viewpoint discrimination but that is precisely the case before you today can ask you a quick question before we get going too far the briefs that you have submitted are overwhelmingly about viewpoint discrimination the district court found that this was government speech and therefore that the first amendment didn't apply i'll just tell you i think you have come perilously close to having waved arguments about government speech which would be  position you've got a couple of bulky footnotes addressing government speech and then some sort of later discussion of it in an establishment clause portion of your brief can you explain to us why without divulging client confidences of course but why you brief the case the way you did and why i feel so now uncomfortable about the position that you really haven't taken with respect to the dispositive question in the district court or as i have read the record government speech really did not become an issue until the hearing on the motion to dismiss it i mean the district court's order is littered with it right that's the basis upon the district  court's order which had the benefit of the the the briefing that had occurred up until that point and then the magistrate's report a recommendation but government speech really did not come up until our  our hearing it has always been our position because at the outset the reason that we were given was the denial of our request was based on viewpoint that this has been a viewpoint discrimination case our but if it's government the government can can discriminate on the basis of viewpoint in its own speech correct if you're if you're if we're in government speech land we're outside first amendment land sure but this is not it's not our position obviously at this is government speech and our entire briefing on know i mean you the district court wrote an order that said you lose because this is government speech and you don't really push back on that except by implication by arguing fifty pages about viewpoint discrimination i think the way that we approached it is we win because this is private speech and the state engage right that you see at the outset the threshold question becomes whether or not this speech was government speech at the outset did they control the microphone and call the tune in such a way that they had a right to exclude you that there no free speech issue at all because it was government speech that may be wrong but at the heart of your argument it seems to me and what judge newsome is saying is you've got to say this is not government speech because and therefore they are a first amendment dimensions to the problem because if they're right that this is government speech you lose q e d end of story right at the outset sure and i understand the court's concern however as i said why don't you tell us why this isn't government speech  i say this my reference is to that introductory portion of the football game when by their rules and regs they play the national anthem they have a pledge of allegiance and they said no you were not going to let you say a prayer at the beginning sure and if i could just step back for just one second it's important to remember i think that whenever we're character  about characterizing speech as government speech courts are generally reluctant to do so because it strips speech of all its protections at the outset of this litigation even before that occasion actually began let's  clear we requested the loudspeaker to pray and the government's side no you can't pray because we're afraid that you don't legally untangle los angeles we understand their rationale was that they thought it would put them in violation of the establishment clause it was the nature of the speech itself that led nowhere to say you can't do it i understand that but i want to go to the threshold question the judge new raising why isn't this government speech it's not government speech because under case law like for it to be government speech the state has to control every word that is disseminated i'm sorry i have to stop you about this because when i read your citation and quotation of johan in your brief i was so surprised that i thought could johan really say that at pages twenty six of your blue brief page three of your great brief you quote johann as saying speech constitutes government speech only when quote the government sets the overall message to be communicated in approves every word that is disseminated close quote so when i read that i thought holy cow that's pretty strong stuff let's check out johan yohan says when as here the government sets the overall message to be communicated and approved every word that is disseminated it is in effect government speech that state a sufficient condition not a necessary condition word only with respect to johan's observation that fundamentally changes the meaning of that passage i think that if you take a look at all the cases that we have cited for government speech it's certainly true that there is and there's a high degree of control over that speech for it to be government speech when you're looking at government speech cases you're looking at the degree of control over the communication that's being expressed and you know i agree that control is a is one of three factors that have been recognized in some and the last and plate case walker and then our math tutor pornstar case whatever the name of that case was i cannot remember mek but your characterization in your brief and then again today that government speech analysis applies only where the government controls every word i don't think it's a fair reading of johan's and i don't think it's a fair reading of the balance of the president there are messages of course that are communicated in any given platform that can be government speech and that can be private speech the fingerprints that are over the message if that comes from the state that's government speech though that's what these cases represent