good morning your honour's a fisa court i'm david force representing the plaintiff appellant in this case and it seems to me based upon not only the briefs but  the the descriptions of the holdings in the cases that i recently submitted a supplemental of already we kind of had two ships passing in the night here maybe you know advertently and maybe not but what appears to be the dependence position about political content regulation is that if it doesn't specify the subject matter of the proscribed speech then any restrictions on what can be said about anything are not content regulation reason i submitted the taker case is obviously a very different legal and factual context on this one but i believe it shows what the fundamental issue is in looking at a content regulation and that is is one side favored and ones i just pay for it's kind of an equal protection analysis of ideas slanderous as limiting factors implicitly favor one side over the other and therefore constitute in and of itself viewpoint discrimination that is correct because what we're talking about any case that is held that those three words are viewpoint discrimination the issue i think the reason shaker i think is important because it shows you that by ignoring other speech you get a viewpoint discrimination in shaker that that it's a crime for a citizen to make false defamatory statements about a police officer and this court looked at that and said but the reverse of the coin is it's not a crime or punishable in any way for a police officer to make false and defamatory statements about a citizen and therefore it is a viewpoint content discrimination what happened in this case in shaker there's another factor i think that's important to this case and that is the way this court looked at legislative history to find out what was really going on there and whether it was really intended to be viewpoint discrimination if you look at the history of this resolution in order you can't have much doubt about that initially the board of commissioners told these two individuals that they were not going to be allowed to speak and any board meetings anymore period because the board didn't like what they had to say then they went to then they got legal advice which was you can't really say that just these two people can't speak so what you need to do is come up with some way that you prohibit what say and that's what they did at the commissioners actually saying this is whether you utilize the newspaper articles we believe are competent evidence knowing provision in this regulation in order that restricts that to anything that disrupts anything and we know what the board met by abuse and in fact it's a knowledge by the board in its br they called and by then was found by the magistrate judge in his fine they called the members of the board incompetent stubborn and liars the members of the board down that  abusive and slanderous and therefore it was the kind of speech they intended and set out this read if you this regulation to prohibit there is no question about that there ambiguity in the legislative history this regulation was intended to stop two people from criticizing these board members and their staff about specific political issues in class  county in the brief in the red brief the the defendant utilizes as an example of the kind of speech that can be pros statement by mr two saying that the that ms reynolds the county council must have gotten her law degree from a cracker jack box well that's considered abusive by reynolds and it's considered abusive and i guess slanderous it is pure political speech about a matter of public concern and simply by saying you can't speak in public about the politics of class the county if the chair may consider your speech  be profane abusive or slanderous is the most basic kind of prior restraint remember you know order to speak at all each person must sign with a signature they won't allow you to just write your name a card that says you give your consent to the chair to silence you if he affirmed in that case your honor rules that we don't contest in this we don't say that you that the board cannot limit speech or speakers to three minutes we don't say prohibit can't prohibit disruption we don't say the board can't prohibit threatening or obscene speech we just say that for one person to get to decide what other people can talk about in public meetings in class of county based on his view as the target of that speech that's the beauty of it is a restraint on that's right what's the difference well obscene speech according the supreme court is not protected by the first amendment to begin with threatening speech very often wouldn't be and in oregon if it's if it's a direct threat of harm to an individual it's criminal there's no doubt there's no doubt that the board can prohibit things that are already prohibited in it's public meetings just as they're prohibited everywhere else i mean you could not walk up to one of the commissioners on the streets of astoria and threaten them either but it's really what's the problem then with an ordinance that simply according to you states the obvious and cracks the existing law and says you can't because it doesn't it is not limited to obscene and threatening speech and it's not intended to let alone limited to just ruction of the meetings nobody ever says these people disrupted a meeting nobody ever said they spoke more time than they were allowed to they just didn't like the content of what they had to say and it's the it's the  that means that it was critical that's all it means in that context and the chair by this court this regulation has absolute unfettered discretion can't even be challenged by the other members of the board do you decide whether any speech is abusive it sounds to me like the challenge you're making isn't as applied challenge then you don't have a problem with a regulation that prohibits the things that are listed in this ordinance you're just saying that it's not being applied well that's not that's not the case your honor i mean there isn't as