good morning may please the court steward rafael from murphy brown let's see before explaining why the gag order entered in this case is unconstitutional i want to first address the question of whether the mandamus action is moot in light of the district court's decision issue the in the case i mentioned the ninth circuit didn't address this aspect of the case i don't know that it was raised as a problem with what the district court did but it did decided based on the contras decision so either way and in that case  sure if that's the one the court's referring to and when the when the district court dismissed the gag order the mandamus petition was dismissed but i don't believe there was an opinion addressing the jurisdictional question but it really doesn't matter if you have  now because you can you can decided it i think there's a there's a practical issue is if the court didn't have jurisdiction to enter the august thirty one order then the remedy here would be to vacate the august thirty one order and the gag order but if you think the court if i'm recalling those cases correctly the fact that there's a myth mandamus petition pending does not mean that the district court loses jurisdiction over everything i don't believe those cases addressed the issue here where as judge wilkinson pointed out the you're really bad that's correct and and you have flexibility under the all writs act you don't actually need to vacate in order below in exercising your mandamus power you could do what you did in charlotte observer and say we agree with the petitioners that what the district court did here was wrong we want to provide guidance it doesn't happen and we expect the district or to abide by so so you have great flexibility in how you fashioned release here but what happened here was wrong because the district court treated this gag order as an issue right the burden is a little higher on us if it's capable of under the capable of repetition box under the fallen tree sation box that burns on them to show it's absolutely certain that the issues with the war and not absolutely absolutely and with so i think that's right in the presumption is that gag orders as prior restraints are presumptively unconstitutional so really the burden is on the party seeking want to show why it's needed and i think that the point is there are rules and responsibility notice i mean i don't see any help for conduct a review of the gag order and all you've got is the gag that we agree with that and and the then they're on top of that you've got the issues of the the order having phrases that have been deemed unconstitutional by the u s supreme court and by this court so we think this would be an excellent vehicle for the court to write on this topic to explain that a gaggle or must be a measure of last resort particularly in  that's correct and we couldn't find a gag order in the civil case that looked anything like this this order would have lasted for years and it grips the parties from saying anything about the case i got a phone call from a legal reporter the  before the judge tried to vacate the order asking me about the appellate issues here and i said i can't even talk about the appellate issues and that just can't be right you cannot have a restriction on speech those that brought as a measure of first resort from the defendant that talked about intimate eleven there were then blog postings by a group called and see farm families another group called them or council there was an article about this being an attack on farmers are federal cases are not that's correct your honor so so is your position that you don't support this guy  believe we believe that the gag order can be supported constitutionally however honestly when the gag order came in and then the defendant filed this petition we went back and looked at it and thought district court had asked us to brief out what a gag order should look like what we asked for and we came up with what we would ask for and we did two things we put that in our response three before this court we also put that you know a motion to the district court which they asked the court to clarify its order and i want to clear that up and address judge wilkinsons concern all that's after the fact what we it is this yes right whatever happened in the district uses criminal and civil action it takes good care of tailoring a remedy to pick you off i giggle the violation we choose is absolutely essential to law there's some going in coming and kind of thing and not clear this up that this is wrong i would notify you things i would know that the prior decisions of this court and gag orders have used a different standard for participant gag orders versus orders restrict the press or the close the court proceedings in ray russell this court said that the standard for a protest with gag order was reasonably light reasonable likelihood that the extradition statements would prejudice to see that standard or a substantial likelihood standard is the standard second circuit third circuit the circuit that's the chance or it is different from the stricter standard that you find when the know that right i think it's very unlikely that there'll be another need for a gag order in the case that september eighteenth deadline to file a motion for one came in when it did not file a motion for with all this briefing that's here and with the fact that his honor in the august thirty first order stated if you want a gag order in the future file a motion onse i think his honour's gotten the message member the thing that we would note is that in many of the gag order cases the way it gets the fourth circuit or another circuit court is that first there's a motion there's briefs there's a hearing then ther and we feel like under the circumstances especially when the mandamus standard asked that there's no adequate alternative they had to just assume the judge britt was imbedded in his position and wouldn't listen to the parties on it i don't think that's correct i don't think it gives the judge respect i'm not a couple of the things