we're here to request that this court enter a state pending appeal of this case on the merits it's a narrow question about whether the district court had power to enjoying the new york civil liberties union which had respond that's one of a number of things that lead the court to find that there have been active concert and so just to take a few different things that your honor had mentioned we became aware during the level and about this c c r be responding to this perfectly legitimate request for public information the timing is only one of the things so is on the record as the  active concert is based on a number of things including from the very beginning as mr dunn has stated in his affidavit the nyclu has been actively involved in the oversight and related to c t officer the foyle request was responded to for eighty one the records of eighty one thousand police officers like no other the others were in a more limited in scope and it was in less than three business there are a number of things here in this record that led the court to find that there had been active concert and that finding was not clearly erroneous on this record and stands your honor and so if you may wait a minute tho made that finding before the if you read the papers the papers came in and the next day pointing out that they didn't know about the yours so she made the finding really under a be that ruling the that rule says you can't be an active concert or at least the case law under all says you can't be an active concert with if you don't even know about the order and they couldn't know about the order the distribution was made because it had and then her is not so active concert is to unlawfully release unsubstantiated and not non final allegations because it is why when i say that again can not be an active concert with a party subject to an order if you didn't know there was an order then you accept that proposition certainly under the contempt cases so if it's a violation of an order every case you can't be an active concert with someone if you don't even know there's an order it is not just past active concert though it's present act in concert in america just what you're still  question isn't it so you cannot be an active concert with someone for purposes of sixty five be unless you know about the order isn't that the law i think it's correct to honor that you cannot or aggregate so if that's the law isn't it also so that when this distribution of data happened the n y c l u didn't know about the order for the obvious reason it had yet been entered it when they requested the foil when they got the material never mind that if oil request when they actually got the material the order had been entered publish the allegations that would not otherwise be allowed to be published by the c c r b and the act of concer is to get to the point of publication and that is where the n y c o u and the response to a foil request we don't dispute that but not only in response to a quota request but they've got it before the the state court order with and her isn't that right that that is that's correct your honor there were there were discussions ongoing after the order has been in place and what what case possibly says that that you got material lawfully but you can later be enjoined from from the making it public most of the cases are about contempt so we don't have a case that's exactly on point your honor you have any case that's even close and i'm not i'm not aware of a case that's like ours for what why should this be out of the whole world be the st one to suddenly say a party that didn't know about an order and got the material lawfully shouldn't be able to make any use of it it won't that that the knowledge requirement is not is not necessarily this not necessary that the active concert the court found was that you had to know that you were aiding and abetting in those circumstances this is going on with that well that well as if that's your big case i didn't understand that was your main case or even one of them in that case did they get the material before the order was that her after i believe they got it after your honor but i would have to go back well then how does that possibly help you you this is a not usual scheme that goes from start to finish to do with the c c or b could not do and the been the reason why this case is special is because we have these officers whose rights will be irreparably harmed if this is re me one case and when i asked you about that you say oh no they got their material after the order so we're still looking for that case where they were violated sixty five b and got material before the order and you haven't given us one i'm not surprised because i don't think there is one i'll just say that the case on this area is generally about contempt cases and that's always after there's an order and that's we just have a different scenario here but there's plenty of law that says to be an active concert you must i'm alexandra prologue trials for the new york times and here with my colleague david mccraw it please the court i plan to address the st amendment prior restraint issues and then the n y c l u and the city will address the other issues in the case the unions have come before this court seeking an indefinite prior restraint on publication of newsworthy information about a topic of national importance that is plainly unconstitutional as the supreme court held nearly fifty years ago in the pentagon papers case any system of prior restraints comes bearing a heavy presumption against its constitutional bill that the prior restraints are promoted only where publication will surely result in direct this kind of information is routinely disclosed when when new york state repealed civil rights law fifty in june of this year it joined the majority of other states that already permit disclosure of law enforcement personnel records and there's th complaints involving four thousand officers both substantiated and unsubstantiated and again there's no indication that disclosure has caused any kind of harm let alone harm that is direct immediate and irreparable of the unsubstantiated and officers reputation and career is damaged set theory human that they make is not true well certainly not i think in every prior restraint ca once you have publication it's toothpaste out of the tube and yet the standard remains very high for imposing a prior restraint and i think the other point i would make is in the every providence journal case that we cite in our papers the st circuit there suggested that a privacy interest does not rise to the same level as the kinds of national security interests or th amendment interests that may american great protection is simply not of the same magnitude we have not found any case of holding a prior restraint issue to protect th amendment rights council i can appreciate the new york times and particularly interested in the st and then the issue that doesn't surprise me but i'm wondering do you really want this court opining on a constitutional issue when the rule sixty five the power of the court issue is sitting there ready to be decided the st amendment you do that regularly that's fine but once it comes down or what to do it seems to me frankly you take a risk with your own interests to order them the way you do whether we will rule against you on scores of cases but when they put you could always say to what court as on by having you to say but i'm getting a little resistance or if you could always say there is a prior restraint issue here but the court need not reach it if it finds the sixty five b argument erect you knew you could even support the sixty five the argument if you wanted to although the others have made a pretty good argument we certainly agree your honor that this in the morning molly backlund for the new york civil liberties union as your honor has recognized the union's cannot succeed on the merits and role sixty five d disposes of this issue it is a narrow exception to the rule that a court c and therefore this can and the court inquiry into the scope of all sixty five and so i'd like to turn to the questions about irreparable harm you claim of irreparable harm is a generalized claim about current hostility toward police officers it simply is not sufficient for certainly a prior restraint or even for a stay under the traditional stay factor and in fact the record is clear that the c c r b has produced numerous datasets officer