with all due respect this is a case about discrimination urine sample nothing more nothing less what into the screaming nation we're talking about let's cut to the chase we're talking about discrimination in the legal biker gang not worthy of going into their fairgrounds now what the killer garlic festival is said in their brief in consistently throughout this litigation is that they have a right to this is what they say one family values this goes against me i used to do alternative lifestyles it promotes alternative lifestyles and three and this was kind of done after the fact is sort of a colors without express the conduct of speech worthy of first amendment protection the district court in answering that question said no but under this court's own precedent and i'm just on case as well as relevant united states  set for different things and interesting that i want to comment on this because this isn't a record one of them said and i thought it was interesting the school was because underneath everyone skin we're all the same people you know that's a message of using the goal and the wings harley davidson wings are typical with freedom are of three lifestyle of freedom to roam the country there are messages in those things and i just thought that was an interesting message but going to the point internally if you recall that was the marching in the in the boston parade and it was a group of different people irish americans gays lesbians bisexuals and they formed this group and they had a banner and the said quote irish american gay lesbian bisexual group boston and all these different various groups with different agendas different viewpoints no particular wise message nothing really that any particular as much  understood they want to march in this parade and they said no you can't march in this parade and the supreme court in the early decision analyzed that and made basically in essence overruled that part of the johnson spa which said that you need to have this particular rise message or you need to have it be able to be readily understood by the public that's not necessarily the true that's not necessary the test anymore and i'll quote from that supreme court decision it said thi and you don't have to have this particular message any more that i would respect this net that the test that was used that was offered by the police in this case that johnson spends test and that you need this particular message and it needs to be understood by the public is no longer the test on the united states supreme court's why would you state what you believe is the curve standard johnson spent as modified forty four i think that the second or third district case be addressed that issue when he said quote considering the nature of the activity combined with the factual context and environment which was undertaken well you need to look at wh many many various groups have patches in fact under federal law patches are specifically talking why the whole as a matter of federal law and more overt there's even a criminal statute that prevents the counterfeiting of patches and that's eighteen  the or argument on the summary judgment motion this is what the court said when we start talking about summertime and on page forty two this is lines nine through seventeen the court it is occurred to me in dealing with this problem that there is a huge motorcycle groups in the most and the different organizations that one belongs but more importantly when you look at it back on page eight of that decision it rules at issue and this is critical in this case are in squarely at expressive conduct that's the words the ninth circuit used in the complex specifically limiting the words pictures symbols and marking people may wear within the building it's a fair open to the public we pay in general admission it's on a public park and of course there's many many factors that intertwine it with the city itself what you keep calling a private event it's not like we had a party at my house and i invited you and i didn't want you to come in this is a a large organization and i think it's a not i would not think i would think if you look at the summer time in case it seems to say you can you can't prevent them from wearing patches motorcycle patches thing that you remember the hell's angels and i'm going to public form and it seems to me that this type of fairgrounds in a public park and what it's doing is a much broader from a constitutional now is this something that we would want to give less scrutiny to or less deference to in terms of trying to suppress ideas on point in terms of patches and it's just not what they would suggest and it's only one guy wearing an american flag and it says try to think this awful whatever said no it's much more complicated than that because if you look at the facts thank you very much i'd like to address three broad points first of all i'd like to respond directly to the comments made during appellants opening remarks secondly i would like to talk about state action since as far as the garlic festival is concerned that is a huge threshold issue and then i will touch again on the expressive conduct issues i do want to talk about the discussion of the core of the case united states supreme court case it is cited in our brief it is not cited for the proposition having to do with expressive conduct however the hood of the case is a case that talked about course of speech and whether or not somebody for example appointed could exclude certain members from the crazy because they express different i would say that since we brief this case we have read the gate right case which is the case your order judge who had written was part of the panel on and as far as the chorus of speech elements i think we would need to take a look at our position in the brief but curly does not stand for the proposition that the test for expressive conduct has somehow been abrogated or changed we have provided counsel and the with a citation to a u s supreme court decision the rumsfeld decision and the rumsfeld decision had to do with a consortium of law schools that excluded military recruiters from the campuses and one of the remainder of the rumsfeld case certainly you know we're going to suspend the argument for a few minutes but we won't use we won't use up your time ok everyone hear me for a moment hurley case the us supreme court case is best understood as a case generally with coercive speech it is not a case that deals with expressive cargo that would be texas versus johnson and again to summarize we have the rumsfeld ninth circuit addressed it at the time that the ninth circuit considered summer tardo it was before the court or a motion for politically junction and it did not realize its course of conduct issue analyzed the case in terms of d we get to that issue or to speculate because that opportunity i do believe me if i could move on to the the threshold issue from our point of view your honor as to the garlic festival is that before you get to those issues exclusive powers over a traditional public forum does not in the absence of other facts become a state actor when the state maintains the ultimate power to regulate activities i required to utilize local police for traffic control and security