so it is in the government i work for the government i know who is providing the lethal injection drugs i retire i want to speak to that isn't that person subject to a suit if they speak to that person would be honoring the supreme court in the florida star k said that the state is the federal government the state it is permissible for them to put regulations on their employees and then even have a damage for their employees there that the state statutes in effect already even before this statute make it a criminal violation to disclose confidential information it's in the ethics provisions and one hundred two zero three three about the military and cia and all those organizations right exactly your honor if you retire or quit governing employment it does not mean that you can go to vote confidential information you are still under protect the provisions that govern you while you are an employee and that is perfectly permissible you worked for the drug company and you knew the compound was compounded so to speak and then and you dealt with the government to say you had some sales relationship with them and then you quit is that person are subject to see it would be the state's position that that person would not be under the civil penalty provision they very well may have a confidentiality contract with their employer that would govern that but this statute would not cover an employee of the compound or no it doesn't regulate speech of a compound or how it doesn't know it doesn't regulate speech at all your honor that's the point of why this isn't a first amendment violation it regulates what information the government is going to give out prison the state's position below and on appeal is that the plaintiffs do not have standing with regard to the licensing provisions and with regard to the civil penalty provisions those two  s with regard to the confidentiality provision we did not raise standing because if they seek that information we will deny it to them and so we didn't raise standing because if they asked for a public records request  show that they've been injured and and they have to show that the relief they see which is get rid of the statue will take care of their grievance of their damages what i mean one of my missing you don't even mention that i think when we were looking at it because they raised a first amendment argument that a lot of times first amendment claims can go broader than just the actual plaintiffs and that's why we did didn't raise that because we're taking the facts the complaint and the facts in a complaint as true at this stage of the litigation were not at summary judgment where we may raise if the court to disagree and send it back we could raise for argument their case i am sorry we do not believe they have standing there with regard to the civil penalty provision or the licensing provisions and we do not believe that they do apply to either of them with regard to if the court does eventually want to apply the experience logic has we do believe you could up hold it even after that and as i mentioned through the opinion in ryan would be ryan case out of the georgia supreme court and they both go through that test in a death penalty case and note the how it's executions of historically the identity of the executioner has not been known one of the cases even mention that they've been itself and i would soon that you would have to admit that the eighth amendment law requires the inmates to show the harm they have to show that what is wrong with the execution protocol and what other alternatives there are correct correct in that and isn't that what it is she who here whether the state may say and know what your burden is under the eighth amendment and i'm going to make sure that you cannot get the information in order to carry that burden and that's a pretty simple issue the only information that the state is not disclosing is the identities we have a twenty page protocol that gives them information beyond the identities and so if it is a compound a drug in which was is the concern that was raised by them on an argument they will have the test results that are come out of that so if they test for identity so they'll know whether the task the compound a drug passed on is actually what it says it is the state of the drugs that are used in the combat yes your honor the information is the protocol what drugs will be used what doses will be used and if the test is done on the compound of drugs that will be provided to the enemy it's the only thing not provided is the identity of the suppliers and anyone involved in in that after they obviously have received the drugs and it has not happened yet so i and i am not familiar with the exact process of how when it will occur so then what you're saying is that the state would make available to the public and to the and it's obviously is part of the public the exact drugs that were compound in that were used for that execution it will be made available to the n h s yana so they would have the information needed to challenge whether this drug is what it says it is whether it is the correct dosage the only thing they do not will not have is the identities and are the inmates to whom that is provided are  able to access that information for them and their execution because it would appear that the problem is it doesn't help you to have an item in klein if you are executed the next day we know that from the case law so someone executed and you get the information on the drugs that are they are and after each execution the inmates are then provided what happened in the previous execution i do not know exactly how that processes work but the statute doesn't change that process at all so that information if whether is available when it was available before the statute is exactly the same as when it will be available after the statute is passed that's this statute does not affect that at all the way it was made available before was that it was in the state's financial reporting as to who it employed and pay for the drugs is that the but this is a different source of information that you're speaking to the contract with or our own employees names involved that is what changed that's all the statute talks to it does not go into whether or the execution protocol and what information we will not give you in that twenty page plus till i believe so your honor and that this doesn't change like i said this doesn't change the protocol it doesn't change the information that is that is in that protocol and i was into that the due process argument that pla making quick question i'm sorry i'm just trying to understand the logistics because it has to be provided at a time that makes a dispute or your own process your own case viable if if in this case i believe there is a january execution for one of the plaintiffs and a february execution so what you're telling us is that after the january execution you would tell the february person who it had been in and the execution drug cocktail is that what you're citing i don't believe that's what i'm saying i'm saying i don't actually know when that information is going to be provided i would believe it be before the first execution that that test information because they test the drug before they're they get that the way the protocol is going is worked out and we don't have a compound a drug we haven't used this protocol before so that's why it's not i don't have a concrete answer for you  but the state would receive the compound and then they're going to test it to make per pursuant to the protocol to make sure it is what it says it is and it is the