it's again not to sound repetitive but it's the the they do degree of control i want what guides the an here is you know if if if speech is is controlling is controlled by the government that that sends off a signal to the public that is different from private to me ask you  question this way suppose the state authorities had said to the request to give a prayer at the outset thank you the answer is no this is government speech at the outset and we don't turn the microphone over to anybody for anything we do two things we do the pledge we do the national anthem that's traditional at the start of a football game and that's it so thank you very much we don't care what your message is we're not giving you our microphone that would be classically be government speech right i think the reason for  classically government speech i i would disagree with that you mean they are obliged to give you the microphone under under that the the protocols and the policies which again were not relied on by the state at the outset of this litigation but which are part of the record the parameters are set of forth by the protocols in the procedures allow the school to communicate to the public i mean the protocol itself says and i can read it to you just so that you can see it on on record page eight wine page fifteen messages provided by whole school management is something that can be disseminated by the private christian school that's invited and let me ask the question way suppose the protocol simply said we're not turning the microphone over at the outset of the game period end of story the only message will be our message and what we're doing is the pledge of allegiance and national anthem q e d end of story thank you very much that is closer to government speech hoster how could it be anything but government spoil ok i'm sorry that is government speech however if the motivation behind that decision is to suppress a particular viewpoint because now we've already said we want to pray if their point is to suppress viewpoint if we if the evidence shows you know where we're digging all this up on the record shows wait a second there's a reason why they said that then we can get into well suppose the government just doesn't want to have it going to make it government speak because they want what other speech including protected  they would let in or not let in or viewpoint or anything else you go to that yes i do but that's not what happened here well what concerns me about the said well here's the thing that we have to accept that that was going to be open to to that particular viewpoint religious viewpoint and he and here's here's the important point about this remember these are two private christian school s that were invited in to katty campus camping stadium want to go ahead and play at this game the private actors wanted to you know requested the loudspeaker to use briefly as there are a loud to do private speech is allowed we have various instance keep saying that private speech is allowed i mean like is that because of that one line in the protocol i mean you know it's not just i mean i hold on hold on one side i mean isn't that i mean isn't the purpose of the p a system which i'll take to be i don't want to say forum because it's loaded with all kinds of first amendment baggage but the medium i mean isn't the purpose of the medium to administer a football game right i mean like johnny coming early on the tackle completed pass for thirteen yards so and so your lights are on little johnny you've lost your parents meet them at the press box sure but the private the private schools were invited to go ahead and use the loudspeaker for certain things and keep in mind that before but were they allowed to again can we tell from the i can i try can tell from the complaint what it was they were allowed to do i understood that they were allowed to make some kind of message but i don't know what the message was and they were allowed to put on the halftime show of seven and a half minutes right and that's the beginning in the end of what they were allowed at least by the protocol do we know what the message what message they were allowing can we tell that from from anything that is before us on a twelve b six motion based on the allegations that we play before during and after the game there were advertisements right come down to have a hamburger and a brew after the game whatever it was several that's not my question my question is focusing on the fortune of the protocol that deals with messages yes we know what kind of messages fall within the ambit of that warnings i tell from the record yes one example from the record the only record i have is the complaint so point me where in the complaint i get an answer to that in the complaint what we point to are again what i had just pointed out to you and also the halftime show and i'm not asking about the half no i understand i'm just saying what we pointed out into the complaint with the record shows in addition to that is  what falls within yes that's the what exactly does it say about a message sure what it says about the message is you mean you're talking about specifically the protocol yes yes so it says the announcer will follow the please i'm sorry there's no indication in this record that the p a system is only available to the announcer no no i understand the problem handedly speaking for myself the problem that i have is i can't tell enough from  complaint and maybe it's a little quick to drill it dead on twelve b six when critical facts and discovery may help me what do i know about the message from the whole school management is there any explication of what that means in exhibit a well we think the answer is no it's just a very simple question does that tell me what kind of message i might be able to give i i would disagree with that your honor respectfully i'm asking does it tell me the kind of message does what does it tell me about the kind of message the different messages