northern district of illinois sitting with you see she's just wander far and i think everybody is right and  courthouse there are two kinds of events that we're going to talk about water sponsored events and then there are some private on sponsored events with respect to the sponsored events county is how we contend not acting as a mere form provider are the courthouse grounds themselves first is the area bailiff on the surrounding side for keep a lawyer because that would have made a very good engineer it's sort of a normal city sidewalk i don't suppose that much different from what's outside here in terms of that with the courthouse grounds  sidewalks border the surrounding streets right so you gather up the street you've got four downtown streets you've got sort of an ordinary city sidewalk for most of the grounds it's bordered by a lined stone wall i guess it would be called and then you have grassy areas leading up to the four entrances of the courthouse which are they all look kind of same but functionally only ones open for the public ones open for prisoners to come in and i think one's pretty much closed entirely in the fourth one is lawyers can get in with and that's when  was in the right but when i'm with him i figure out is what it is included in the grounds so the grounds would be everything from the courthouse doors through the sidewalk sort of a retaining wall that's about knee height around moats round a lot of the court house although i suppose one side of the wall goes up above your head and then there's stairways kind of coming up on either side to what would need to would need to permit anything inside it's not exactly approved a new wall inside the new wall or inside the knee wall inside the retaining law and then from that wall outside which is the city sidewalks were guarded the traditional public forum that anybody can be on that you're not talking about a cement plant a cement patio type of thing right well so there's no patio where these functions happen there's the grassy like no one else there so there's a there are areas where the wall stops and then there are a couple of small steps that do come up you can tell it separate from the surrounding sidewalk which i think it's somewhat significant there's the district court decision that the or i'm sorry go circuit decision out in d c about the supreme court plaza and yet a supreme court case where they said the sidewalks around the supreme court are our public forums i have an idea why don't you supplement the record with we do have pictures in the record yeah but well we'll go on all right so you if you insist that the private events on the courthouse steps and grounds have been limited rights and insisted with you know a county purpose but the invocation of those words a county purpose it's really just another way of saying that it happened to convey a message the county creed with right and i'm wondering how that is distinct from receive permission to be there and what's more higher society received the same or better treatment than those private events they had their four hour ceremony and then and then two weeks later they were looking to come back again so they got the same or more of those private events but around the fountain art fair which is the main one we're concerned about because i think the county would exclude all the other ones that they could pleased i think they would have back in ninety nine they were considering just closing down the whole courthouse grounds to advance and they would have done that to have a clear legal standard so they didn't have me here today  seventy's after somebody had a consultant head suggested destroying the court house and rebuilding would be a way to revitalize the downtown so a group of community minded people took it by themselves to start organizing this to art fair to revitalize the downtown a little bit and celebrate the art of the courthouse and they've been contributing to the there's a permanent actually start in the courthouse there's how you can keep your head so that art fair was in the background when they adopted this event policy in ninety nine they were concerned at that time about counting liability for nativity scene that had been on the court house grounds for some time so they wanted to avoid liability for that they wanted to avoid having the court house drawn into politically sensitive conflicts the examples given in ninety nine meeting and the nativity was on mind i don't know that there's anything specific but in the minutes that are in the record they cited the boy scouts versus gay rights activists and pro life forces pro choice activists and they just didn't want the court house to be drawn into those sorts of things but like i said they wanted to craft a policy that allowed them to still be part of and have the around the fountain art fair downtown so they sponsored that they came up with the sponsorship idea don't you believe th sponsorship idea actually brings them more into it which is like you say why you're here i think or it's it's just no one's attributing the views of you know the boy scouts or the the versus gay rights then the plaintiffs would probably be very much saying this is government speech this is attributable to the government there is a case judge hamilton decided when he was a district court judge was reversed on standing grounds but at that time the speaker of the house of representatives was it was one of those prayer cases and that case said that where the government controls the forum and invites the speakers at becomes government speech even if as in that case the speaker of the house did not review review the prayers beforehand so i think the fact that we close the forum which we're entitled to do you can court closed court house grounds  you've got a couple of cases from the circuit where oh somebody wanted to put a high art display marking a judge down in the law and and that that you're right they are views attributable to government and that's i think important because the government's allowed to pick views and i think that's part of what government does they express views on behalf of the people who county really argue that it is saying gauging in permissible content based restriction as opposed to you point discrimination i mean given the county said mission in the district court that it don't think we win if it's not government speech the longer answer is that i think that this district court mischaracterized what i said at oral argument it's not so much that we disagreed with higher society it's that the county was not willing to take a position on their speech versus for example the the art fair the police memorial service and ninety fifth anniversary i think they were taking a position on those they were agreeing with those messages adopting as them as their own and elevating them by putting them in a public space that was not a symbolic space i should say that was not otherwise open to events that the public in that sense it was speaking for itself it was promoting something valuable to the community and i think though the reason we don't win if that's not government speech is because we were selecting elevating certain speech that the county thinks is important versus suppressing