the city this is important retained ultimate control over the public grounds and the city retain ultimate control over traffic control and safety brief that somehow mr clooney acted in a dual capacity and that somehow they have altered the character of the removal of these individuals from the festival from private action to state action but the same argument was wasted and rejected by the police department but i would submit that to say that he was acting in some kind of a glue capacity overstates the evidence to the point misstating at the time that he approached the individuals and spoke to them about their jackets he was acting i'm a police officer and you need to remove your vests or else that didn't happen here instead he followed festival procedure not any police procedure and he called upon a uniformed police officer officer berkman who then escorted the individuals to the front gate at which time the individuals were refunded their money and what we learned from the lansing decision out of the six circuit is that mere cooperation between the private enterprise and the governmental entity simply does not rise to the level of merger required for a finding of state action and i find that word merger to be a very powerful strong word i think it is consistent with the other decisions in the ninth circuit the cock about something more than a single request for police assistance and that's what this was this was a simple single request request for police assistance the record before this honorable court also contains the deposition of officer bergman and she  testified in her deposition that this was nothing more than a standard citizen contact so there is nothing about this contact that is any different really than the contact between the police and mr lansing in the lansing versus city of memphis case what the ninth circuit recognizes in terms of triggering state action is really something active and significant police intervention that demonstrates a substantial degree of cooperation between the police and the private after that simply is not present under the circumstances of this case you have two minutes before you get into  how kind i would like to just two issues get any first being that there was no state action on behalf of the city and secondly that the clothing worn by palance was not protected speech i believe a lot she merely asked them to leave a crowded area with families everywhere around them to go to the front gate to whitney and her purpose to her was the public safety and welfare she was worried that a confrontation between mr  occurrence could possibly turn violent and and endangered the public that was present in this crowded area of the festival i'm sure where there's a very large festival and it's very densely populated inside the area and she was concerned that any sort of violence could injure other people nearby it would have only been violence if there were an effort to enforce the policy correct and mr coote informed her that that's what he wanted to talk to them about she wasn't the one who was talking to them she didn't say cannot wear insignia so you need to leave there was no reason for her to meet other than this public safety and that is why she chief asked them to go to the gate her job at the festival w i'm not going to discourage that your honor however she was aware that there was going to be a confrontation she was informed by another citizen that there was going to be a confrontation and she knew that that was going to happen her only choice was either i can let it happen and worry about violence to people in the middle of festival or i can escort them to the gate where it will be much safer for the public that was attending the festival that was her purpose her purpose was not to enforce the policy it was not to  those families but nobody else happened that's true your honor but we don't know that circumstance is a bit different there would have been a violence so therefore she was not her actions do not constitute state action when mere presence of an officer is sufficient to constitute state action and that is basically what the district court held in their ruling and with all due respect that creates a very negative public this would be a different case missed the mere presence of the different and hurting the people together to supporting them out in my view i respectfully disagree on i think it was two different actions by the police officer i mean she knew there was going to be a violent confrontation or scoring one and we've already kind of discussed that and i've presented my argument why i don't think that that was the reaction because she was not enforcing the policy and the second action was just to stand by activity well mr clued in force the policy violations this is an isolated event of a police officer being involved if you will and live enforcement of the dress code policy there is no year for the garlic festival that's that's not that's insufficient evidence to show that they knew the policy and they regularly enforce the policy while being at the festival because their have the authority to make their actions into a policy of the city and therefore she or her actions were did not create a new policy that the city was in forcing and in career versus brown the quick their help it city was not liable for isolated or sporadic incidents this and therefore there was no policy and or custom in practice for the city anything might even be supportive of our position in the sense that they required the do this this were not used to be put forth this type of situation the overbred argument right court asked the council about he would have been my direct supervisor in festival clothing basically this was considered a festival party and function that we were providing security for so i would take direction to him under either circumstance question so either it was there as part of the report that you've known for many years correct through and he's your superior officer correct true and whether he was wearing a t shirt that said the garlic festival or the city of garlic please the part you were going to follow the orders no matter what correct uniform i'm just head of security the head of security does not order the head of a private security company does not want the police around that's reality but it's starting to us now also there was a lot of discussion by council about what was officer bergman doing what was she doing she was trying to protect the public from safety and threats of violence and this and that that's nowhere in the record her impressions of why she  syrian no more no less now there are several ironies in this case number one the appellant keep arguing there's no particular wise message it's not to be understood but on the other hand there's something wrong with their message that the message can't be understood if it's not particular they're certainly offended by it so it must be offensive in some ways they can't have it both ways they can't have their cake and eat it too not only that they taxes they're a member of a fraternity organisation the focus of that richard organisation is brotherhood it's a brotherhood of men it's a there with a love and a passion for motorcycles more particularly harley davidson