that were displayed both before during and after we have the  the seals are they say that i'm sorry does exhibit a tell me what the message is no no exhibit that's all i'm asking exhibit a tells you exhibit is a procedures right i understand so i won't find an answer to the kind what was the thing that you read about no field storming and that's the way i heard it as an alabama fan having suffered through auburn storming the field with the kick six i remember i know all about field storming say so that's one example that's in the record it wasn't specifically played but it in the record it was part of the attachment to the complaint that conveys an example of where the again the p a system is out of the control of the state it's being given to the private christian school who's participating the event to disseminate messages the point about all of this is that the the the government is not in full come full control of the entire time of all these different messages and that's ok because for two reasons number one it has created as judge mentioned a limited public forum a limited or non public for on the even in a non public forum i'm just trying to figure out because i actually think that you've walked away from a limited public forum argument i don't think you are getting your brief i  think we did your honor our point is that it doesn't really matter because viewpoint discrimination right now and i agree with you about that so and again religious speech is a protected viewpoint so we have to go back to the reason why this was denied to begin with the reason why it was denied before anything happened before any case papers are filed was we asked to pray and they said no that's prayer we can untangle ourselves that's wrong that's the conduct that's in violation you can't do that and i ask you a quick question and to get to judge marcus is very important question about what we know from the complaint and now exhibit a so that the protocol itself says messages from the school management yes and then exhibit a you said provides a some semblance of understanding of what sorts of messages we're talking about when when it's not the state that has the mike but now it's the private school that has the mike is that right let me you said one example of that kind of message is no field storming right well that's one example that i found in the record but really the record doesn't as do many that it's we have whites who claims to make counsel what you ought to be saying is we don't know we're entitled to learn an interesting case and let's talk about the free exercise claim that you made at the free speech correct just to plead the claim for a violation of the free exercise clause those are kind of the buzz words we've read that to mean that one the plaintiff has to show that holds a belief not a preference a belief that is sincerely held religious in nature not merely secular and to the law at issue in some ways so meaningful ways impacts the plaintiff's ability to either hold that belief or to act  pursuant to that belief the problem that i had when i looked at the way the complaint was alleged i'm talking really not about the complaint but i'm talking about the amended complaint the operative complaint here is it didn't seem to me that you said although you may have said it in other words you didn't say that communal speech over a p a system had a football game is part of our sincerely how old will to just beliefs it came close you said we pray at all kinds of functions we pray in at the school at the start of the day we pray at launch we pray at the vents of all kinds of different character but nowhere do you allege in the complaint i think that it is a sincerely held religious belief that when we have a function of this kind we're in a football stadium that we should be praying in a communal way fans team everyone over be a microphone do you say that i believe as i don't think you use the words sincerely held religious belief if you do point it out to me well i'd like to call your attention to paragraphs eighteen  nineteen of the amended complaint sure it would be eight page five of the record and also the actual the actual q say eighteen using loudspeakers important to cambridge question it's tradition of prayer i understand that i'm just asking whether you've actually used the words sincerely held religious belief that we've been permitted to use a p a system at a football  game that may be the import of what you're saying but i don't know that you said it quite so simply and directly if you look at the counts we believe we have so i'm looking at for example let me point you to a sooner one but i see it on twenty five nineteen doesn't do it either at least in the sense that i'm talking about i think that if you look at the actual counts themselves we have that language your honor ok just point me to the yarn example is paragraph one twenty four understand that's where the state claim looking for the the federal claims i believe we have that in the federal claims as well so paragraph eighty eight for example the policy in position taken by this state has substantially burden and adversely affected cambridge christians religious exercise and freedom how that stated they get a very high order of abstraction obviously you're going to have to plead that it affects your right to free exercise and your right to free speech but do you say in words or substance it is seriously held would lead just belief that we be permitted to pray in a communal way at a football game using a p a system i think if you ask me the answer is in school's mission we we make the claims of you know the violation of free exercise clause which requires that component and we seek for declaratory relief of those same violations  in addition to that we explain that the fans themselves who are part of the community were deprived of the ability to engage in that communal prayer that's part of their faith base and you know i don't think that the case