accounts from people who have previously been dependent and the enforcement actions and it might just by people who would be willing to speak it be the bands and have their stories beacher in the publications but for the fact that all of them have entered into  be individuals your honor but on the amended complaint there is no question that if these individuals were not subject the northerners if they could speak without fear of punishment they would see and i think the close to best case to look at for that is this court's decision in the would hold freedom a earlier this year which made clear that the only thing that's necessary or traceability and redress ability is a substantial likelihood that the plaintiff will be able to do the things they some press statement i believe craigslist it made suggesting that if they could they would go back to hosting ads like this and that was enough here the amended plaintiff alleges most of the plaintiffs and woodhall couldn't get his a st right yes or no but here what we have the restraint in front of us and it's crystal clear that it finds those settling defendant but they will be punished by the the the if they participate in a panel discussion and so kato is unable to engage in the most effective speech that it has found and it's consistent advocacy in this area and that's an stand the proposition that an unregulated party can raise an objection like this provided they're actually in your one hall is part of a long line of this case press is courts pressing and holding exactly that whether it's cheap honest or aviation foundation or abigail alliance for better access to developmental drugs where they're the only evidence that rd party would actually get planted what they want to do they prevailed was what this court called the naked capitalistic interests o are talking busy about would that mean that they could not be held to the consent decree either not necessarily your honor and i think this question really goes to whether we'd be able to obtain a short release or as implied release and i'm certainly prepared says it doesn't really matter for a st amendment purposes whether we think of the st amendment speaker as an author was subject to all regulations burdens or whether we think of the st amendment speaker as a publisher with limited to only yeah go ahead i mean schuster was not a standing case in the supreme court was not purporting to make any sort of a holding on standing and we know from steel co that we're not supposed to rely upon tribes by jurisdictional rulings or holdings so i mean isn't this really more akin to a certain party standing case here where you're saying you know we have a right to to hear information from another speaker and that speaker is impeded from speaking to us and participating in our forums and allowing us to publish their books isn't this really more akin to that line of cases where you are really in effect standing in the shoes of a rd party asserting their rights i don't think so your honor and we don't rely on simon  in support is the pit noose cases from the rd circuit in what the pit news does and what we have done in cases like um american library association v odom which is not the case that either party sided but those cases say you have to also look at prevention standing  because you're having someone in effect standing in the shoes of the room the real party in interest so to speak and so you have to look at things like whether that  other person is really hindered in bringing their own suit and i don't see any allegations in your complaint that say that and also you have to ensure that there's a complete ali interests of the plaintiff with this other absent party in that also concerns me because you say in your reply brief that you can prevail even if the settlement agreements get blown up so the speakon invalidated you'll still get relief but if that happens if that were to be the result of this lawsuit  these rd parties will be worse off than they are now and so your interests are aligned so why why shouldn't i be concerned that granting standing for you is question of whether a ruling in our favor would blow up all of these settlement agreements across the board again goes the question of whether we receive a facial or an as applied remedy when we get to the merits i continue to disagree that under the   news the rd circuit said the newspapers didn't have rd party the alcohol retailers could perfectly well have let a gated under their own rights but because the newspaper was a publisher that wanted to publish that advertisement it head standing in its own right and i think caters and exactly the same position and news there was no evidence in the record that i saw on the menu and that the regulation had even been in the works again these retailers the retailers out of an abundance of caution were  and if we also believe that we are duty bound to undertake that analysis in what we said in odom was that if there's if there's if the if the plaintiff may have a conflict of interest with the absent party we held and that was a basis for the holding that there was no standing  standing which i don't understand the at the great i don't know that there is a conflict at least as to the people who had specifically told the cato institute that they want to speak at the bends and again i just think this goes to problem even if there is a narrow targeted as applied remedy it i was helped only if there is some speaker who comes to events and publicizes the alleged f c c overreach and when that happens as to that defendant the f c c would seem to be well within its rights to go back to the court and say this defendant has breached our agreement and we now want to proceed with enforcing i think that's where the declaratory judgment would come into play  right to reopen for whatever reason any settlement agreement they say they want to not that they can say this person has that bad things about our prosecution and therefore just like declaratory judgment says it would violate the st amendment punishing them just for speaking it and it is a bench they can still be punished or know what seems to me what seems the main lost in this whole discussion including in the briefs is the fact that we're not dealing with  agreement between simply an agreement between the f c c and a private individual this is a consent decree is a judgment that a court and which and there's a rule that says when the court enters a judgment and you violate it you're in contempt of court and it seems to me that the looming question here is how do you how can one court order another courts to creep to not be followed when you have to go back to the to the judge of the district court that issued the consent decree and get them to modify it isn't that the