a particular viewpoint and i think that that what you're citing is evidence that this this policy was not being used as a means to higher society to hold that purse the communication about the event came in sort of sideways higher society had called the city of lafayette so the to be a new county courthouse is managed by the county government but it's in the city of lafayette and so higher society had placed a call from from to the city of lafayette the city of lafayette transferred the voice mail over to one of the commissioners one of the commissioners maybe wasn't paying attention and so he forwarded it to his assistant to say well go check the courthouse security see which doors they're ok with this happening in front of and  thought it was had been approved based on that communication so the only response to higher society was that ok you've got to use this side you can't use that side and then once it was taking place in the middle of the you know in the middle of cord hours they you know the decision was made not to stop it because higher society head had good reason to think that had been approved but it had not been approved and so after after that took place i in fact at a meeting said we had to make an announcement that this this is not followed normal procedures and we had that tighten that up for the reason that if it happened again if we had allowed that second one to go forth without a sponsorship i think i would have a hard time today saying that this was not some kind of a public forum that been open because the way you can get to a public forum is having a traditional public forum where you can have it designated as a public forum oh how long is the art fair been an annual event of forty three years i want to say forty three yeah and you mentioned the krisher where we want to call it the the is that still in place now that stopped in ninety nine when this policy came up because of the how long the debt been going on historically i don't know but i think twenty to thirty years i think it been a long time because there's sort of a thing about things that are historical as opposed to something that's here today gone tomorrow i guess yeah  i think i don't know what the current commissioners would think i think there was perhaps one of the commissioners at the time she she would not of  had to put this gently she would not have been comfortable authorizing other religions to have their events there as well as that nativity and so the decision was made that well if she was you know her only option at that point i think the council was a time is to exclude them all you can't just let on that to have any scene in the spot and not open it up to other religions because i think i think it's  sponsor or write those and that's thank you ted we're calling those private events in our briefing and those are excluded they drifted up into the court house grounds somewhat but our position is the higher society been treated exactly the same as those folks they were denied a sponsorship they were not told to move when they were otherwise having us sidewalk demonstration higher societies complaint is they want to be associated with the different from wanting to be associated with the court trying to say that the court a cruise what they're doing is that which is trying to clear my approval but they want to be in that spot because that's where the drug laws are enforced their deposition says that they were asked why not just do the sidewalk or go up walk down the road to really plaza which is a big plaza they could have if they wanted to be there because it was special because it was associated with drug law thinking using the word sponsor distinction between the sponsored events in the private events planned parenthood syria all of those are private events sponsored events that evidence is that they there's the sponsorship agreement they go to a public meeting they ask for permission at the public meeting the commissioners approve it and they're being allowed to have it up on the court house grounds where everything else is excluded i think having the grounds excluded other things city block to private groups an expression that it favors while at the same time using the government speech doctrine to deny access to groups and expression does not fit the expression that has taken place and takes place on the courthouse grounds by the private groups is private speech not government speech and the admitted viewpoint discrimination against higher society is therefore unconstitutional and the district court must be affirmed now a court h fora but we've cited a number of cases from other circuits where individuals have gone to court houses for the precise reason that it is the seat of governmental power and going down a block away or even around the courthouse is not the same as appearing on the courthouse to advocate for repeal or modification of the laws that are enforced in that building the question then is whether the county has opened up the courthouse grounds so that it is not allowed to engage in viewpoint discrimination and it clearly has it argues that the groups it has favored by allowing them to appear are engaging in government speech but there's no indicia of government speech or the private groups have to post an insurance policy of a million dollars to indemnify the county they have to agree to separate indemnification they have to agree to pay for expenses and costs including cleanup expenses they are any way yes very much so because we agree of course because the supreme court has told us that there are times that private expression can be adopted by the government and become government speech we have to look at three factors history public perception and control skipping around to the public perception the fact is that the people in typical new county view that courthouse as a place for private expression yes planned parenthood went there the syrian refugee protests went there the anti poaching went there they entered the courthouse without permission they had complied with this policy but that identifies what is obvious which is that people look at howard houses as a place for individual expression no one is going to look at the a rally of higher society taking place on the courthouse ground and say to the kook out he is in favor of legalization of marijuana and that's the difference between a license plate or a statute on government property if you have a statue on government property people are going to see it and say it's there because the government wants it there or license plate but no one's going to look at private expression and adopted and in fact if you go back to the first part of the three part test and walker and sue him you look at history what is the history well the history is government except statutes for its express a purpose government not just the state of texas but all states has license plates for its own expression there is no history of government allowing on courthouse grounds private expression and then adopting that as government speech to see if there is a fine line between a permissible content  grounds and support of illegal activity would it not i think how is that any different than what was done here well for one thing what was