law supports the government telling people how they should engage in prayer and so i do think that the allegations reasonably support that so you can reasonably infer it even if you didn't use the buzz words we didn't use i'll double check now but i didn't use the but words to sincerely held religious belief is that we pray communally at a football game and the only way to do it is with the p a system because after all well could you based on you know paragraphs like eighteen or nineteen and also other pages i mean we have two pages where we explain why ledge that you know communal prayer is part of our faith based system and that's what you say it's part of your amend it be easy enough to say it sure absolutely just to direct you to the those allegations there on pages four and five of the complete thank you thank you please the court judith mercy on behalf of the florida high school athletic association there's at least two separate threshold issues we believe are fatal to this appeal and the first one being the government speech and put it in a long footnote right out of those under the eleventh circuit precedent we don't believe that i mean i didn't have to hunt for red october to find a russian sub in the pacific ocean to know that they were telling me this was not commercial speech they may not have  it clearly but they certainly suggested it in the footnote and they absolutely one footnote footnote twenty in the district court certainly took that were right if you court had no trouble going right to the heart of the commercial speech issue all right so it was briefed it was addressed in the district court it was other fashion raised here i don't know that you could say that they really abandoned that question when it seemed so central we do believe the issue of government speech is a threshold issue that they can absolutely and even if it wasn't government speech the fact that it's a nonpublic forum is another basis for it i want to talk about the government speech and the control and what we're talking about here and let me stop and ask you just the preliminary question about government speech we all agree under controling law if it's government speech they lose period they can knock him out whether or not it's government speech is another question the supreme court has suggested and we've said that the precise test for separating government speech from private speech may not be all that easy sometimes but we look at it at least three things we look at history we look at indorsement we look at control they overlap but those to the extent we can break out different things we look at let's start with history can we tell from this record simply from the four corners of the screenplay and the attachments what the history is what happened in the past you know there's no allegations about that well so we can't answer that question but we do know we know a couple of things about history from the complaint right we know they allege specifically that in the past they were actually able to pray at a football game they allege in paragraph thirty eight that representatives of cambridge and christian and university christian asked to use the loudspeaker university christian also explained that before the two thousand and twelve state championship game which was also administered by the association university christian a dade christian prayed over a stadium loudspeaker so we do know historically if you accept that as true and we would be obliged to accept that is true would w semifinal games right they tell us that in the complaint a said about that but presumably they had some control over because it was you know one of these semifinal games i can't tell that so i can't tell much about the history here right and that's not dispositive because you have the other line you'll see where i'm going with my question and we know as well hear from the complaint that when they asked for permission they were rejected and they were rejected specifically on account of the nature of the speech itself no religious prayer no religious speech why because we're worried that we'll run a of the establishment clause you obviously talk to your lawyers they said look at santa fe we're going to run afoul of the establishment clause we're not going to let you do that do we know or can we tell historically whether anyone else ever sought the opportunity to make a message on the front end and was denied it with the message wasn't religious in nature so there's no there's no record on that that's right i understand that there's no  record on that so we don't know with all the profiteering messages were ever tried and rejected or there or if they were tried whether they would have been rejected or are there any allegations about that what i do i do understand that as well then we come to the question of control what the f h s a allow a different non religious message to be delivered at the onset of the game if if and from that if you look at the protocol and you look at the script i mean suppose for example two private schools wanted to thank their alumni for financing the football team without which they just couldn't field a football team the p a system is not well i understand just simply do we know can we tell from this record whether if they said we just want to say thanks to our alumnus for financing football what you can tell is by the protocol which says the now smith's are limited to this is very important as well championship game curiously and what's not in the record is that their request for prayer if they have that right if they have the right to take over the microphone they would have had to ask they would have just taken the microphone in the message provided by the host pool and given prayer they didn't do that because they knew that's not allowed if you look at the protocol which is message provided by the host school does that mean that's that mean council  wrote out a message that said i want to thank the alarms for contributing