mean yeah we're not splitting time that's correct ok see i r s ads promoting its investigative journalism were rejected pursuant to an arbitrary exercise of discretion as in minnesota voters alliance versus manthey septa's probations on political and issue ads offer no sensible basis for distinguishing what may come in from what might stay out let me ask you this is there some formulation of a policy that would permit septa to decline to run the verbs certainly on a there are any number of ways that septa could reserve its ad space for ads or certain speakers that do not include the center for investigative reporting for example it could decide that it vendors at septa's two hundred dollars plus stations that then center c i r would have no claim to advertise there but it has not closed the forum in this manner nor has that so probably restricted the types of issues that advertisers can advertise about that it has effectively restricted the breadth of access in a way that would cause the forum so the ad space remains a designated public forum but in any event even if it were a non public forum there were strictures here are not reasonable because without objective workable standards to guide septa's decision making the determination of what is political or an issue centrally random we've seen many inconsistent outcomes here for example housing discrimination is illegal is political according to septa but the landlords are required to insure your home and safe from lead is not applied to be a sperm donor it's political but surrender to law enforcement is not philadelphia student support cleaner water is political but the clean air council's ad urging people to recycle and save water is not education isn't a problem it's a solution is a political slogan septa says but warning about fake news on facebook is not unions welcoming the democratic national convention in philadelphia is political but corporations welcoming the c is not the message unplanned pregnancy consider adoption is political but join the one million sign up for obamacare is not the district court ruling upholding the rejection of the i r s ad encompasses several legal errors each of which is an independent and sufficient grounds for reversal but i'd like to focus on how the new restrictions as added by the district court are still incapable of reasoned application and thus unconstitutional in any forum  you have no problem with that the district court tried to take a hand to the policy your problem is merely the result of taking the him to the polls that's correct your  our argument that the district court exceeded its authority has to do with how it rewrote the standards not the fact that it revised the problem is that there is simply no basis in law or fact for leaving some undefined uses of the term political while striking one of them and with respect to subsection to be the district court when it took out the phrase matters of public debate it left in place a very different and much broader because they have ads from banks that say we don't discriminate was that that's that's correct your honor the point as the way that a and b were revised still the plain language of bam is unconstitutional on its face because it's unreasonable undermanned scheme and indeed if you if you look at all of the different definitions of political in manske read that the supreme court struck down as incapable of reason that occasioned they map up basically onto the revised pieces of the pieces of a and b even as revised i guess what i'm asking is as you as you think free free thought  on the one hand and minsky on the other it's not a free thought case because it doesn't easily with you know that viewpoint discrimination where it's clearly aimed reasonable application that is correct your honor yeah our argument is not that all bans on political speech inevitably play out and you point discriminatory ways which was the problem with the religious one of the problems with religious  consumption of be official applying the restrictions as an manthey septa's doesn't need to testify that he decides what is subject to debate and what is not by googling phrases related to an ad and then applying his experience in fifty six years of life schooling and legal practice and his knowledge from talking to other people seeing what they think getting their opinions so i read to be i couldn't help but think it's inevitable that your viewpoint would and this is why courts have long held that they were structures on speech that vast essentially unbridled discretion violate the st amendment because there's always that risk that they will be applied in viewpoint discriminatory ways and here certainly the lack of instead lead to inconsistent outcomes which raises the specter of arbitrary enforcement to use a phrase from the freethought decision i'm asking this question if if you moved the matters of public debate has been removed in the well be would still be with them credit advertisements in expressing or advocating an opinion position or viewpoint on economic religious historical or social issues and there's nothing in the record to help to find what what constitutes an economic religious historical or social issue and indeed septa define a social issue quite broadly as anything that involves society or the people in society or impacts society at large so i do not think that that would be capable of reasoned application either your honor in response to joe's greenlee's st question about how they could do it right you said they could limit t can advertise or a slightly different one they could just they could limit it to commercial advertisements only and they could do this not with all of their ad space but with just some part of the ad space for example just the inside of buses is now a closed forum for only commercial you know if your concern is a f b i which septa testified it was it's the the problem with septa's content based restrictions even assuming that we have a nonpublic forum which we do not and even assuming that they were workable which they are not is that they really only they are they do not broadly close the forum to all speech on public issues they really only target the ones that court where do you want us to draw on new regulation i mean it's only a new regulation that's really hard to get your honor and to look to the supreme court for guidance in minnesota voters alliance versus me ask the supreme court to not rewrite the political apparel banned for minnesota it simply said the way you have done this is unconstitutional there may be more constitutional ways to do it but you have to do that yoursel lawlessness like like vandalism which septa testified was a concern for violence or disruption of the transit system that would most likely be reasonable even in a nonpublic forum and perhaps would survive strict they keep inadvertently letting arabs through or you're saying the policy itself still isn't closed i think the policy as they interpret it only private section narrow pieces of speech that the form is still open to basically every topic under the sun so the clearest way to close a quorum is to identify particular speaker or particular subjects and exclude everything else such a clearly hasn't done that so then the question is is the breath of access we look at the back of access what or how they really left it open but for a few narrow kinds of things and on this record the plainly have accepted more than fairly uncontroversial now proposition that the government can reserve its limited property limited ad space for some kinds of ads without having to open it for all kinds of ads that's basically the definition of a nonpublic forum and that made sense on that record where shaker heights had very limited ad space we're talking about fifty five trolley cars in contrast to accept of thousands