only way that that can be we're at least there is i guess it's there's a consent there's a consent i guess it's a consent document i'm not sure exactly how to characterize it  that's filed but i think to judge randolph's point isn't there at least a possibility that our declaration is going  to conflict with an order that has been entered by another court that's not even in our circuit i don't think so you are and that's because final relief in this action would have to be entered based upon a record and i don't think even the judgments that incorporate the consent order amounts to a continuing judgment of another or even if i'm wrong about that we've established that there are a number of these that are not  law restricting freedom of speech a contract can a contract be a law of restricting freedom of speech for st amendment purposes are you not makes the party has a right to speak and and contract it away that doesn't seem like a st amendment  again your honor i think we're racing ahead to the merits but i do think it can be executive it using the cult and its powers to coerce people and to surrender st amendment rights and the case to look at here is really the port circuit's decision from last year which is on all fours with this case with a challenge to a very similar city of baltimore policy of demanding gag orders and the condition of settlements and really the only difference is here we have substantial allegations that specific people would speak at our events and be quoted in our publications and over being the th circuit standing based on a single allegation that was one sentence long the difficulty about fact the policy impeded the newspapers ability to carry out important the press but we have more here than over the did over be recognized that demanding settlements like this that demanding gag orders like that and violate the st amendment and that rd party newspapers have standing to speak forward looking for me to challenge but then over being you also head the person who had signed the settlement agreement as a in the court clearly had jurisdiction over the baltimore police department as the district of maryland and the four circuit so so you didn't have a problem where where the speaker who was directly regulated wasn't before the court there was a potential for conflict of interest and there was the potential for getting crosswise with another court's  the other questions from the panel now you know all right thank you mister mcnamara we'll give you some time on rebuttal we'll hear from mister berger and morning and may it please the court jeff berger for the securities and exchange clear cato institute the plaintiff has not entered into a consent judgment with the commission that ions it creates any legal consequences for it speech there is no legal obstacle to cato publishing a book or hosting seminars or hosting conferences rather to judge wilkens point this is a rd party standing case because cato premise is standing on a derivative injury namely that unnamed defendants who previously entered into consent judgments in who are not before the court are declining to speak this theory of standing fails because it is based on the subjective chill of non parties who have not even been identified  challenge you in the commission settles cases there is no legally cognizable injury that's concrete particularized an actual or imminent in under this care this court's and supreme court's precedent in cases like united presbyterian in laird an american library association and i'm referring to american library association if you are not the case judge wilkins was referring to kino is stating and of emphasis of what it states in its reply it says that kiddo's injury is that people are refusing to speak because the commission could move to vacate the consent judgements emphasis on could do if there's a public denial of allegations there is no other consequence that could result from a breach under these contracts are you saying there's no reasonable likelihood that if that allowing defendants start broadcasting their stories to the world that the commission won't exercise its right to continue with enforcement against them i think it depends on and on a large number of facts and circumstances and we both os and see in this court have been deprived of any information regarding those facts and circumstances let me walk through we don't we don't we don't know for certain there's no doubt but usually usually we assume people will their governments will enforce laws or in this case consent decrees right at the the young usual case the poster says all men kind of case where there's a law on the books but the possibility of an foresman the shown to be very remote and that has consequences for standing a rightness purposes no reason to think that yes he she is insisting on insisting on these provisions in its settlement offer and if settlement contracts just with indifference to whether defendants broadcast it it's not with with indifference but it is with a recognition of reality that happens on circumstances for instance a case where someone  that's talking about what the commission is going to do not what the individual's reaction to a clause restraining them from talking i'm sorry i didn't mean to cut out no i mean in the end this gets to the fundamental part of free speech law that if an individual is subjected to a law in this case a consent decree that restrains or speech they don't have the violated it st before they can challenge it unfair unlike other areas of the law with respect to st amendment free speech that is a standard boiler or a standard you know black letter rule that you don't have to violate it before you can challenge arises by contract rather than by statute i think it makes it is huge difference in terms of whether the commission in terms of what she has alleged the commission has done whether the commission were actually seeing the remedy before that court to make any arguments they want including the types of st amendment arguments you have here that would be in a more specific way the issues would be more clearly presented but also it's not asking this court which is what she is we have a we have a plaintiff asserting the rights of rd parties yes that may be a good argument but it's a credential standing argument and pretty clear after june medical th prudential standing arguments are forfeit able and you argued this issue solely in article three terms i disagree with that your honor our motion to dismiss mean certainly risk prevention arguments we talked planes based on contracts which they're not already has been kind of depression standing issue you know comes into play as part of the sort of comedy analysis that comes you know more and granted in terms of our rightness