you may please the court i'm robert musa of the american freedom law center that it's my honor and privilege to represent the plaintiffs appellants in this important first amendment case and i'd like to reserve three minutes of my time for a bottle and to begin this case is not see mack there is no evidence of vandalism or violence no evidence of reduced ridership nor any evidence of a substantial resource diversion with regard to my client's a proposed advertisement so even under sea mac granted they have held a restriction that was similar to the disruption restriction at issue in this case facially but as apply the court made it clear that it had enough to definite definitive and objective standards so they can make an have something rejected for example if you had an ad that said the mayor takes bribes and that's demonstrably false do they have to accept an ad like that well i think as a matter of law having a false or misleading standing dealing with public issue or political speech is constitutionally suspect and in that clear from the new york times case is clear from alvarez that's clear from the bronx is what judge moore yes thank him that's a yes or no question can they can in theory and and be rejected on the ground that it's false and misleading and the theory is false and misleading is the family story yes under defamation but false and misleading dealing with a pure political or meaning in a limited public form it is very interesting because a limited public form you can make restrictions based on speaker identity and you can make categorical restrictions based on such a categorical restriction as we would like to have truthful ads on our bu because we think that's a public service to to have honest things on the side of our busses and is that categorically improper and it's improper when you're dealing with a public issue i think for example like the arab israeli palestinian you know the israeli palestinian advertisements or even in the case with the terrorism advertisements you know the fact that our client wants to describe them as and they say well know that they you know they're terrorists or maybe they're freedom fighters or you run you run a substantial risk when you're applying a misleading or false standard to public issue political speech and that's why the first woman does not permit that again the new york times and alvarez make a very clear and judge book me the very clear in particular in this context and look at the the rewards for justice program the f b i works with the state department for that in the end actually includes the contact the website for the rewards for justice program there is nothing even under if it was a commercial ad there's nothing materially false about that advertisement as a matter of fact but the fact that it's a political public issue speech you have that additional problem constitutional violation problem of trying to be the arbiter of truth for the government in those ads in new york times is you cannot how many applications for land use permits were made in the city last year i mean there are thousands of things that are capable of deciding whether they're true or false and with respect to those kinds of things  i guess i don't understand why in a limited public forum which is what c max says we have the government can't say we want factually based statements to be true on the sides of our bus in a good u i when you're when you're dealing with it and i am referring to what the what the supreme court has said and that's where it has any of those holdings occurred in the context of a limited public forum and the decision whether that type of restriction is quote unquote reasonable or not well not per se but i think if you look at judge board's decision one model which was judge starr and judge scalia or unanimous and there he made the point that having that sort of a restriction on political speech prior restraint on on political speech is unheard of was his term and deservedly so and i think it should be unheard of well deservedly so i added the word political you sort of side of the  with out and my question really was about those things that are capable of factual determination even if they're in a political context for example let's say there were five land use applications and they have said there were five thousand applications therefore we need to impeach the mayor or whatever may be the factual part of that that's demonstrably false is to most from us and i guess i'm not sure that any of the cases has has dealt with that yeah and they said you know one of the i think le bron case is the is the closest one on point because it's dealing with bus advertisements and in this case i would even refer back what is what is the  marginally false about the advertisement there is nothing that's materially demonstrably false about that advertisement it says virtually the same thing is the state department ad fact one of the issues that they brought up is they were concerned that there might be two identical so there might be some copyright issues so  actually made modifications based on what king county was concerned that they might be too similar and so they made modifications that est essentially the same message that there is nothing to martially fossil that if you notified if you filed one of these terrorist you identify when these terrorists you contacted the f b i as what to say this ad is saying as opposed to contact in the state department you can be certainly led to the rewards for justice program he's certainly going to have whatever awards might be available to you under that that is to say that that somehow was a basis for rejecting this i think is an absolute red herring suppose the this is a hypothetical suppose that the list of pictures by the time your client submitted there or that the state department had removed one of the individuals whose photographs appear in that sort of line could they reject your out on that basis well i think that would be you know what i would say when i would hear a question from the b going to answer it with a yes or no please do and then give your explanation on so is the answer yes or no answer is no they they should not be able to reject it on that basis and if if if one of the pictures in this stream had not only not been a terrorist but a previous winner of the nobel peace prize could they reject your a in the in the context of this adam say no because again i think the overall that we are sad in your mind would not be false or misleading or it's somewhat of an odd hypothetical but if it's a i would say in the context of political speech to say false or misleading i say no that they can't that's not a basis for so doing if you propose they absolutely had to reject whether it was inaccurate even by a smidgen or a lot that's your position said we think it's false and misleading and they identified that it's at the state department and said the f b i into the state department and it said up to twenty five million and they thought that was misleading because there were very rude wards if you will for each of the individuals did your client yes or no offer to alter