so sense the district court's grant of a preliminary injunction in this case this court has issued its opinion and center for competitive politics which makes clear in a unanimous opinion that the disclosure requirement at facially constitutional doesn't in and of itself place an actual burden on first amendment rights and is substantially related to the state's compelling interest in forcing the law and protecting the public from charitable fraud and prosperity has not done so successfully and has not actually provided cognizable evidence of any first amendment burden or harm arising from this particular disclosure requirement that evidentiary standard i extremely difficult to meet it is set out in cases such as and double a c p b and socialist workers party the foundation has not even come close to establishing that level of evidence and because it hasn't this case is really not meaningfully distinguishable from the night circuits case in center for competitive politics and is controlled by it now the district court obviously did not have the benefit of this court holding its center for competitive politics when  joined the attorney general from demanding a copy of exact same donor information that the foundation already has on file with the i r s but it did have the benefit of all the precedents of long standing preceden from the supreme court and this court on which center for competitive politics is based let's assume for purposes of your limited time and for purposes of getting to an issue with these troubles me and that's the public disclosure let's assume that there's enough of a showing that this particular charity its membership you've known as subject to harassment so that public disclosure of the names of the donors could create a chilling effect on membership and arguably on speech rights attorney general is representing to those that there is no risk of public disclosure because this is information collected for purposes of enforcing the charitable status statute there's a proposed regulation  words what does the regulation do to assure that there won't be public disclosure and where is it in the process of being adopted  working backwards my understanding judge fisher is that that regulation should be published for notice and comment i think starting on december eleventh that regulation will simply codified what has always been true which is that the registry has a policy of keeping information confidential that the regulation what is the status is going to be published and notice and comment sorry and then what happens right will then hopefully the regulation becomes it goes through its process and becomes adopted but all that regulation will do is to cause i gonna tell me what to do i just want to know where it stands after notice and comment how long do you anticipate it will take before it becomes effective i don't know in terms of  i don't i think it's usually a matter of months your honor but i'm happy to look into the enterprise the court of it based on actual information so without that regulation being inactive what you have is the policy of the  not to publicly disclose the information right correct no rule or regulation that he can point to there are background rules in the civil code about how people's personal information can be treated by law enforcement but you're correct it is in fact just the a g s policy however it's been the a g s policy over the course of the last three and a regime change policy so given that it's not a rule or a regulation and what assures the court that there's no risk of public disclosure well the fact that there is this policy your honor the fact that it is there is a movement towards it being codified and of course a g s can change their mind but no one has and there's no indication that they will and this court has rejected that argument in center for competitive politics because that of course would just be speculative future injury and wouldn't be the basis for granting a preliminary injunction it is not  hypothetical but it would be an extraordinary assumption and of actually unfounded one that the foundation has actually suggested the level of harm from even public disclosure that would get it in as a an athame for successful as applied well your honor the dream partner coming right supreme court yes we are in the supreme court has held that the showing that one has to make for a preliminary injunction is greater than the showing one has to make to prevail on summary judgment  yes of course it's an extraordinary remedy and on the basis of evidence that frankly does not rise to the type of systemic brutal long standing harm against a vulnerable organization that the government is unwilling or unable to control we're nowhere close to that we have basically some anecdotal evidence of threats mostly arising from the founders of this foundation the koch brothers very public presen and very public events held by the foundation that has nothing to do with whether this type of disclosure requirements is actually going to lead to harm finally just to say even in that hypothetical if it were public what the appropriate remedy would be then is what this court issued and dull to the second all on remand which would be to say this information cannot be made public it can only be given to the attorney general to use for law enforcement purposes which is what we have here and says if a record is exempt from disclosure under federal or state law then an agency return retains discretion to disclose a vent to a c p r a requ t this disclosure of a record is prohibited by law an agency cannot disclose it so again there's no prohibition expand ye correct so it's a matter of policy that the a g is relying on not things that would foreclose a third party group coming in