why did the parties think it unnecessary in light of changes like bank of hope dropping its suit and to not go back to the magistrate judge and say it's time to revisit this order because we're getting ready for the trial of a counterclaim in that underlying case so the underlying case is going on and we were true enough i mean i understood that but is it not very possible that a magistra judge looking at a substantially altered legal landscape that is no claim at all coming from bank of hope and the fifty four thousand dollars counterclaim being all that's remaining between these parties might think things are different now i would weigh things different i wouldn't think so when i asked the other side would they do you want to agree to or lift the order so and they said that they weren't agreed so i don't think that without the other side i might be agreeing with me is why why is it that you wouldn't ask you say you have no confidence or would be a difference is there something that prompts you to say if you went back to the court and said the case is very different now there's no claim come from bank hope at all this is the only claim we think something's should change and you made your pitch to the magistrate judge that you made us why do you think that would have no traction at all because there is still so much going on between these parties with litigation in the southern district litigation in the nd circuit with this case and with the counterclaim going on i don't have any confidence that the judge would say that you could not that he was going to lift this in order to prevent my client from speaking out about the harm that he has suffered as a right no i know that i'm not suggesting that at all i'm suggesting that magistrate judge there is going to change we don't have the same district judge judge lynn ours has retired up down retired from the bench so and we just don't have the name of the new district judge off the top to agreed that there should be lifted that he would agree to lift the order we are get is to have meant to the this is not a legal question just a practical one is that mr reused position that he still needs to and wants to send letters of the very same character that he was sending before out to the shareholders of bank of hope now as he was sending when bank of hope you had a claim against him yes absolutely he very much wants to exercise his free speech rights with respect to the shareholders of the pac he wants to say the same things the same kinds of things grievous injustice he's been harmed his life has been ruined i think it's not so much grievous harm as life's been room etc i take the problems that they have with your you've handled this lawsuit against me and not very veiled threats to concerning stock price yes he he did express that concern explicitly he is concern for the management of this organization that it would that it would that it would take these actions against him and there's no question about that he thinks there's been pretty serious mismanagement of this problem on the part part of the bank and he thinks that could affect the bank that i'm correct that you this is only communication with shareholders he has not attempted to and i think is of fowls any contact with the directors officers the people directly managing the litigation correct that's correct he did correct them he did connect contact them and then he was ordered not to and he hasn't done so is not before and that issue is not before you nor is the confidentiality of the document that he disclosed which he realized was a mistake and he didn't do again  not not is not before you it is simply his right to say that he's being treated unfairly which is before you and it's a pretty serious right or right to say that you've been subjected to mistreatment wherever you are in fact it's hard to imagine any circumstance in america where you could be mistreated or be treated unfairly and be unable to speak out about it and the reason is that you're not able to speak out about it counsel it's that there has to be restrictions on the parties decorum in the right i mean i'm assuming i'm assuming you communicating with the directors and the shareholder the directors not sers but the shareholders or rd parties and it's just seems as a matter of fundamental fairness that if the bank can accuse him of embezzlement in a lawsuit that obviously would have the effect of destroying its reputation his life that he should be able to speak out not to lead against but to rd parties about his complaints against the back when you say rd parties was a rd i mean these are not unrelated rd parties right i mean it is the argument coming from the other side of course is this was a calculated effort to gain a commercial leverage financial leverage over the bank and the lawsuit it was an effort to go to institutional investors not by chance or ha that they would pressure the bank to do something different and if they didn't do that that he would do things to drive the stock price down that there are economic interests were going to be harmed that was the tenor of his to the bank officers and one dollar could fairly read this language the loss of confidence by hope shareholders and bank of hope due to this litigation in the banks now price will have significant consequences when the market trusts and ho management waivers the market value of this regional institution will decline as a major shareholder your prompt attention and action may be warranted that language looks like a direct appeal to these people who have a financial interest by saying then i'm going to hurt your interest and you better make things happen at the bank because you can do it so it's like speaking to a newspaper this is speaking to closely related people and it to pieces and it no they're not really closely related all their institutional shareholders are not close at all there's really as far apart as you could be and certainly he wants to speak and that's a valuable audience for him that is the most valuable audience for his speech because because he has been treated unfairly and he knows that there's the shareholder the actual pressure to be right but i could be one of that could be how it works yes you run a correct that's i'm not disputing that i'm just saying that the the interest is interest is not purely economic  has an interest in his personal dignity is an interest in his reputation he talks about the fact that his family's it is not and and the fact that it's an economic motive is because of the the nature of the injury here which is economic but a large look at the legal piece here so  it could be mixed commercial support i do think that's actually under case a little bit of a stretch because there's no goods or services so i say if anything it could be i'm going there for the sake of argument but