applied challenge i don't think it's an as applied challenge when you look at whether a regulation gives unfettered discretion to determine the content of speech i think it's a facial challenge ok and i also think it's a facial challenge when you say that and this is what white said expressively white said if the regulations were merely to limit the kinds of things people could talk about at those meetings it would be unconstitutional but it just causes disruption there is no contention there's no mention of that word or anything like it in this regulation and there is nothing in this record to assert that these people ever did that they they went along with the regulations up to the point where they were told they couldn't talk about certain things and that's where they brought this and how so i'm looking at the public comment sign in cars and this is what it says rules for public comment was a whole bunch of rules one hears of the one that i'd like your comment on it says no comment childproof contain profane obscene abusive threatening or slanderous conduct you seem to suggest that some of those terms are ok but others are not yes yes it's abusive speech in the political speech that is critical enough of the political officer that he's going to consider it abusive is not illegal in this country neither is profane speech neither is slanderous speech in a criminal sense i mean if you get slandered then you have a right to a civil remedy but you can't prohibit the slander before it occurs which is what this regulation expressly intends to do and then  i'm page eight of the blue brief your honor is the registration requirement says a citizen desiring to make public comments must fill out a public comment card at the beginning of the formal session and submit the card to the four secretary the end for mation on the card must include the citizens name address and subject and indicate the citizen is willing to follow this policy in speaking and then paragraph to other policy every possible yes it is i'm sorry my suggestion to you is that you might want to look at this in context wouldn't a reasonable citizen construe that passage that i just read to you as the common ordinary decorum that one should expect in a public meeting your honor i don't think that we limit speech to i mean there's no law that says you have to keep a civil tongue in your head when you talk politics in this country and i think that in that  context of that rule that every citizen will understand is you can't say anything in this meeting that the chairman doesn't want you to say art isn't there a difference however between someone  saying whatever this person wants to say and whatever a loud voice or or slanderous assertion he wants to make across the street from this courthouse in pioneer courthouse square versus participating in a meeting in a limited public forum of a local government doing its regular business there's no significant difference between the two yet but the s supreme court has held over and over and over again that when any public body creates a public forum for public comment then the content of what is stated by the press people who participate in that public forum cannot be limited any more than it could be in pioneer square and you know if it's facially and this is something that judge nelson has brought a couple of times in the air force is i do not see how this case is not on all fours with the kind of case and the kind cases the law of this circuit do and i do not hear mr force stating that that case was wrongly decided or asking this panel to overrule that case and public forum what this court said and kinds why has that become part and drawing upon white but but to a certain extent broadening the holding in white was that the structure aspect of a public or like a government local governing board meeting is  the rules of public for a nonpublic for a limited public forum designated public or don't really work and what what th open you get to say anything you want whenever you want however you want to say it doesn't fit and there partially because what is going on at those meetings they are being conducted government is this is being conducted at those meetings and so they need to be run efficiently and in a certain way but also to allow for public participation but in a structured nondestructive way and both white and kind cases indicated that not only could threatening language or obscene language or abusive language be disruptive so could irrelevant language or repetition and so yes it goes to contact to a certain extent but what this court has that in those cases is in this situation as long as it is viewpoint neutral and as long as the rules are reasonable that's all they have and that's what this rule one of your comment on the crackerbox comment i disagree with mr horse's characterization of why those comments flavor of what comments were being given at these meetings and how some of those comments may have indeed raise concerns and  specific you must have gotten your law degree out of a cracker jack after you get your law degree out of a cracker jack box i would as an attorney i would probably consider that to be abusive but also  it is argumentative irrelevant not it could be destructive to the efficient government proceedings it's the kind of comment that under white kind this court i understand to have said is something that could be considered disruptive and because of that could be proscribe unkind well i find it interesting that council the plaintiffs doesn't seem to have a problem with that one person deciding that something is obscene or threatening but does have a problem with that one person deciding if it's abusive there is someone that needs to say that is obscene and i believe there's a fairly innocent what about i know it when i see it that's right yes but pretty good in the power of the chair of the board to individually control what is abusive or not well i believe that the reference in the rule as to the chair deciding whether something is abusive threatening o acknowledges that the chair of the