the ad to address their concerns no and if you look we i think we understand completely why you did what you did we did not and we did not because we do not believe that number one that is actually false to begin with as a matter of fact and compare it even to the the ad that they accepted they offered up to twenty five million dollars in rewards there's only so much detail obviously you can put an advertisement and you put the you put the website on there for rewards for justice those are not materially  false representations by any stretch and we don't think i'd count counsel stood cool if i could interject the question on a different issue because this is coming to us procedurally on denial of her requests for injunction i'd like you to at least briefly address why an injunction a mandatory injunction should issue here even assuming that your client's right and you have a likelihood of success on the first amendment merits and the question in my mind foremost is you know what is the damage to your client can in obviously in the first amendment context implementing junctions the often dispositive factor is the substantial likelihood of success on the merits and that's because the supreme court particularly versus burns and a whole line of cases makes very clear that even the momentary loss of first amendment freedoms is sufficient to cause a reparable harm for injunctive relief to follow and so when you when you if you can if that was a substantial likelihood of success the public interest it's favors the public interest to protect co constitutional freedoms and it's a reparable harm is a matter of law so if we can establish a substantial likelihood of success as a matter of law applying the principles in winters of the four pluming injunctive relief and injunction should issue as a matter of  we've recently come to think that that other winter factor still have to be met and we also have cases that say that mandatory injunctions as distinct from those that merely maintain the status  the irreparable harm in the public interest weigh heavily heavily in favor in fact it's almost dispositive the the substantial like of success in a first amendment case like this that injunction should issue i know my you've already run into my rebuttal time a please the court david hackett representing king county metro transit for the game county prosecutor's office the first amendment does allow the government to regulate bus ads when those regulations are reasonable and viewpoint neutral and the case law recognizes that buses represent a special type of limited form they're a special type of forum because you have the captive audience problems that were recognized in laymen and because you have the strong the need to run a proprietary bus system as with any business you run the purpose of raising revenue for our best system and we are able to do that as long as the regulations are consistent with their needs and if you didn't allow them at all this would be easy but yet you do allow them and so in terms of the issues that were dealt with in c mac leaving aside for a moment the question of false and misleading it seems to me that the disruption of the proof of disruption is case certainly seen mackie is the extreme case where you have actual safety concerns for the bus in this situation we're talking about interference with the systems need to be able to attract riders and to maintain a safe efficient and pleasant it's pretty speculative i think that the reasonableness standard that applies to a limited public forum allows that type of discretion it allows that type of lenient inquiry and the reason is that absent giving some discretion to the bus folks as your honor says we will not be able to accept these types of ads you will have less each not more and that's the controlling principle from both cogswell in this news it would be a bad result in the us supreme court directs that it is a bad result as does cogswell recruit says that it is a bad result to go down that road limited public forums are a special type of first amendment forum where it's recognized that the government has important needs in this case to operate that proprietary system to operate a business where people want to ride your buses and also to protect the interests of a captive audience which are the customers on that bus sale discounts up to twenty five percent and showed for garment items on the side of the house and in fact not everyone one of those was eligible a twenty five percent discount some were five some are kim some are fifteen but that the factually false and misleading advertisement no it would not actually reflect the initial state department ad where it said up to twenty five million dollars reward that's all it said f b i then changed the language of that ad and there there altered language said that the f b i is offering up to twenty five million reward if you help capture one of these  jihadi s so if nordstrom had put up and ad that says twenty five percent off any one of these dresses and then you walk into nordstrom and it turns out it's only one of them as a customer you would be misled as a bus system we're not required under the first amendment to accept that type of that and answer the question that your honour's were asking a pose in council king county through its contractor titan did reach out to f b i to ask if the further discussions were or merited to help clear up those two misleading parts of the ad the fact that they substantially overstated the amount of the award for capturing any one of the jihadi s and the fact that it was a state department ad not an f b i ad and as the court will notice from your thirty seven f d r i said no need to discuss we all know what comes next they weren't interested in making the ad correct they were interested in making what is a fairly extreme first amendment point that that you situation there would still be two other problems with the would be we rejected it under our demeaning a disparaging pronk for two reasons it's demeaning to show a picture of someone the state department has i terrorist well following following the publication of the state department ad king county metro did learn a few things and we learned that from letters and other communications that were made with king county metro explaining exactly that point which is why this ad was that you have a small number of very small number of very dignified compliance and they may be well taken but it certainly wasn't necessarily disruptive which i know is a different question but they are also necessarily disparaging i don't think that there is any requirement that an ad must be disruptive in order to prevent it from the bus system seem act as an extreme factual circumstance but it is not the only factual circumstance that justifies regulation of a limited public forum what you're telling us and i want to be clear about this that  a less demeaning and disparaging if state department vs if the ai is cured in the amount of the rewards per individual or whatever or cure well to give to give you an example it's  ok if you take jihadist out i think you still have the problem that faces