and trying to get access to the state directly by the organization well but for purposes of the of the public record act if something is confidential under federal law which this is regardless of who is given to it is not going to be disclosed we do not disclose we have never disclosed it nor do we take the position that section twelve five ninety requires us to disclose it and i am unaware of any action on that has ever been brought under that section demanding that we disclose it and it would be our position that subject to our considerable discussion we are not giving out of that information we do not give out that information i see that i'm well into my rebuttal time and i am hoping that the court will indulge me and at least case to hiram not ok so i had to sit down for that one thank you thank you your honor smith please the court let me just say at the outset that in our view the district court acted well within its discretion in issuing the flamin injunction and it did which is narrow as applied limited to this specific foundation that did make a prime the facia case as to retaliate the harassment the chill that it and its contributors would face well let's talk about the breadth of the preliminary injunction that was issued citing the site the public disclosure what's the what's the burden on first amendment rights with regard to the collection of information the confidential disclosure to the well let me take that in two steps i could do in the first is that we do fear harassment retaliation from california officials themselves we point in the declaration that was before the district court to statements that the california basically the fair political practices commission singled out the koch brothers without any evidence whatsoever and accused them in their dark money network of being involved in violations that they were not involved in so we were fearful of what the state itself might do with it but more importantly judge when there was no suggestion from the attorney general below that there should be a different injunction there was not that argument in the alternative that the injunction to simply say the information must be treated as confidential i think that's only so it's only sound that the injunction came out the way that it did because we've heard repeatedly from the attorney general including today that there is a policy of confidentiality to use my phone for the other side's words they've never disclosed schedule b s your honour's you have been for you in your doctor it was in opposition to the attorney general's belated request for stay we filed deposition transcripts excerpts from those as recently as just a few weeks ago where the thirty six witness for the california attorney general testified acknowledged that more than fourteen hundred instances and counting in which schedule b s that are supposedly confidential under the policy were publicly posted on the web site with no notification to the entities involved that that it happened repeatedly within the a g s office there's never been any consequence for that any any sanction any remediation and your honor i think it would be a real problem to have an injunction that relies upon the a g to maintain confidentiality just as the a g has said he's been doing for years when in fact the reality is quite different and you don't have a system in place or intent to say this regulation goes through and it only goes to the agencies because there's too much of a risk of leakage out of the yes that's correct assuming that everything else stays constant because you need a regime of confidentiality that is to say you need protocols you need the prospect of sanctions under federal law there are criminal penalties as well as civil penalties for any violation of confidentiality there are real there there aren't forstmann efforts undertaken when you have scandals as you had with the i r s word and then congressional investigations result there the possibility of criminal penalties and prosecutions there is nothing like that in question if the regulation were to be implemented and knocked at such that there's probation against public disclosure what there still be similar concerns and  i take it you're saying yes because there's no enforcement mechanism in place that that's right and i think to put a simple point on it there needs to be meaningful assurance of confidentiality and i think under the existing framework there is  not and even as to the regulation i would note we have a trial date set for february late february that's our trial date we're serious about it i believe the district court is and i know the attorney general is as well so this will all be resolved and you will have i believe a final judgment from the district court before that confidentiality regulation even could become an actual regulation in force could have force of law within the meaning that you meant judge reinhart in the in the dolittle where the fact that there was a policy of need to know was not to be equated with something having the force of law and what's clear as can be is when the district court granted this preliminary injunction and today and as of the time of trial this supposed confidentiality policy will not have forcible so i think the rest of what we're talking about is academic but i want to be candid with the court that i don't think our concerns are all at an end the moment that the attorney general says there's a regulation because of course the attorney general's been saying for quite some time we have nothing to be concerned about my understanding is presented in this case is to decide this on a full properly developed record i would have thought that this court's preference would be to have a try and this is been discords instruction to the  