board is the person who is running the meeting and is therefore the person that would be having to make any decisions about anything that th would argue that there is not unfettered discretion in deciding whether something is abusive slanderous profane obscene or threatening there is discretion but the fact of the matter is that most us the ordinary citizens going to these kinds of meetings do have an idea of what is abusive profane slanders obscene or threatening and so there than what it approved in kind or white that and mr forrest has already agreed that he has no problem with the obscene or threatening part if this or were to decide that the rule the purpose of which is to have a safe and efficient comment period and be construed more narrowly by just saying only obscene and threatening language shall be pro then it can do so but that the issue still is the chairperson is deciding that this recourse is already said you don't have a problem with the chairperson deciding now so i really i don't see why not having a problem rules it is in and threatening it is a possibility for the same reason it was possible in white in that although this role does not have the specific language in white about disruptive language what it does say in it purpose of the rules for a state and efficient comment period and i would suggest that it can be inferred from that that the exclusion or prescription of  one of the chief concerns that the county has about the plaintiff's characterization of the rule is the plaintiffs keep referring to it prescribes language that is critical of the citizen reading those words would assume that they're saying behave yourselves be polite not don't criticize us and it doesn't government yes but also if mr force and i were both at the meeting and i was speaking and i said mr forrest must have gotten his law degree from a cracker jack box that would be critical and abusive of mr force and under this rule i'd be proscribed it's not critical of the government but isn't there a difference between a little sister and a member of the council i mean if you're criticising a member of the council as opposed to a government and he said no it's not critical of the government it's just abusive language or of that nature and i was just trying to say could also be critical of the government that particular abusive comment was critical of a government employee but it wasn't the fact that it was critical of the government employee that made it prescriptive it was the fact that it was abusive george burns asked whether this was an as applied challenge or a facial challenge and mr force indicated that the arguments he was making were a facial challenge he mentioned that there was an a as to their claim for damages that they that their particular first and then their right were subject to repression by this rule they have made no argument in their plaintiff's claims and all of his count and had argued that even if that there was no evidence that they had actually then repressed that they had been denied the opportunity to speak plaintiffs have not on appeal have not made a specific argument in support of an argument that damages and to i guess to better understand how how it's a separate claim is it was possible have the court included  well the district court could have concluded that the regulation the rule itself is constitutional on its face but it nevertheless was applied to this set of plaintiffs in an unconstitutional manner and in that case they would have been able to recover damages as an as a challenge but it's a separate question and therefore on appeal that's also a separate question the as applied in response to judge burns as a question about whether this was an as applied challenge or a facial challenge counsel indicated that the arguments that he was making here were to the facial that he was based on its face it's unconstitutional but he made a comment that he didn't flesh out what i understood him to be saying to judge her that they had a separate as applied claim which because we have argued that it was comment on because we haven't even talked about the search issue on the search are the counties position is that there was no fourth amendment violation because they had no subjective or objective reasonable expectation of privacy they brought this bad to the council meeting with the intention of distributing its contents if they announced their intention of distributing in its contents and so they of privacy in iraq yes because eventually somebody is going to hope that maybe true i don't have an expectation of privacy but i have an expectation of privacy of what's in my wallet standing here until i open it up and take out a few bucks to buy a cup of coffee what they told the bag would be searched if they were going to go into the meeting room with the bank what they told us in advance you know the deputy came out said that mr patrick ordered him to search the bag and had told him that they had consented we we know that it is true that that commissioner patrick ordered the deputy dysart back it is not true that anybody had consented to that and absolutely nobody else before or since attending these meetings is subject to the search of any object they bring in do they not consent by going into the meeting after the search after the search if you can't consent after search you are under for that they have the choice to not have the clear choice to either be searched or attend the meeting that's the can case is an example of what the plaintiffs in this case are not asking you mr kant said you can't tell me i can only speak for a certain period of time you can't tell me i can only speak at certain parts of the meeting and you can't tell me that i can only speak about matters that are germane to the business of the rest control of this court found that his right of speech was not so that those limitations could not be allowed under california law we don't oregon does not have an equivalent of the california statutes that require every kind of local public body to provide an opportunity for public s