of global terrorism suggests that an individual who is of color is a problem now i have not considered the hypothetical your honor of taking jihad a stat i think having jihadist in is an important part of the dad and all of those things work together to demean persons of color so for example in the boston what if you just say these individuals are wanted for terrorist acts most wanted ad published in a heartbeat not a problem the problem was this one tried to make a broader statement that demeaned and disparaged actual riders of metro minority passengers and no business stays in business by demeaning and disparaging its customers that's the bottom line and absent that as has happened throughout the country both with a f b i and with others forms have been close to political and public interest speech because bus companies in the second circuit in the third circuit in the d c circuit and in the seventh circuit have been denied the ability to reasonably regulate ads the courts have applied a designated public form standard even in that circumstance they have required to tight a fit between the interests of running the bus system and the of the speech  initial hurdle in this case we're bound to follow its general discussion as to work kind of forum and yes ok yes i agree with that and see mack is right we decided both because it follows cogswell and because it follows the forbes decision in that more speech not less each guiding principle supposed council go ahead george go you go right ahead well i just want you to elaborate on one part of your argument that is what is it specifically that your client thinks is either misleading or disruptive or demeaning about the word hottest being in the air well gee hottest it is is a is a general term and as the district court in boston decided before our case and i think as judge jones also explained jihad can  arms against enemies in a holy war and if that's correct if that's one of the meanings then we're dealing with free speech issues here then explain how that can be viewed as misleading i would say that in that circumstance what would need to happen is reference to a violent jihad assist a jihad a seeking war in the boston ad the day after the i submitted which is documented in the district court decision that ad was initially rejected when it simply said gee hottest when it painted all muslims with a broad brush f b i then came back with another ad and inserted the word violent jihad asst which the boston in him bta then accepted  clarification i could present you with the book the nine hundred ninety nine thousand nobel laureates say it's a problem but there are one or two out there that say that it is not the words i'm looking at something that is not the monster a bully falls but that is there is a dispute of opinion about it i don't believe that that would run afoul of any of the provisions win or not don't want to same sex marriage harms children would you accept that i think in that situation the client and it would be looking at the question of whether that demeans individuals who are involved in same sex marriage i don't think you can demean the planet by claiming it's a hoax but you can to meet individuals who and that's demeaning piece of this i take it is that it refers to faces and then shows faces of people of color as distinct from these  faces of global terrorism a can it can buy billboards it can do lots of different things but if it wants to advertise on the buses it can present its viewpoint it just simply cannot do so in a way that is demeaning and disparaging and that same type of  restriction applies to anybody who wants to advertise on any type of middle eastern or terrorist type subject we have accepted arguments on all sides we have accepted ads on all sides of the middle eastern debate in this case the court has the opportunity to go beyond the extreme facts of c max to clarify that when a bus company like metro looks at ads that are on its buses it can regulate those ads in a way that is reasonable and that in a way that is conducive to its proprietary and captive audience interests in that situation the bus companies are allowed to a d are able to keep more speech on the buses not less speech a rule that is overly narrow that overly scrutinizes the decisions of bus companies in this regard will simply result in closures of the forms as this help happened elsewhere because going to court quickly overcomes the revenues and it is in the interests of the first amendment to keep those forums open to the str properly rejected under any prog of the advertising policy then it should be rejected and basically the met the bus companies decision should be upheld so those councils well well what's your view on the damages issues then the irreparable harm issues that will lead to whether there should be mandatory injunction i believe that in the context of a limited public forum your honor that the court needs to look at those damages and irreparable harm issues in light of the first amendment interests that exist in a limited public form particularly when you are dealing with a captive audience and when you are dealing with a proprietary interest of the bus system it is important not to simply assume that a f b i has been harmed but to have f b i prove that it is been harmed f b i has not done that this record is silent on that in fact the only part of this record that a little bit of rebuttal time remaining thank you and i do thinking as we mentioned a supplemental brief in light of the change in the policy in two thousand and twelve that this court can reconsider the formation they've they shut down the form to all the closed off all those arab israeli  scheme is really palestinian advertisements and they shut down all public issue speech then two thousand and twelve they reopened it they exit they specifically intended it to allow for public issues speech controversial advertisements including evidence on the israeli palestinian conflict including advertisements on on terrorism so i i don't think it's necessarily for clothes and i do have grave i think is great a first moment concerns that if you can open up a form to public issue and political speech like you do in here to give the government broader censorship powers which is essentially what they're asking for we're going to allow a lot more speech but give us the ability to say who's the one that's going to speak and who's not going to speak and echoes of this point about like the faces of global terrorism the said faces of freedom fighters is that the meaning of disparaging somebody those individuals listed on that advertise my client's advertisements are listed on the f b i s most wanted global terrorist list those are their faces in the wanted poster and the fact that my client and at the end of the day the point clients trying to make is not the rewards for justice program it's making a point to look at the state department pulled this thing for political correctness and we're making a point to look these are jobs that are a danger to us and we're going to call them jihad is but if they say but the government says no you've got a called freedom