done here is being operated under a policy we're challenging the policy the policy it's clearly unconstitutional so what you're saying is what if they adopt a new policy saying you're right we do have a form here but we're restricting it and not allowing advocacy of unlawful actions or whatever what have you the problem of course is that you have the league of women voters who advocate for things you have the fur trade or police who advocate for things higher society is not necessarily advocating that laws be broken  said and how it's said and we don't know if if every other piece of artwork is promoting drug use that is in the round the found are fair i doubt it but we don't know that because it's not government speech it's private speech yes things could be drawn differently and the case would be radically different but that's not the case we have here the case we have here is a policy and the policy clearly allows for private speech and allows for viewpoint discrimination county employees authorize you to hang a banner for instance inside the courthouse building or use an amplifier on your first foray my understanding is that they were the group was told what stairs they could be on and they did inform the staff that they would be using an application at some point they were told they were disturbing which they might have been they positive responses and want to go back to west lafayette it is like a university town where which i believe has a history of advocacy and they are they are interested in for advocating a change in the law and they thought that would be a good place to and what we have of course then is private expression the county then must meet the requirements of viewpoint neutrality and reason with the county concedes it's not being viewpoint neutral this is not government speech if we go through three factors of suman walker as we have it's quite clear history public perception and control all show that this is private expression and given that the county was engaging in viewpoint based people here in the plaza cross a street and i'm not sure whether they show up smiling genius leo or they get permits i really don't know that that's a public place and that's where they can sound off or near the government they get to governments to complain about right there so in south bend as they i have a courthouse similar to what you describe it it's it's been condensed mostly because they're building other stuff around it so there's still that kind of access but i'm can look out my window and they can see people waving signs some other things i can't see but apparently there are a lot of other people i don't remember what the issue was that i guess  sidewalk versus grounds is where i'm kind of confused because the grounds sort of become more i don't call it sacred as it gets closer to the entrance and so there's whatever it's a big deal i don't know whether those need permits or not well at i mean there is the psychological effect of being on the grounds of the place where the laws enforced but from a practical standpoint and and i've never been to a higher society rally but but if there are speakers and this is groups speakers wanting to advocate membership to then go on to help change the law it makes sense for them to be elevated and being on the stairs gives them give them a platform a sidewalk rallies just people walking around in a square if you're on the stairs you have the opportunity to actually have a rally have speakers have people come up and down and address the crowd who's more of a stage than that's correct that's correct but but i don't want to diminish the other factor which is they want to be at the seat of power and i think that is a valid consideration and we know from the supreme court and from many cases that that you know it's not up to us to tell people how they best express themselves as long as of course that we're dealing with a form that they have the right to be and which i believe we are when us is really comes down to it who are the people to say what is and what is not government speech what course and that's and that's why i think if you look at the government speech cases not just some walker but this court's case in illinois didn't land dealing with putting a little placards pamphlets on a state park kiosk you're dealing with a much different situation than a physical space that people can be there for an hour and then we i think we'd have incited in either as mr masson any cases like this where the government is somehow deemed to have incorporated clearly private speech for its own that takes place on courthouse property because i think we understand because of the first amendment that people go to places like courthouses and government buildings to express their own private grievances and thoughts and that's exactly what we're having here and we have if you point basis cremation that's unconstitutional you mention it to be seen as something that had done so historically then they got i'm comfortable with the issue you wouldn't want that well it's something that the a c l u would want to get rid of wouldn't well no i think i think if they adopt a fee if they come out and say we're going to allow speech to take place with permit and what have you and if someone applies for a question of someone applies for menorah and someone you know we had a we have had a case in southern indiana or something similar to that with a courthouse and it basically said look you know we will keep the ground open for all displays at that point no one's going to think that any particular splay is there because of the county it's going to be there because it's a form for that for it's sort of display in the same way no one's going to look at higher society as i said and say well i guess typical county governments indorsing marijuana reform because we understand that people come to public buildings to voice their own expressive thoughts and activities thank you thank you thank you judge if we closed the forum to other displays and had a county office and government sponsored nativity display and put it up on the courthouse it would absolutely be government speech at that point so i think that if you added a menorah on site and when i think it still would be government speech they would not be objecting as much i think it would still be government speech but it would be permissible government speech in that it didn't it didn't violate the establishment clause at that point so i think you should look at the nativity displays and things of that nature and there should be one standard for give me another minute well ok i'll look at the did he mention the insurance policies as in this year that it's not government speech i think if you look at walker you'll see that the private groups paid application fees for the license plates and i think if you look at that vista graphics case out of virginia especially it was just affirmed on appeal of the circuit court said that even though the policy said that the private literature shall not mention endorsement by the government and it that was still is one of those pamphlet cases like the illinois dunes one that was still governments which thank you thank you everyone case like every other case will be taken under