i believe this court does have jurisdiction it's for this court to decide whether the controversy is moot or not if this court is going to don't have to because it's your discretion as to whether to find it sure and as your honor pointed out in this situation we looked really hard at what the case law was before we filed our motion t in the ninth circuit the bali in case i would point out that it was cited in our brief there was information released in the press that was supposed to be under seal it was published district court entered an order preventing further publication if titian for mandamus was filed before the petition was heard the district court vacated that order and circuit then issue is that we are concerned about how this case was immediately brought here without giving judgment every any opportunity to really look at his order and then filings were made here that didn't discuss half of the facts or half the reason why he ent setting expedited briefing i then e mailed the other side and said we would like to limit the scope of the order we think it only applies to the five cases we think the potential witness should be defined as this court defined potential witness  and we think the time duration should end with each trial we think it should be limited they catered in part the other side said no all that will do for us is vacating in full and what's concerning to me is it's they wanted this fight to come here and i think it's a little bit disingenuous for example if they had agreed with us to ask the district or to define potential witness narrowly like we suggested yes what every grower out there could talk because a potential witness was just people under subpoena or testifying ninety nine percent of the universe potential witnesses immediately can speak so the irony here is that if the defendant really wanted to protect the first amendment and to protect the right of speech on and we believe that can be done now because we have this oz the next trial the fourth trial is not until november as the court noted in saugus thirty first order but i do want to emphasize that the situation on the ground during the second trial felt like the integrity of the court process was being threatened by extra diesel publicity want to tell us what what do you want this court do with th i would like the court to give any guidance that it sees fit however i would know that the standard that they ask for of findings of fact up to to be heard very high standard that's not actually the standard of discourse used for to something gag orders this court is used a different standard if it's the press or the court proceedings being closed so i'd ask the court to look at that past precedent i believe the narrowest holding this court could make would simply be to do with the ninth circuit didn't dismiss the petitions made however the corps has expressed concern that it needs to comment further that would be very helpful to all of us if the court did  i don't think voluntary sation is the exception as i just wanted to note that because federal rule of procedure twenty one makes clear the district court is not the defendant it's not adverse it's an article three court and there is separation between our position as the plaintiffs and the district courts position the federal makes clear that we're not here representing the district court it's more like an adversary p  it sounds like we're in agreement with plaintiffs that the court it would be helpful for the court to provide guidance for the next time this happens we agree with that agree that if this ever comes up again it look at the aug thirty one order the court in the district court invited the parties to file for a new gag order and used the phrase similar order and there's really no acknowledgement in that order whatsoever that there were any firm of these in the earlier order  the order does not prevent the plaintiffs from seeking a new gag order i think they were i think judge jones when you asked me the question earlier i think you may have i may have not made it clear that the plaintiffs have said have taken the position with us that they will regard i think it's important with regard to what's in the record it's true there was no record compiled by the district court but we did have and we provided in the joint appendix of war gear in the in the three trials that went forward and they showed that the order was absolutely adequate argument last week in the in re wall street journal case which was the case out of west virginia the blankenship trial the government the defendant wanted to get her in that case to protect that the government took the position that it took no position and the panel had a great question for the government a real argument which was you say that you can get a fair trial with or without a gag order right and the government said yes and then the panel said well if that's the case and it demonstrates that a gag orders unnecessary doesn't and i think it i think it does we have the same thing here with the plaintiffs now saying and you're right it's a moving target the originally they wanted to keep the gag order least in a narrow form now they're saying at least for now they're not going to seek one which i think demonstrates that a gag order isn't necessary this is a very unusual cases judge wilkinson point this this gag orders unprecedented in the civil cases hersh cop says civil cases are different from criminal cases and it's unprecedented it's very unusual to have the reporters committee on freedom of the press and eleven other press organizations on the same side as in this industry groups and i think what that shows is this broad recognition that what happened here is a real threat to the first and that the court needs to issue an order an opinion that sets forth the the the principle that gag orders in civil cases must be orders of last resort and explain why the phrases that were used in this order are constitutionally infirm and for these reasons we would ask the court to grant our petition for a message to make these rules clear