financially to the football program and i wrote half the script in a paragraph maybe i even identified some of the big funders it would be read verbatim by the p a announcer no it goes through the filter of the p a notes or who has to maintain neutrality at all times it's different then if if the policy said both schools can and do whatever message they want to the beginning if that was the case if that were the policy which it's not then the schools could give whatever message they want but do you agree for purposes of twelve b six that in trying to suss out what message provided by the host school management means we look through to exhibit a whatever the document is that we were right and consider the difference between that language and the other but it's in the context of what the public address protocol is and if you read it in context the only reasonable reading of it is that everything is going through the p announcer now contrast that with the other section which was an eight t you missed it but that the language for the don't storm the field it's specifically says that members of each school will say this so it is controlling what's going to be said that language is completely different then a message provided by me ask a question this way when you come to have time is that government speak to it is a government that the government give up control for the have time show there's a performance and what so how is that and how is it government speech if you turn to two football teams and you say to them traditionally we understand half time what it is we have music maybe we have some dance it's an interlude between the first and second half and you go put on the show you give us the music and we'll pipe the music in through a public address system in the cheerleaders will dance to the music is that government speech well it doesn't change the nature of it because yes is control the cheerleaders couldn't couldn't first of all without i mean just because it's not about how is it just because is it just because it's on a public address system is that what makes government speech no is the aspect of control the cheerleaders could not what's the control the reason i ask the question is do you tell them what they can and can't put into their half time show and if so is there anything in the protocol that says that just says you got seven minutes for their for their performance and i believe prayer that wouldn't be allowed how do you know where does it say that in that if you have to read the context and this i have read the context ok and you read the script of the the reason i say it is it seems to me that what you've done is you've said what usually happens at a football game we expect will be a halftime show that the teams will perform and certainly in a college should have big bands and stuff like that but in high school they can't afford that so they give you the music suppose they give you religious music and they dance to religious music and religious songs is there anything in this record that suggests you censor that and bar that from doing there's nothing in the record that's ok so i can't really tell at least as to have time whether or not that's government speech certainly looks in many ways to be some kind of private speech some kind of private message if i'm sitting in the stands and i'm watching a football game and the two teams get seven minutes each to perform at halftime and my going to look at that and take that to say that it's got the in provider of the statement that state speech is that how a normal sent human being said at a football game is going to take a half time show i don't know that a normal person would would take that i think there's a difference in the nature of what you see when you say halftime show was is government speech because of name court tells us we got to look at history control and endorsement i have no evidence on any of that here all i know is you give them seven minutes they give you the music you play the music they dance that i don't tell me whether you can censor the message if you don't want to suppose they want to give you a political message could would your sense of that i don't know i bet you would but i don't have anything in the record that says it but suppose the music is religious music to which they are dancing christian networks there's christian rock music i don't think they speak to jesus is there anything here that says they can't do that no i don't think it changes the nature of of the control just like the why doesn't it change the nature of the control of the school gets to decide what to what to what music to bring that to rather than let me just finish course that the school gets to decide what music to play on reviewed and on censored by the by the the state why isn't that private speech if what makes that government speech other than that it's on a government platform through a government vehicle  so far as we know other than giving a seven this control you say you got seven minutes you cannot dance and give us music director what the performance games so they know who the audience is and who the teams are and what their religious beliefs are and they allow and they by inference or whatever story i have a hard time under those circumstances since i have no idea what's going to be done it ha i understand your point i do think the issue of control is different here but even even if we're talking about a verified complaint right which they were given the opportunity to amend and they did not write but isn't it fair to say that we just don't know we can't tell and so the real question is whether the complaint states a claim laws  plausible theory upon which they can travel and if the answer is yes and maybe the district court was just a little too quick on the trigger to dump the case on twelve b six rather than giving them the opportunity for discovery and you may be right that it's government speech but it certainly isn't self evident