it doesn't look at all like the commercial speech that this court has recognized or the supreme court has recognized in the past right you reserve five minutes so we can't we don't have a bunch of time to get into choir but there's there is case law out there that indicates that in the context of litigation this kind of thing can be viewed as commercial speech as there is one case there's the kleiner case and that's it and there's nothing else other than that and this and and it doesn't make me it doesn't seem to meet the supreme court's test nor the test this this court has articulated and when you look at it with what you said about in the in the in the diatribes case above with where there's a mixed commercial speech and noncommercial right it may be wrong it's really not the business of the court to be policing communications any more than we should go to the court and ask for permission to make a press release if we want to it's it's outside the bounds of what and that's why it's a prior restraint and that's i mean this is see to my co counsel here for a moment if they don't have any questions for you i  do let's let's talk here about jurisdiction for a moment you've read your opponent's briefing saying they're just there's no jurisdiction here and you've marked out  figure you did you put three in front of us it's a smorgasbord which you think is your best well i think bail is the best case for us because it's so close and point judge leon higginbotham in that case is decision recognized that this was in the nature of injunctive relief that it was that was at issue and so and so i think that that want to smoke and then the and then the rd circuit in the belly case also suggested that i didn't need to reach mandamus but that mandamus might be available as a remedy as well because of the nature of this if this is were right this is a prior restraint not commercial speech then where there's a real wrong there's got to be a remedy but if you're wrong and it's not a prior history what if what if we didn't see your constitutional cl you have any other way to win absolutely if the court doesn't agree that it's a prior restraint that our case is premised on the st amendment this is the st amendment i mean i wouldn't think we have any other way to win if you don't agree that this violates the st amendment that's the issue in the case well what if we said it's commercial speech and come under commercial speech doctoring prior restraint rules don't ordinarily apply you can have a prior history you're still  that's afforded to noncommercial speech if it's all commercial speech then it still only can be regulated for subject to reasonable regulate regulation for you know if it was misleading or was on truthful  and but there's no tradition for courts to regulate speech with nonpartizan as the point i would just make and so even if it's even if it is commercial speech there's still no basis for the district court to  to to ban it altogether or to regulate it because this is not to this is simply not a function that courts should can exercise and can and it's in other words if it was if it was commercial speech or we're talking about as advertising for you know pick a pharmaceutical product then that can be we can look at traditionally what's the state's interest or the government's interest in regulating pharmaceutical products and one of the dangers we have to prevent what kind of advertising we want to have but there's just  tradition of courts exercising in that kind of weighing consideration or the specter that the speech of litigants to non litigants and that in for that reason it seems like a fairly straightforward case of jordan's point though is that it's not straightforward that they're litigants because they are not the people directly calling the shots but they are the shear owners of one side and subject to i suppose you could even characterize it as a form of blackmail so it's a little different from speaking to some which completely unrelated if if  marshall this court the bailiff of this court throws me in prison for doing something intemperate infront of the court i can certainly i would certainly want to direct my communications to maybe the public maybe this court because there are the people who can get the bailiff to let me out of that yeah in this in this case the person who's comparing these action against my client is bankrupt hope these are not closely held this is black rock and fidelity are not closely held so i think i have a hard time understanding how they could be so close that in fact these people are incredibly hard to persuade it seems quite unlikely that my client would be able to persuade them and if he did he would have a heck of an argument and he would have won the in the marketplace of ideas and that's why this exactly why this presents a st amendment question you made the free stage exchange for ideas argument in your reply brief but but this doesn't really feel like the marketplace of ideas is feels like the marketplace of the market you're here trying to get the market price down and that's their complaint but we've got your argument i think unless  law yeah well that puts you at odds with your colleague here who says that this is a st amendment case and as a st amendment case we have a special obligation when we review and in fact to  and if the court finds that the findings and the application up law were proper and that it was not clearly erroneous or contrary to law then i believe he orders views discretion review to an issue that the factual findings are another matter but the remainder of it how can we play abuse of discretion or review to what your friend on the other side says  classic issue of is this commercial speech or not how do we apply intermediate scrutiny or strict scrutiny i don't understand why we're not reviewing at   would you answer please the question that i was putting to your colleague here at the very store which is what what is the reluctance of the parties baff to go back to the magistrate judge and say bank of hope is dropped its claims it's a different case and it was when you entered the order please take a look at this rash is the bank also like mr harvey and me it which he specifically indicated that if you order were lifted that the appellant intends to continue this same communication to the institutional shareholders now and at this juncture the institutional not claims in excess of a one million dollars by you but a claim by him for fifty four thousand dollars would you agree that that's not a substantially different case than it was when this order was put in place well i certainly think there's been a factual development in this case your honor i don't know that the sole remaining counterclaim of this appellant against the bank could be described as a fifty four thousand dollars claim but