attorney general is correct that they can't adequately go to trial without the information in hand than as we were to decide that they were entitled to so i think this is important i don't think we like to interfere with the district court's trial schedule but it's the discovery cut off in their complaint that without the discovery they can't will be prepared for trial and i go you're saying well a full record is great i agree with but if the full record has been precluded by the pool every injunction which we might wind up deciding is overrun then why wouldn't we hold things in place till we can decide what we do because that's not how this court handles discovery disputes you would be inundated with a palings to come before you saying that there is a discovery socialist workers party versus brown i don't think that it's ever been understood by the courts in those cases that in order to adjudicate the constitutional question there has to be discovery into all the individual members of the organization who and to basically obtained even without that sort of granular discovery into individual members and i think the same is true in this case i think that the a g will have ample opportunity to prove her case in terms of why she needs kegel b s how they're properly treated  confidential what the law enforcement interest is here and why there should not be a chilling effect in terms of the instances we cite where there has been retaliation where there has been represent the basis the objective basis for the child it's out there the attorney general is getting those depositions she's getting discovery to those she can make her case the only thing the district court has said is for close to her consistent with the plume an injunction which never sought to get modified for this purpose is discovery in to hear the individual names and addresses  of individuals who are otherwise not involved in this case that's exactly what we want to protect and i think need to protect consistent  describes a two thousand and eleven summit meeting or just attendees for the foundation's pacifically or subjected to violent protest physically accosted injured that was specifically an event for the foundation and in mr fink's declaration that you'll find in excerpts of record fifty four and fifty five he talks not only about a large portion of the donor base for the foundation being concerned he also talks about an instance where reporter got hold of a list of presumptive supporters of the foundation and they were subjected to harassment and to boycotts and judge fisher if i could just briefly return your  where are we going to have a second after the regulation god well your honor that i think not i think that this case is likely to be resolved i don't want to be too optimistic but one of the things that the attorney general has to show consistent with exacting scrutiny is that there is a look at a regulatory interest in the schedule b that we don't believe exists we already have indications of that under oath the deposition but the i r s for instance is already contemplating getting rid of schedule of it that will suffice at least for purposes of a plumber injunction i don't read that explicitly at the court leaves open the as applied challenge with a pie in the face showing the be made as to a particular organization and then there needs to be a serious weighing a weighing consistent with exacting scrutiny of the first move in interest on the one hand against the regulatory interest on the other that's not been undertaken by this court at all and certainly not on the fully developed record that i believe we would have on those key points but to the discovery point judge fisher  in previous fortune egger it was a discovery question that came before this court as well and the court was very clear that even though there may be some relevance arguably to the association of records the communications that were being requested that was outweighed by the first man interest and i would submit to your honor the first time interests here are analogous and i would say at least as strong but there's even less relevance to the discovery and there's never been a suggestion in any of the cases that were citing the attorney general citing that the litigation really gets down to who the individual contributors are even as you're trying to protect their identities i'm going to talk really fast to try to get through some major points but the first one is this which is just to remember that it is actually plaintiff's burden both on preliminary injunction and it will be its burden a trial to show it has not come close to doing that there is nothing judge reinhardt as you have pointed out attached to mark holdings declaration that suggests that simply donating to the foundation is going to subject anybody to a systemic pattern of threats and violence such that the the vulnerable foundation which is not vulnerable at all will dry up contributions will totally disappear and they will be removed from the marketplace of ideas that is what the first amendment is concerned with in the disclosure requirement there is nothing nothing in the occupy foundation that is a lawful first amendment protest and it shows when you go to the forbes article that's attached as prove declaration that there is mounting police presence throughout the evening so to the extent that things get a little bit out of hand and there are scuffles the police are there to protect the foundation members that is not true for the end double p that was not true for the socialist workers party where the police and the f b i were actually running the s w p disruption program and had something like six hundred pages worth of surveillance and government harassment of the socialist workers party to suggest