students the faculty the administration mr taken co counsel to the honorable court i marked for moment i represent the national lawyers guild today i represent san francisco liberation radio d commentators and members of the public that have listened to it for a number of years and enjoyed its resource san francisco liberation radio itself is a group of folks that have been broadcasting low power f m broadcast in san francisco involving local news local information local politics for ten years they interfered with no one they interfered with no other station in their broadcasts they provided fike vital local information public commentary political commentary to the point that they were recognized very formally and very forcefully by the san francisco board of supervisors and by then mayor willie brown in a resolution that supported their work supported their being there gavin at the time was a supervisor he said even though i don't agree with a lot of what they say i'm glad that they're there to say that resolution also directed the local law enforcement not to cooperate with any effort to shut down the station san francisco liberation radio and its attorneys through this ten year period of time have regular communication with the f c c they applied for licenses they appealed the i kept occasions for licenses they had regular communication with the agents over a long period of time they continued to broadcast until they were shut down by a raid of the f c c agents and marshals through a raid on a home in two thousand and three how did that happen the process entitled to the result is exactly the same the only practical difference is that if you get notice you've got a chance to move the equipment someplace else which is exactly why the statute provides for letting them go for it without notice the statute allows them to go forward without not because after after the process you contend you're entitle to is finished you got exactly the same result the government is entitled to use the equipment the problem is that at that point the court would have set it at the point at which we enter and at the point at which somebody is arrested without probable cause does that person have a lifetime passed against conviction for whatever offense was arrested for and the answer i think is no it isn't arrest without probable cause you may be able to contest the arrest you may be able to suppress evidence that was used in an archon with the arrest you don't get a pass from from the conviction for the criminal offense so to hear automatically there's really nothing to do about the due process argument at this point because of it after the process is received they still got the right to seize the equipment today all we have seized equipment in this really nothing to do with this point is there there is at this point because the analysis that has to be undertaken is the analysis is what due process is all about i know that you know that but the analysis that has to be undertaken here involves in our instance the instrumentalities of expression which is different for example when somebody being stopped on the street which is different for example than somebody being stopped in an airport what mentalities and evaluation of the harm the monetary harm that was done from the seizure by the government without due process and then eldorado county this is why this circuit states that an those cases coming into this argument because it's interesting to me when you read the analysis of those cases it really quite frankly can go either way they did there is a statement in there that there is no right to broadcast broadcasters do not have the right to broadcast that is granted by the f c c but if you look at the language you know you if you look at the discussion particularly in red lion the language is broader in the principles are broader particularly in red lion and the emphasis is on the public interest and the rights of listeners in they do speak in redline extensively of the rights of the listening public because that's really what the f c c is to be enforcing and to be acting upon is the right yes and if that were to occur if that were to occur there would be a big problem but we're not talking about that here that would go into the matthews analysis the due process analysis so we haven't gotten to that yet but i will at it in a moment it just doesn't because i felt that the anti grandfathered provision just doesn't include your client that's that's one problem and we would have been able to raise that if they would have used a different procedure to get us into court but you're right that would preclude s f l r but to get back to your question about the pandemonium or the crowding that would happen technologically that's not going to happen when redline in sixty nine was talking about that and when n b c in one thousand nine hundred three was talking about that danger it was a very different technological world than it is today and in fact the red line court discussed that very specifically they didn't discuss the difference but they discussed the technology at the time and the dangers in the problems that arose because of the technology limitations at the time those limitations are present in the more they're still present they just don't pose the same challenge you find a very different regime governing printed media you find a very different regime governing integrate is down because of technology changes but broadcasting is still one that's inherently limited now because of the technological developments it's not limited in the same way that it used to be you can place more stations on the spectrum but it just still limited if you had a much larger number of contestants people that wanted to broadcast you'd still need someone you need the traffic cop to keep straight who gets to be on what frequency as a result the f c c has that power to be traffic cop and the traffic cop isn't limited to exerting its powers when there's an actual conflict the system is set up for licensing for advanced approval the problem here is that your client really anticipated the developments anticipated the change in licensing anticipated a low power development in congress changed things to make it difficult for people who were the pioneers but the statute is there the statute calls for licensing unlike in presser webcasting doesn't that make this  bandwidth but there's a lot of other interest at stake there's the public's interest in getting information particularly when there's no interference when there's no harm being done to any other broadcaster to any other station to any listener quite frankly they're being fed with information and there