correct dosage and then that information will be available to the plaintiff that is scheduled for execution in january it and to get i think an injunction to protect again so that there would not be an execution so there was a time to challenge and the respond it's was that it's not you may get that you may request it you m litigate that but we're not going to stay your execution in the interim which would mean that the guy you're getting ready to execute has no practical way of using that to challenge his own execution or likely with the person that's a month later i mean what you agree with  l two points one other states are not as open with their execution protocol as ohio has been when i was reading the case law on this but to this statute that we're talking about today does not change that so the remedy that you're talking about whether they would get those test results in time for them to know whether it is the drug that is as it is and whether it's the correct dosage getting rid of the statute that were in question will not change that that is not the issue fro a compound or early enough to challenge correct i don't know whether it would be early have to challenge and i don't think it's before this court whether the they would have that information early at the test result information early enough to challenge it it's not our position that they would not we believe the stately that they would have enough time to get that information in enough time to challenge it so but that's not what the statute is governing anyways and with regard to the due process argument supreme court is very clear in the u s we casey that you do not have a due process right to discover grievances or litigate effectively and that's exactly what they're wanting they said they want to be able to litigat claims and that's why the supreme court says the due process clause does not cover and if you look at lorain loraine is that they must provide follow the protocol they will have the protocol they will know whether we're following the protocol and with regard to being deprived of an interest you look at both the un band decisions in the eighth and the eleventh circuit and they said there is no due process right to know the identities of the people involved in the act and if you look at the fifth circuit there is actually no liberty interest know the protocol at all and these are death penalty cases they do not have a due process liberty interest in this information and also the six circuits case and cooey strickland that they didn't have a liberty interest in the death penalty statute itself in for them are if you look at goldberg that was cited and there their brief kohlberg was talking about if evidence is going to be used to prove the government's case that evidence must be given over we're not talking about evidence that we're hiding that we're going to use to prove a case against these plaintiffs which you're talking about were to prove they're right and that's exactly what the supreme court says is not part of the due process clause that they that under louis we it's been applied in other cases your honor not just in right to counsel a number of circuits have cited that we were speak a see case in affirmatively and other circumstances that it but the right to due process is  that hinderances to actually getting into the court like if you don't have access to a law library but it's not about sex the question here i think the language in lewis that caught my attention was that inmates are entitled to a reasonably adequate opportunity to present klein divide and a fundamental constitutional right to the court the complaint says has i do not have the ability an adequate opportunity to present my validation because you are withholding the information that is necessary to the proof of that klein well with regard to stating a legal conclusion a complaint that doesn't have to be taken as true under twelve the sex but if you go further with the claims that are made here their client being i don't have an opportunity to present my eighth amendment challenge because you are withholding information that which is necessary is that which is withheld if you look at both the owens decision and all of the decisions actually in this area besides the ninth circuit's it was overturned they would say that there is enough information that if you look at lots of there's the two test  one that you need the alternative remedy which this knowing the identities of the compound hers would not affect whether there's alternative identity earl turn of methadone sort of matter not just a different compound or it's a completely different method under bays and if you look at the significant risk of pain under the protocol they will have the information whether it is the right drug and whether the dosage that information will be available to plaintiff has questioned the viability of the drug  because the complaint say there are five bought executions three of which occurred in ohio in two thousand and four with regard to those that would be it under a different protocol your honor those of use a different set of drugs  different drug protocol and so whether though that information is accurate it's a very you've got five botched execution she's got three in ohio in the previous year and you don't know what the drug is you don't have the information to challenge your coming exclusion they will have that information or they will not have the identities the statute just protects the identities it's not about the execution protocol which is available which provides that the test results will be available it is and under lorraine decision we have to follow our protocol so our protocol says we do x y and z underlaying we have to do x y and z and we will do x y and z and that includes testing these drugs if it's a compound a drug and so we will test the state will test the drug and information will be available to plaintiffs what under the statute the limited statute is that is all that's not available we're not saying we're not going to give you what you know what drugs were using we're not saying we're not going to let you know whether it was a cloudy drug as an georgia's case or whether it's a clear drug that information is available and will be available to plaintiffs the statute does not change that and so they if that line from lewis is still a clickable and they will have the right information they just won't have the identity it won't have the compound or two to provide to attempt to provide information to the public regarding that that particular compound or as they as was done with big pharma and ultimately resulted in big pharma refusing to sell the drugs in his and that the complaint that we have a right to get put before the public the information about who is involved in  not the execution hours but the drug salespersons because americans should have the opportunity to decide under their own determination of what the evolving standards of decency are whether this an appropriate activity on the part of the government my my my how do you mean and place your honor the first amendment does not there is no case cited by plaintiffs that would say that we have to provide them this information so they can then go and speak to someone else this is not a content based restriction this is not a viewpoint based restriction this is not even a restriction on speech your honor this is a restriction on government held information which under supreme court precedent  shien's and particularly united reporting we are allowed to keep confidential the first amendment is not a freedom of information act this is a