that one statement that tied legitimately illegal activity perhaps wrongly to the koch brothers which was subsequently corrected rises to the level of government hostility that's found in brown versus socialist workers party i'll just be generous and simply say that's incorrect is completely wrong that that just cannot be finally in terms of a few things so the issue is not actually whether extra record of events that was not before the district court is not properly before this court shows that we have achieved perfection we have had inadvertent disclosures pursu our policy when they have been brought to our attention we have corrected that and we have already shown frankly that we have a compelling interest nothing in c c p depends on the fact that there was minimal burden shown or no burden shown on first amendment rights the very clear holding is we have a compelling interest in enforcing the law protecting the public from fraud and that our requirement for all the reasons we've stated in our brief and all the reasons that the c c p court it is substantially related to our interest even if it did however depend on where there's nothing to counterbalance the burden here there's nothing to counterbalance the burdens and before we get to whether the government can satisfy exacting scrutiny whether in fact we have a compelling interest which we do and whether this requirement is substantially related played if as a very large burden to show harm to show harm as i said with in the meaning of the seminal cases of and double a c p bates socialist workers party the fact that that's an exacting showing to me is been reiterated by this court and the supreme court as recently as in dover says reid they haven't done that i would just briefly ask that the court stay the district court proceedings pending appeal it's really not a case to say that we'll have a full properly developed record because of course we can't test any allegations of parm we cannot get any information about donors which would go it would be a litigation i've only review would not go to the regulators we had no need to ask the district court to modify the injunction for disc for discovery  junction doesn't say anything about discovery it was very much news to us that this was the way the district court would interpret its order and that is why we have we have moved because otherwise we're going to trial without the ability to test whether or not plaintiff has met its burden and we will be likely back here talking about the exact same legal errors that we are talking about now the district courts as abused has abused its discretion difference whether you're able to collect this information in the next couple of months and that i know you may as a matter of great principle you might like it but practically there's no great harm done the society if you don't get this information for a couple the more serious question i think is what what is going to happen about of trial that maybe turn out to be a meaningless  e for two reasons one you can have a trial before you have a regulation and circumstances may have totally changed when you have a regulation and two you may have a trial without  right we have not actually asked for a stay of the order we are not asking that our regulators be given schedule the information from the foundation pending appeal we are saying while this panel is deciding these issues please hit pause so here be right back where you were after we shoot her decision so i'm not sure what practically is a sensible solution one thing i might say and it may not be true in this case we have but the average length of time it takes is to decide cases might suggest we might not even have a decision until a time when crowds though that is correct y so this appeal would likely be moot at that point because the trial will go forward based on the very some practical solutions i mean we can decide cases all the time and motions of time are we do sometimes if they have a practical effect i'm addicted talking about a practical idea i think this could have an extremely practical effect so basically district court proceedings are stayed there is no prejudice to plaintiffs from however long however many months it takes the court to decide there is tremendous profit is to the attorney general from not being able to get the information that we need to figure out whether plaintiff has met its burden now have to decide the discovery issue that is correct and we have not asked you to however if you invalidate the injunction which forms the basis for the district court prohibition on our getting discovery it is our hope that we read courage because we say there was something wrong with that with the preliminary injunction your honor i can only say that i understand that this particular judge may not be discouraged simply by  the reversal of a preliminary injunction although i would hope that guidance from this court about the appropriate standard of law what is an appropriate showing what is required that the judge the district court is required to listen to that and would take it seriously if this court is concerned that it will not change the fact that we do not get discovery in the court is inclined to think that we are entitled to it under pendent jurisdictional that we have not asked you to look at the discovery order you are very free i inextricably intertwined with the underlying rule and you are free to actually make an independent determination about what discovery we are entitled to and that might have a greater practical effect on the district court i obviously leave that to the court what think if the panel has no further questions we would just ask that you reverse the district court and please issue a stay pending appeal thank you thank you