from the four corners of the complaint and the attachment as i believe to about half time so you could make a stronger argument it seems to me on the front end then that half time and maybe the contexts are different and i don't know right well i do think it's it's different and i do think  the complaint the allegations and what has been submitted that there is enough to find government speech and have a time in it at half time right for the reasons i've set forth and just to i'm clear is that your position that that it's that looking at the halftime episode alone that that is government speech or that holistically this thing the p a medium is government speech and the fact that halftime may not be controlled rigorously as rigorously as everything else is not sufficient to sort of overcome everything else that's going on you have to look at the thing in a whole and it can't be because there's no there's no allegations or nothing in the record that the p a system is turned over to bans would happen what happens is if the  it's cheerleaders and they don't have a band the reason they used to be system is for music it can't be that if a school doesn't have a band and they have a cheerleader they get to pray it but the problem is though the problem is that there's nothing here that tells me that there's any states in story a little violent in the selection of the music or the choreography of the of the cheerleaders seems to be they're free to do what they want to do maybe if they did stuff you didn't like you might come down on them and come down with some new rules but on the four corners of what i have in front of me i can tell it and it looks like they have pretty plenary control over the music and over the choreography even if it even if it even if the government speech threshold wasn't met which i believe it has been it still fails because of the nonpublic form an unarmed public forum the government can control the event for the purpose for which it's a title this is a football game and it's a half time show and in that context there the school doesn't get a right to take over the p a system that's not open to anybody else in order to do  it in some interaction some program here and let's have it i could have a loudspeaker that they're all joining us for all we know they could have some religious him and played the music and had the cheerleader lead them in a religious song i bless america and let's not forget the saying it in this record the school prayed all schools prayed on the fifty yard line before the start of the game and they had the ability if they chose to they could've they could have brought in their own megaphone they could have asked her fans to come down to not to the field but to the front seats participate in the prayer they could hand out the prayer that everybody could say it together there were a number of ways that they could have they could have done their communal prayer that don't involve the p a that was about the whole place was a public different question on this issue of what speech is government or not as i understand it from the room limited record commercial speech was allowed that is to say the p a announcer would deliver a commercial message for commercial interests i don't know anything more than that i don't know what kind i don't know who wrote the script i don't know whether the script was censored altered or rewritten by the p a system can i tell any of that from this record you actually can and actually only what i would look to to inform that is the answer will follow the it's in section the it's in the protocol three point one point eight which is the lower docket eight dash one page fifteen of one hundred two and page eighty three of the appendix so the announcer will follow the f a a just a script for promotional announcements you can actually find the script attached to doctor during this affidavit which was filed in opposition to the injunction so that's actually before the court mean just because he filed an affidavit doesn't mean that we can just consider any old thing in the record if it's a twelve i know it so generally on twelve b six what i'm limited to our one book complaint to any attachments to the complaint three conceivably what judge charles let's just pointing to some judicial notice that i might take of not of fact adjudicated fact but facts that are self evidently clear or legal codifications from a legislature but not generally yes and that's why i'm just raising the question candidly whether i could even consider that which really wasn't part of the complaint with the attachments i actually think it was the argument was in the appellant brief  that i don't have the cases in front of me but that makes it so that doesn't consider help me any more than if you give them a first amendment case you can consider things it's like a little bit no i can consider first amendment facts on the salerno in a very different way as an appellate court than hamburger joint in a bar within a mile of the citrus ball and i know there's going to be a final game there and i give him a script saying bob's burgers are the best burgers in town get your best brew for a buck apiece  etc and i read out the script does the p a announcer just read the script the way i give it to him or does he we drafted pursuant to some template that he's given by the authorities and can i tell that the four corners of the promotion script of the f h f h s a you can you can tell i think you can tell from the protocol and if you're able to look at the script you can see partner x y z that's completely different and you remind me just what was the procedure and maybe judge marcus probably knows i think he was on the panel what was the procedural posture and back was that twenty six or summary judgement you recall and if you don't it's fine it was  and that was the difference most of these cases are summary judgment ok we believe on this with what's before the court and what the allegations of the