are a lot of other public interests that come into who's to make that w clarify for me because you are to make a way in the back i mathews it seems to me that ultimately all those arguments are are sort of second tier arguments because it's the f c c not the court that's the traffic cop and to say to the court that we judge due process well that's true but i really want up coming back to the question that i started with i'm not sure that this is anything other than empty exercise if in fact the statutes empower the f c c to decide who can broadcast and who can't it's not our in front of us today agreed you're not complaining that the f c c improperly denied you a license in this particular lawsuit aggrieved and so i am still kind of trying to figure out what exactly is that really for the court to weigh with regard to seizure fact you don't have a license to broadcast so you can't broadcast and if that's the case the purported public interest mingle here signal is irrelevant because seizure doesn't speak to whether or not you can broadcast you can't broadcast you don't have a license i would beg to differ broadcasting your first amendment interest in the right to broadcasters but that out of the ballpark there is still the right of listeners there is still the interest of the public in hearing what is said but most importantly  depravation not the ultimate of the runners at that in the broadcasting context because the problem with right casting context is that if you can't broadcast there's nothing for the listener to hear really didn't matter anymore there's just nothing there in  porks in print because of the ability to duplicate the multiplicity of outlets i think the factors come out being a little bit different so where has come a statement like that in a in a broadcast context the court has address thought that there was something illicit on it and this case is mainly about pornography where there is a question and a judgment to be made about whether it's obscene or not as opposed to this where it's just a binary determination  most often find courts taking care of this at the pre season or stage because you're removing it from the public eye that's turned out of your sanity cases are the ones that are most frequently encounters right and the principle they're the key right there is that you're teaching it away you're taking it away from the snow doesn't do that it is a physically do it but you don't have a license and so as a result you're not supposed to be broadcasting anyway think that that's the way to do it that can be done several different ways that can be done through a cease and desist order that can be done through an injunction but if they went by the way of injunction we would get to raise that argument we would get to raise our constitutional argument please the court erik fagan for the united states as the sixth circuit correctly held there is no entitlement under the due process clause to notice and a hearing prior to the seizure of radio equipment mr mullen has made you know a very long case for why the first amendment sort of had some sort of weight on the massive scale but i think as the court's questions have gotten that that's simply not the case because when you're talking about radio there is no first amendment right to product cast radio without a license screen for the red line was very clear that the inquiry into first amendment rights depends heavily on the medium that's under discussion and the first amendment supreme court in red lion and follow up cases has consistently repeated that there is no first context which again is i think the court is getting at during appellate argument is a much much more complicated and for you know under the miller test there's a nine parting koreans there's a jury findings involved in that type of case you want to you don't want the executive branch making the upfront determination but the presumption is flipped in the context of radio where presumptively you need a license for the first amendment interest attached as the supreme court's made clear the government  assets a large radio equipment in this case complied with all the relevant statutes all the relevant procedures it's completely uncontested that they actually were using the radio equipment broadcast pirate radio station and therefore we think this court should affirm the judgment of district court technically a factual determination by the court but as a judge who describe it it's binary it's on often it's really easy to say is it on or is it off there's no license that's that's a factual finding this real simple but whether for example a given piece of equipment comes within the circle of what you're allowed to see or whether it's really not used as part of the broadcasting it happened to be there for something else there are decisions that ultimately are made by the court in this field which brings us to the due process issue why is that that the government felt the need to move forward and exercise its rights for seizing before the court makes the determination as to whether any seizure is is proper and that as i say i think it's a pretty easy they didn't seems there was a computer they didn't seize all because they didn't think that that was the equipment they needed seized in order to stop this particular radio broadcast you know as far as whether or not some sort of preceded your hearing was required you know we correct your honor and again the reason we need to do this ex parte is to prevent the movement of the equipment especially you know the department were to be moved outside the jurisdiction so you went before two different judicial officers why was that supplementary to whatever seizure needs to take place the next case i believe the government's practice to go before a district judge submit all the materials that we have and get the district judge to sign that right of entry so the reason why i mean that's a long answer your question the reason it being moved i mean that this radio station had been operating in a sort of civil disobedience style they had made no secret of it they had been in contact with the f c c and with the authorities with there really a concern that the that would be moved ninety six thirteen madison avenue cases specifically speaks to whether the equipment could be moved not that the government has to make some sort of showing that under the circumstances the equipment will be moved and clearly this type of equipment could be  people wanted this fight they wanted this fight and they were above board about it that stands for something and that puts to rest any argument about movable property and how that might govern the procedure thank you