how would you describe it he said he had fifty four thousand dollars in the bank and you took it and wouldn't give it back to him because you said it was some kind of an offset against the money he owed you and now you say doesn't owe you anything and he still wants his money back that's what it looks like to us like a person like me stand off the side looks like a fifty four thousand dollars claim how do you describe it you know i think that would be a question for mr harvey to answer all i know is that they have a counter claim against the bank it's based on the fact that the bank placed an administrative hold on t the the type of damages those seeking and the approximate amount but it's i can tell you that it's well in excess of fifty four thousand so you made some reference to the need to defer to factual findings but when i magistrate judges report recommendation the district court people see real factual findings supporting the need for this order what back on the record factual findings justify this prior restraint well i think the core of the factual magistrate judge's fact finding has to do with the letters themselves you're talking about over a two month period the a palin sent some forty the letter what are the facts that were found that that did this it was necessary to respond to those letters by entering this prior restraint while your hon can't say that would be an answer for the for the prosecutor's themselves but what i can say is the letters speak for themselves and without quoting the letters the letters essentially the rectitude the president and c e o of the b judges report recommendation or district court's order found that those letters necessitated a response of a of a of a restraining against mr you continuing to send these you out of the magi did what those letters contained the fact that it was an attempt to coerce a settlement with the bank excuse me we're looking at the initial and then the later measured report what do you say in here and tell me which one are you referring to that order and the magistrate judge i'll start again independent use letters to plaintiff's board of directors employees defendant is threatening to contact the shareholders on a weekly basis in order to influence the plaintiffs to settle the case communicating with the shareholders on a weekly basis in order to influence settlement with the parties is a clear attempt to obtain a strategic advantage there is no place for this tactic under the federal rules of civil procedure so we don't have any findings here about anything that amounts to blackmail or anything like that we find an effort to obtain a strategic advantage that i don't see anything that says the trial will be prejudiced i don't see anything about with this is being if i see this strategic advantage and then the judge is offended even though there's not a particular rule that it violates and he finds it's commercial and he doesn't like a strategic advantage i don't see blackmail so i think you may be overstating what supports the sort where you go on to the magistrate judge explained in detail the nature of the communication or the the contents of the letters he then went on to emphasize the importance of this record in regulating regulating the conduct of the parties are there painting at all there's actual findings apart from that in the magistrates or the district courts order us is letters to shareholders right they've disclaimed any interest in further contact mr are you writing to your clients corporate representatives right we're only five you say they're only appealing the order insofar as it restricts communications with bank hope shareholders yes your honor the appellant has indicated in their submission that they are limiting  issue and his appeal to his letters to the institutional shareholders but i submit to you that what this what the magistrate judge decided was about this and hire letter campaign persuasively exactly so why isn't that all by itself something that's different enough that the party should be back in front of a magistrate judge and having what i hear i hear mr  harvey saying well we're going to you know we want to keep writing to the shareholders and you saying what we don't want them to write to the shareholders but maybe the magistrate judge having looked before at a whole letter writing campaign as you put it but now looking at something different that is an effort to contact shareholders and not other people you know not not the bank not its officers not its directors might say well this is different and we back to him and seek some type of parameters as to what type of communication he couldn't gauge in that would be permissible what we're reviewing is the district court's order in the district court didn't have any qualifying language like that in but i would submit you out of that the underlying order that we are reviewing is the magistrate judge's order that's the operative word or and that orders specifically states that it's being used to pending further order from the court if you want  to move on to something a little different which is if this if we apply per st doctor and you have you have to show this is the least restrictive means to further a compelling interest even if we apply commercial speech intermediate scrutiny you have to show some kind of tailoring in light of or is there any consideration of alternatives here i mean you know there are ways to insulate jurors insulate witnesses you know protect prevent certain kinds of on lawful threats the courts below didn't consider any of that did it no they did not you know on the then it is not automatically require reversal they didn't consider alternatives no you aren't and as we speak it is intermediate scrutiny right well i guess f s k right your best case intermediate scrutiny intermediate scrutiny says that you have to have a an interest that substantial and it has to some that substantial interest has to be directly  advanced and no more extensive than necessary to serve that interest that's the test isn't it yes it is and i believe it or anywhere where the where the magistrate judge articulates that test applies that test that justifies what was imposed by way of restriction based on that test while we would submit that the order is those comply with those requirements in that first of all what he  i agree your honor he did not but again i believe that this was a thoughtful careful decision based on this basic facts before him i e the letters and the contents of the letters and this letter campaign understand he want us to focus on this case but we have to worry about what happens three cases down the road what a new war theory what kind of speech would not be commercial let me give you a hypo let's imagine history writes a book about his experiences litigation he complains about how he's being