argument i a supreme court that the authority to deny jurisdiction to over a matter the congress said is within the jurisdiction of the federal courts is that constitutional for the supreme court to do that for the i mean that's what's driving these cases the indian casino case that i mentioned is a perfect example of that i mean the guy and i did great question it's an interesting question ultimately i think  this case an article read routes that didn't read that difficult question which probably goes back to what the screen dorian's let me ask you a broader question here because we're arguing back and forth and i said earlier that it's hard to separate the merits out from the question of standing but is is this case really analogous to something like the hood where the supreme court held that you just don't throw a case out when jurisdictional grounds simply because the it  appears that the individual will not be able to recover and elfie hood was what twenty years before the events you know with the claim was that you can get dirt damages under the th amendment in the court threw it out on  that is one of several problems that we don't know the identity and people which is required by cases like runs earth and summers but even if that were to be provided you still have the problem there's absolutely no allegation in the complaint disagree with you on the reasonable likelihood of enforcement as against the one speaker they have  so then and then you make a different argument which is that the only restraint at issue runs against the rd party defendant who's not before us and cato is free to publish so i was what i was wondering about that i mean isn't a fair reading of the complaint that cato is bound not to publish because the rd party can't speak they're not really clear about this but it seems like the the a reasonable reading of the complaint is that the rd parties are going to kato and saying here's information you can know about it in the legal advice about whether this is a lawful restraint but we are not authorizing you to publish it to the cato faces no exposure visa v the commission which is clearly true but they might face exposure visa v the rd party a rd party has told kato we're giving you this information but we're not authorizing you to publish it i mean if their argument becky those injury is that their contract with the author could somehow be disrupted in the entered into that contract corner their own allegations knowing full well distinguished you know from the newspaper the magazine that was an overbet with the ability it's the ability to publish information that that's not how that's not how the sports circuit articulated the injury that's not how the baltimore brewer has the ability actually i assume that the right way of thinking about it they have they have information they want to publish it and they can't because of the back to the whole mind of united presbyterian and moves away from what the issue wasn't i mean i guess i'm i'm just trying to figure out if you have zero a level of defense decides number one rd party standing and number two on likelihood of enforcement of the s e c enforcing against the rd party or are those your two not a no no i mean i think there's issues with actual or imminent but then they are those also cleaner   all right mister mcnamara you are out of time will give you two minutes for rebuttal i have a question that i forgot to ask during your opening so let me let me begin by just asking that whether whether the limits to the principle you want to establish here so suppose cato or some other entity were interested in waste fraud and abuse in the government whether it's a courts congress executive branch in they say we'd like to hear from you know law clerks congressional aides government officials about waste fraud and abuse but there are all these rules and regulations  that prevent them from speaking to us in they could get fired or there could be you know there could be ramifications so you know we want to be able to challenge each and every one of those regulations as you know because it's it's impeding our st amendment rights to kind of be able to effectively advocate against waste fraud and abuse etc my problem is is that if we accept standing for cato here don't we just open the floodgates for anyone who wants  to publish speech of someone affected by a government regulation to be able to indirectly challenge each and every regulation like the i think we have t problems bringing that lawsuit your honor one factual problem we have to be able to identify the particular speaker who has written a book and come to us and said you can publish this book full of confidential information which is going to be a difficult factual thing to find because that point the law clerk or other government employee has already breached his duty and so i don't think we'd be able to find a feed we had the actual speaker and we have a merits problem or i think there's a very different st amendment calculus between the government saying an exchange for us giving you access to this confidential information you have to promise not to disclose the confidential information and saying and exchange for us letting you plead to count one you have to promise never to question the accuracy of count two i just think that the st amendment calculus would be different but the spending problem i see there would be a factual problem much more than it would be a legal problem i can't imagine a plaintive having the sort of concrete speakers that we have here and if i could make just two quick points on rebuttal i i think this is not a chill case the subject of chill cases like laird an american library association the bar all involved plaintiffs who it wasn't clear that they were even going to engage in activity that would be illegal under the law here we have people who have specific agreements  say they specifically may not say these specific things and the only way to save them is to risk expensive litigation which i think the supreme court an s b a list made clear we can't expect people to choose between engaging in protected speech  and retaining attorneys for potentially extremely expensive litigation and nd your honor my friend complained several times that the record before us doesn't identify each speaker and i just want to stress again that this is a remedy problem we're up here on the pleadings and of course before court enters the declaratory judgment it will have a full record before it of who has contacted kato and exactly what they're willing to say and at that point i think we can wrestle with any of these problems and i'm happy to do that there i don't think it's a twelve thank you all right thank you we have your argument and will take the case under submission