of vehicles and hundreds of stations and lehman court said that they specifically noted that shaker heights didn't want to jeopardize long term revenue from commercial ads by having to accept short term political campaign ads and so that was part of the rationale that certainly doesn't apply here except the has more than enough space for everyone and the history is quite different she had never in its twenty five year history accepted political campaign ads of the type at issue in l here except it has a long history of accepting ads much like c i ours and the record really undermines septa's argument that the type of speech at issue in c i s proposed ads is incompatible with its ad space because we have record evidence that for example sept deliberately entered into a contract to put news content on the digital displays inside of it buses so i don't have to possible we did your honor so after supper rejected the st version of psionics ad that i proposed and we there were there were many letters back and forth all of which were on the record there was not a lot of invitation but even after the deposition in this case when sept as designee testified about specific little elements of the design in some of the panels of the cia are revise those to admit those areas of concern and submitted a new version political and he still ran the ads and six of them were public service ads that would put code by the government which govern that speech two of them were run buses facebook you know he had for the cable company fusion one of them the d n c ad was something that welcomed and conventioneers and there was a union part of that that we did allow in and mr benedetti said we should have done that because that one conveyed  political message well as as as we have this discussion about political its own the context of reasonable application now i know that as you've been citing these examples they certainly seem like it was applied but the question is can you merely look at that term in the context of policy and say i know how this will be applied and with that in mind with that sort of discussing the subject of racism be permitted under the current on advertising standards would that be deemed political let's suppose a plan about racism what put yes broadway play about racism that would be about that hamilton would be an example if we got it's about politics but if an ad for the play hamilton were to be brought to us for the bus and that is a piece that depicted i use girl because i mean girl like seven year olds so nobody's whatever of a black girl a white girl and an asian american girl are holding hands back why does that matter if it's a if it's part of a commercial campaign what is benetton then since famous for ads like this and a benetton ad will show multi sixteen writing project but if they're trying to do is discern what they're trying to do to sell the new york times and say this is an example of the kind of content we run we would allow that so if it said this is how racism ends but it was the d n c you wouldn't run it but if it said this is how racism ends and it was joe greenaway you would write a book not not necessarily clear we would want to know something about would we put we try and do is figure out a green way not a we didn't grapple with that at the district court level but your honor lame and also deals with issue oriented ads and uses those words issue oriented and of course in economic issue layman's reference to gray areas means i'm going to be tough calls but i guess the question that arises in this context when you think about reasonable have location the question isn't whether you'll be making good decisions but the question is wh part of our landscape without anyone ever defining it comes up almost four thousand times in u s code not wanted to ever defined as a standalone item no court has ever to my knowledge to find the term political and when they say that they then say but your government so you're also constrained by the rule of reason and reasonableness as defined cookin now by the supreme court means arbitrary is very carefully dealt with with the notion of discretion and sect that uses that discretion as well as it can to achieve objectives that are reasonable  it seems that the way that b is constructed you'd have to think really hard to think of anything anywhere to couldn't fall d within that amp and if that's so that how do you advertising standards are fine and leave us alone to object c i r and continue making decisions based on this this definition interpretation of the statute and there were two dollars problems with the interpretation of the statute one problem was that the state of minnesota interpreted the statue the word political to mean political in the context of the issues at the polling place that day so that election judges had to be familiar with every single platform with every single candidate and then he said to make it worse they also include in political the groups that support those can could be nothing about the positions taken by those groups so you have to have a middle road tax of hundreds of issues this election judge they said that was an impossible standard why isn't the same true here when you have religious we take every ad we have a three step process will be drilled down we look at the ad we understand it and then we make the determination and it is it minutely rare that we turn something down now that's not that doesn't mean the forms o because the measure is not the two thousand seven hundred ad the denominator is the two thousand seven hundred ad that we except the denominator has been the number of ads that would fall arguably within the standards and then the layman says there are unique forms and in this unique form the rules are different and they're different because of the captive audience and the nature of the business being conducted and that supreme court standards and you answered by saying yeah but the math the court blast the use of the word political and greer and layman but i don't think you really answered my question about objective workable standards  associated few responses the layman court did not have to decide whether bans on undefined bans on political speech or issue ads were workable because that challenge was brought by someone who wanted to put up an electoral campaign ad which is why the st sentence of lehman describes the issue presented in that case as being about whether the transit authority was required to accept paid political advertising on behalf of a candidate for public office that's not what we have here in our argument is not that the word political has no definition it is that in man ski the supreme court said that various dictionary definitions of the term political were not sufficient to constrain government official discretion about what comes in and what comes out so there's no doubt that you can use the word political in a sentence and how people understand what you mean that is different from saying that the word on its own is enough to allow the government to censor speech it seems political and while allowing speech it deems nonpolitical in the standard of reasonableness is not rational basis review so the record does matter here and the difference between keeping say a mental rolodex of issues as was required by minnesota statute and an actual rolodex of issues doesn't matter it doesn't matter that septa has time to google and consider whether to accept an ad before it before it makes that decision because we're godless that that rolodex that those decisions about what is an issue and what is political are inevitably going to be informed by the world view of the person making that decision so it doesn't matter that they have more except to have more time to apply standards than the election judges in mansour for all of these