treated about the abuses of big corporate america he sends a signed copy of the book to each institutional shareholder could that be barred would that be commercial speech and therefore subject to the intermediate scrutiny and would it survive that well st of all i think you would have to look at the timing of that publication of that book as he is during litigation before the litigation is settled well if he's doing the litigation then certainly i don't believe so you are why not because there are many methods of communication and the palin could have engaged it he could have gone to social media to explain his to air his grievances to say that he was being falsely accused by the bank and that he's been sued by the right back here you'd be saying he's trying to bring pressure to bear on the shareholders the shareholders of facebook friends they're getting his twitter feed he's making a bigger deal out of it broadcasting it publicly rather than just sending these private letters here you would be making the same argument if you went to social media to do this no you're not if you want to go to the press now that if you look at the magistrate judge's order it's limited it doesn't apply to members of the press poem threaten to go to the members of the press with this letter which contained false and misleading information which contained internal confidential bank documents which by the way he released a violation that's not in front of us right he's conceded that point it's that's so you you should stick with the hypothetical that's that's put to you then i take it that you said the the court couldn't be on the publication of the book couldn't be and it's being could it could it be in the book then being sent to each shareholder with a note saying hey read this part that says what the people of bank of hope are you are i think it would depend on the context contents of the book and whether and of hope decided to challenge any contents of that book that can't be can't be independency if it came to pen down whether you decide to challenge it or not write it i mean the fact that you don't like it or you think it's wrong doesn't doesn't deal with the question of whether this is commercial speech or whether this is a mixed speech that your your reaction or response is is that relevant i don't think the oid can prevent him from publishing the book but i think that the court would have be the authority to regulate the conduct and examine the to do that but there's a more fundamental question here which is timing the judge judge dixon st impose the restriction on rules speech and may the th of two thousand and seventeen that was that was over two years ago and then ask magistrate judge and have this sort of lifted my client's st amendment rights would be a victory free to exercise them i just don't know that actually backs what's going to happen here and we got all the way to this point and it's as i said a considerable amount of time that's understood but you know i put it to you that you never get any answer if you don't ask so you know a lot of a lot of ink might have been spear but we are where we are we a final order you've heard your opponents say it's not final they can go back at any time and that's something we're going to have to wrestle with you can always move reconsider court's order but you get a dirty look at some point and you've never gone back at some point seems like perhaps something further down the road but what we did we did we did exactly the district court to i mean so it's not like we didn't go through a very serious process and along those lines i would like to and i think it's worth noting that that i'm we made a record i made a record that i didn't this was not part of the law firm litigation program was to start these communications this was a client decision as i told that magistrate judge i neither encouraged it nor discouraged  view it's not my my job to tell clients what they can't say when they really want to say it it's their business and so when we look at it from day to day you vetted the letters you reviewed the letters your you know now i'm not sure that here there is a legal matter but their assertion seems to be this is fully council behavior not true i made that record before the district court and that and that in the trap in the for the magistrate judge  is that i did not that's not the case i had told the client that i wasn't going to this was his his program i was not i was new going to my exact words never going to encourage or discourage him because i don't see it as my job for exactly the reason i just did  and yet i didn't see it that it had any benefit to what i'm hired to do as a lawyer it's not part of the program typically it just didn't seem to make any sense to me and i think that brings us to a fundamental point which is how we view this case do we look at it from the bank side and does the court look at it from the bank side and say well banks been kind of treated unfairly here goes it look at it from side it well you know rule is you know got a good point here has been there are these allegations against been proved it's a pretty serious matter in a filing with the district court they noted that they believe the claim still has merit so that the controversy between the bank and mr roux about whether this claim is true or not goes on and on and the court magistrate judges thinking process based on what we that you are abusing the process c s that are supposed to orderly decide who's right off that buy gold by bringing economic pressure to bear and threatening the market value of the bank you're not seeking a fair adjudication of the you're seeking to unfairly effect the adjudication of this of the dispute that's and that even if you'll call this a sanction this is in the nature of the court trying to control the behavior of litigants so that there can be a fair process that you know i probably didn't do justice but i take that to be their pitch any circumstance under which a magistrate judge could look at the behavior billet again in communicating with a non party but nevertheless a party who can control or influence a party or the position you've got that is if you're out in the marketplace of ideas and you could say whatever you want to say in in an effort to bring pressure to bear on a party to do something different rather than pursue a legal remedy well i suppose i can imagine a certain area where a party threatens ux a contract or a supplier of a company and threatens that supplier side that says that tell the company i'm going to go to your supplier and i'm going to get that supplier to cut you off and that's going to end grievous harm and i'm not sure in that circumstance whether the court would have the power under the prior restraint doctrine to adjudicate that claim in advance and we are far far factual