complaint that the district court's decision   i like to make four quick points if i could i think part of what we heard just a few moments ago about the message that's provided by the whole school management and judge marcus i think i better understand the questions that you presented at the opening so i apologize for that when you're reading the procedures i don't know that you get a fully informed explanation of how all this is supposed to go but what we do know is that again going back to the halftime show the state did not have control over the loudspeaker it gave it to a cheerleading coach to play music off of the i phone or the smartphone rather and you know there was no there's no record evidence to suggest that the state had any idea or any approval of the music the lyrics the artist no sort of prescreening i guess if you wouldn't speaking its prescreening we don't know exactly how that works under the record we have argument slightly that came up at the hearing but not record evidence on that and so when you say things like yes to music but no to prayer no to prayer at the outset before anything else aside that's sort of highlights the viewpoint to ask the question though could they have created a at the outset of the game that's government speech would not let you say anything period that's not what they did here but if indeed they had said in their protocol said we're not turning that microphone over to anybody for any reason period whether the message is political religious or thanking the fundraisers all you get at the front end is the pledge of allegiance the national anthem period and yet they open the forum up for a half time and that wasn't purely government speech so it's something less it's some kind of limited forum we're not quite sure what they could do that couldn't they had a football game i think it depends on troll this mike at the front end and open it up in a limited way for a limited purpose in the middle of the game they may be able to do that but it depends again on the reason for why they're saying what they're saying at the outset if we find out through record evidence that ultimately the reason why was to suppress a particular message because we said that we wanted to bring we have a problem we have the ability we know that we know that from the record already i mean we know from what's been attached that they weren't allowing you to give a prayer because they did want to prayer and they thought they were going to run afoul of the establishment clause you've already established that that's easy the question is if they had said we're barring everybody else too that would be different but that's not what they said here right it would be different i think i think that's true the underlying reason always always matters of course you can just ask one question to just to sort of test for what is from a sort of this hazy boundary between content discrimination and viewpoint discrimination but is critically important here if we get through the form analysis because i think we're in a nonpublic forum i think you guys have basically conceded we're now on public forum and you say quite rightly even if we are then it's viewpoint you know viewpoint discrimination is prohibited which i think you're exactly right about but so i think the distinction between content and viewpoint sort of matters and i think maybe it's cornelius that as viewpoint discrimination obtains when the government has suppressed the message  a particular message on an otherwise include subject what is the otherwise included bull subject here within which your viewpoint has been suppressed  think you're correct that it is cornelius i think what i've noticed in the case law is that that phrase has over time been dropped off an otherwise included bull subject  think here if if if there's this specific we would have to brief it to be honest you know the reason i ask i'm certainly not trying to like quiz you or test you the reason i ask  seems like it's hard to figure out to me anyway where the where the line is between content and viewpoint because if the if the if the response is no prayer or terrified of the establishment clause which seems to be basically what happened here i can't figure out which side of the line that's on if it's content o the point now if they had said like are you kidding me no christian prayer you can forget about your christian prayer will you know allow people of other face to testify to pray but not too easy peasy right but if it's just kind of like no prayer or no politics or no commerce then that sort of feels content and to me i think i better understand your question and i apologise for that i think that we the difference between content based and viewpoint based content based does tend to be particular subjects or persons with with viewpoint base it's the standpoint of the position and we know from the case law that religious expression has been categorized as viewpoint based which is even more subject to protections than other types of speech the whole school announcements for example would be  other included both subjects for example one other point that i'd like to make work to if you if you don't mind very quickly we judge marcus we do agree that the court rule  probably pull the trigger not probably did pull the trigger too fast and and lastly going back to the whole government speech which i understand is the courts is one of the court's concerns here you know that's not something case government speech is their defense and that became abundantly transparent when it wasn't previously really briefed upon or litigated upon it came up really at the hearing so to say that it's a threshold issue perhaps it became one if you're looking past what actually occurred here which is you know we made a request to pray and it was it was denied for the reasons that we discuss but but that's that's not something that you know was is part of our case sure i'm sorry for the reasons that we've discussed