histories in the weeks after the repeal section fifty a as my colleague from the new york times mentioned pro publica has published a significant part of the status that involving over four thousand officers which has led to numerous news articles but the unions do not point to any harm arising from these disclosures further the unions have not pointed to any incident in other states connected to this type of disclosure although many states regularly disclose this type of information and their claims reputational harm both highly speculative have been barred since july nd almost a full month from publishing this information about civilian complaints police misconduct the c r b investigations and y p to disciplinary practices during a time of great national and local debate over these very issues and as supreme court has found for much lesser delays this is an intolerable burden on the and why i feel use st amendment rights at a time when needs are the very issues of the day and moreover exact type of information that sheds light on a public officials of the workings of government that is a great public value and any further delay in publication greatly to serve the public  quickly please the timing of the request and the response to those who responded and provided all the records yes or are for the n y feel you it ever got anything that quickly i don't have that information before me your honor but what i can say is that the record here is very clear that this kind of alacrity was quite normal for the c c r be in the months after the repeal of section fifty a and of the start of the seventy request event do you know what this the city needs with the phrase substantiated but on proven allegations you know what that mean to the city on this but my understanding is that it means that the c r b has found some kind of cause to believe that the conduct as alleged right the complaint from the civilian did not bring this lawsuit according to their own complaint paragraph thirty six dollars they say that in four days later their gladio now to use the city's intention to release unsubstantiated complete records and having failed to do that they now want to put the ask this court to put them in the position as though they had and i want to do that by insinuating some wrongdoing on the part of the c c r b in the months following the repeal  responded to over fifty nearly identical types of mr history complaint will request and it did so on an extremely fast pace of recognizing the great sense of public urgency for transparency at this time and you did so many of these data sets faster than what we produce tonight until then not only that on june july th the c r b had a public board meeting open to the public where they declared that they were going to make the entire data set public's report online and the union still didn't sue they waited until these productions were finished and i'm going to lose them but they waited and waited and sat on their hands until finally six dollars days after that public board meeting they brought this lawsuit screaming foul that the c c r be had consistently been providing the public with the information that it was lawfully requesting an unlawful basis and so heard about this request of that same data set which made the production so very easy because the data set was already assembled for the board meeting and displayed for the public so all this year we needed to do was take that same data set  does that mean excel spreadsheet i was in the display you said it was displayed for the public i assume public attending the meeting was made otherwise publicly available not at that time no your honor that it was made public through i think there was a zoom we're in the southern district docket it's item number thirty one but in short the legal aid society sought me this may be further evidence that michael was not a special acting in concert they saw a display an opportunity to view the information is publicly now in the hands of many others other than nightly but this restraint seems to only apply this juncture tonight based on this insinuation by the union that this is your view that something wrong which which is incorrect and that's what we're here to correct i just i think as i see i am running out of time so let me just say that there was no wrongdoing on the part of the c r b i'm happy to answer any questions the court ha thank you so i just want to start with the repeal of fifty eight when fifty a was repealed that did not repeal all these other rights that are at issue in the last few pull out and that includes that there are collective bargaining rights that are implicated that are set to be arbitrated by the unions that includes due process rights privacy rights mean that the c r b itself had recognized that the is closer unsubstantiated founded allegations would would be an unwarranted invasion of privacy for the officers prior to the repeal of fifty a having nothing to do with fifty or so all those claims are claims that you may be able to establish against a part issue which i think we've been focusing on is why you think you have i think told us why you think that what you are correct in thinking that you can get a federal court to enjoin a nonparty on  theory of concerted action with respect to an order of which they had no knowledge at the time they got the data so the fact that you have plans that you're prepared to prove against a party really doesn't answer that threshold july th to us was actually very shocking got to us and the court and no other defendant in this case has been responding to foil requests like this because every other defendant in this case recognizes that these are tough issues that may  questions this is just a different case because we're not talking about an order where we have contempt for talking about active participation that continues to this day to violate our client's rights you have you have when you have a t r o where required to give notice before the lawsuit is filed we were in these discussions with the court counsel with the notice that we were prior to provide during the time that this foil request was responded to and c c r be is basically using the new york civil liberties union to violate rights that it cannot violate and is trying to avoid that it was trying to avoid the forthcoming order you meant by use them they use them as a recipient something they ask for that is the use there they're using them to publish what they cannot lawfully publish why can't they lawfully publishing the c r b can't lawfully publish it because it would agreement someone it does there are provisions in the collective bargaining agreement that give members of the n y p d certain rights to request that exonerated or unfounded allegations are removed from their personnel  revealed to us that has it's been described to us that the c c r b did not use all of those as discretionary which they certainly are written that way in the foyle law and in in its discretion got that it did not need to apply privacy x engines under the circumstances despite that everyone who's looked at this and even the sponsors who repealed it thought that that was the way to protect the officers and even if it is discretionary i just don't want to rely on that like can about face arbitrarily and capriciously from its regular policies whereby it had previously cared about officer privacy under these circumstances it's just putting out the family story information about  between the c c r b n and i c l you know but whether or not they were an innocent bystander they're basically being used by the c c r beats you do what it can not do and under the circumstances we what we would like to do and just tell us where to send it we'll give it to you is that what you're suggesting i mean look i think it was more nuanced than that your honor but something along the red it well what the issue is whether he wants to or not i'm with you if you any basis to think anything remotely like that happened doing presentations of what it would be as forthcoming database and then it was alerted by the p b s i which is one of her clients that this would be unlawful for them to make such disclosures then we started meeting that we have this database no one else as far as we know asked for the entire database but my c l u did and we have no idea whether c c r be said to them hate you know what there's a law suit coming down the pike you might want to get th reserve decision