statute that has changed the pub ohio's public records law which is the equivalent of ohio's freedom of information act so no there is not that right thank you please the court may first begin with the first amendment notion our position has never been and today still isn't isn't that the first amendment is a freedom of information act but what the government can't do is decide that they're going to take information that has previously been a been available and taken away by enacting a law whose purpose in effect is to abridge speech with which they disagree because the communicative impact of that speech has been undesirable with respect to their policy that's our claim that is that's not how mentions the how tos doesn't deal with that question sarette deals with that question united reporting deals with that question i mean those are questions about a viewpoint bias that go to the core of what the first amendment becomes most concerned about that's what this case is about with respect to the first amendment issue let me talk though with respect to the issue concerning the information is system a journey the attorney general says the government is only going to be withholding the identification information that's simply not the way the statute is written this statute is agree just sleep broad with respect to what information we will no longer get information that identifies or reasonably leads to the identification of just about anyone who has anything to do with executions including drug makers is off limits that means virtually all the information in discovery that we routinely get before through discovery in these litigation in this litigation we're not going to get any more we're going to get salaries correct you never got the nine's of the individual prison guards that were involved in the execution we wouldn't here's that's true we wouldn't get the names you know what we would get we'd be able to depose them we know their experience we'd be able to sit down across from them look him in the eye and take their depositions we would know their name but we'd be able to discover who discover is that we would conduct discovery under the federal rules a suburb procedure like in any other litigation with these participants you know they wouldn't be secret from us we would know their improper purpose not access to correctional employees that's asking you're asking for all purpose no we're not we're not we're not asking for what we need to know what we're arguing here in this lawsuit here on today is that this in ackerman is unconstitutional for multiple reasons or to state in another way we stated a claim for relief that should a survive the motion to dismiss that's what we're here about that an act meant for many reasons including its viewpoint bias violates the first amendment but let me address this question about the information because the scope of the information we're no longer getting is really kind of that the the core of the due process issue because we're not going to be able to get any longer the kind of information that we were able to put together to present the record for example the rain case where they were able to get relief because the issue in the rain was the equal protection issue of are you complying with your protocol well if they tracers stop posting these  available is now no longer available because the government doesn't like the message advocates have been making have been able to communicate with information that's a first amendment issue but with respect to the information being withheld i mean the equal protection claim that was developed in lorain was dependent upon being able to learn information about the protocol and how it's being done in the compliance with it and knowing who the people are in their qualifications and are they doing what they're supposed to be doing and and making sure that the government is doing what it says it's going to do and in order to get more yes subsection yeah the civil action is there a is there a person it's our view that that statute is applies that on a big c applies to any person who releases the information i can understand your concern with your clients that's all i'm concerned for people if there were if there was criminal responsibility for your client revealing any information that would be that would be one thing but here it's pretty remote to think that anybody is going to burdened here by this law it's me it's the lawyers who work on behalf of death row inmates it's their family members it's their advocates it's the people who love them and care about them i mean those people aren't able to do that and that this chilling effect that the statue creates  something that the constitution ought to be concerned about and so you know but but again the due process impact of the law just to try to to focus on that because i think that's an important part of this as you know what are we not going to get any longer that we were able to get before and it's really just an entire menu of of discovery that is going to be shut down the ability to demonstrate equal protection violations that we were able to successfully do in the rain is directly impaired here and what kind of law is it when you when you see when the legislature looks and sees in the in the and they recognize that litigants have been effective in litigation and so what do they do the day with draw the subsidy that enables speech because the message that the litigants and other advocates are delivering is one they don't like that's the last quest case the united states supreme court's decision involving ask was when the legal services corporation wanted to be able to limit the ability of government lawyers to argue on behalf of of you know persons who received welfare benefits that the legal the the congress wanted to the regulation to include a bar that you couldn't advocate for the unconstitutionality of the law even if you could argue for welfare benefits in the supreme court said no you can't do that you can't restrict the ability to scrutinize your own conduct that's what's going on here you've got the legislature see and that this litigation has been affective seeing the impact it's had on this process the extent to which it's had this positive effect on the process and saying we're not going to let you advocate in that for quite the way you've been able to do in the past and so we're going to cut it down we're going to deny you the information you need to be the effect of advocates you've been in the past with drugs with respect to equal protection and in an eighth amendment concerns in this context when compound a drug compound an execution drugs is a is a whole wild west that is the whole issue you gotta know that information you've got to know their competence you've got to know their qualifications you've got to be able to probe that remember the inmates here have been right in many respects when they've said hydromorphone is no good i remember the hearing putting on that evidence hydromorphone is no good it's done it's dangerous it's going to lead to spectacle executions mcgovern said the hoary but it's fine it's fine well what happened hydromorphone is no good we saw that with wood we saw that with other executions the inmates have been right they've been right in these respects and with respect to compound and i think the concern here is the government's afraid they're right again and if you don't give them the information to be able to demonstrate that their claims have merit then of course you're not going to be able to demonstrate your claims have merit but that's not the way the system works that violates