thank you may it please the court miriam casper and behalf of the city of chicago and this morning i will be sharing my time with mr pollack astutely on who represents the county of cook who will take about five minutes when the chicago city council decided to take steps to foster production of find live performances in what is commonly regarded as the fine arts it found that small theaters and venues often produce innovative creative new live performances yet have the most difficulty passing on additional costs and may not be able to flourish without government support the city council determined that it would provide the needed support through an exemption to the city's amusement tax as a result patrons of live theatrical musical or other live cultural performances held in a venue with a capacity of less than seven hundred fifty persons are exempt from the amusement tax poo bah is an adult entertainment cabaret like most other amusements in chicago such venues don't generally foster production of innovative life fine arts performances or need the government support in order to flourish this morning i will explain why the small venue exemption does not violate the first amendment the united states supreme court has repeatedly held that when the government elects to subsidize speech it can spend its money as a vicious even if it makes content based distinctions or takes content into consideration when it determines who will receive the subsidy that is the hol of reagan of rust in a family to name a few cases that we rely on and that principle was most recently reaffirmed in davenport which cites reagan for that exact proposition when the government directly imposes regulations or tries to restrict speech however that's a different situation because there's in that situation there's a risk that a content consideration will interfere with the marketplace of ideas but when the government is not regulating speech such as here that concern is attenuated at best that is why the court has upheld laws that permit only some nonprofit groups to engage in lobbying with government  reagan but not others that require government funds only to be used to promote childbirth in a friend family planning counseling and for bid discussion of abortion or regulations that permit the government to consider whether grant application meets general standards of decency and respect for american beliefs and values that's finley none of these was was deemed impermissibly content based or subject to strict scrutiny because there was no indication that the government was attempting to suppress any ideas and the courts make clear that encouraging some speech does not suppress other speech so there was just no first amendment concern at all the small venue exemption is not materially different from the raws that any of those cases presents no first amendment concern either the city offers a subsidy to small venues that produce live performances in what is generally considered fine arts to advance its policy amusements that do not fit the policy are not subsidized they don't need the government support to flourish and they don't foster the government's policy adult entertainment cabarets in fact are recognized not as the news that encourage present new and creative life theat performances but in fact spur negative secondary effects in the surrounding community as this court has recognized and that just means that they don't foster the city's program so the government doesn't provide them the support that small theaters receive your own or the way to cases break down content neutral versus content based those are used more as terms of art so to the extent that the city's policy is aimed to add foster new and innovative fine print finance performances rather than suppress any speech which is how the court describes conte as i'm sorry i didn't hear ok it wouldn't matter what label to put on it at all your honor our point is that in all of the cases when the when the government takes content into consideration as when it's necessary to define the parameters of a policy as here there is no first amendment concern raised at all and now that could be called entertainment dancing while you're on our primary submission is that you know to the extent the content is taken into consideration that's not a first amendment problem settled i think i agree with you well content is taken into consideration to define the parameters of the policy content neutral to the extent that means the government is aiming at some purpose other than suppression of speech then this would be content neutral  suppression of speech air and while the exclusion refers to adult entertainment cabarets that puts them you understand that there probably would be people in this room that disagree with that that it's not it's not speech base yes i think the term ok so i have a question a just in case question ok you know assuming that that's true what what is the strict scrutiny we would follow isn't that correct if if a court were to determine that the exclusionary the exemption was content based impermissibly an aim to suppress expression that would be a law that would have to undergo strict scrutiny but of course our submission  that understand right that you disagree with that i'm just asking questions understand what would be the compelling state interest if we did travel that your honor first i want to note that we that the issue whether strict scrutiny would be met or not met has never been litigated in this case at all so if the court were going in that direction we would ask for remain and we filed a motion to dismiss the made the same arguments are making then make a back up argument that well if the court thinks structuring implies here's here's why we need it because we didn't have to have so and then senator graham to that point you think we ought to be and that's right not conclusions of law or conclusions of fact but true and we expect we accept that the general principle of law in our position is that this complaint does not state a claim on the first amendment  briefs that rational bases and to be true or no review at all is appropriate what is our position is that this case doesn't implicate first amendment concerns at all because there is no aim at suppression of speech at all in the ordinance and therefore we don't argue for a rational basis nor do we argue for intermediate scrutiny and i point to strict scrutiny doesn't apply either the court  limit or restrict a particular kind of speech based on its content because it disfavors that sort of speech when you're given a very close that i think that's a phrase that the county used and related to that our submission is that the city has a policy of wishing to foster to go to adopt free not necessarily i mean i think all it means i don't have anything against it i think  performances at small venues because the idea is you have a set the city wants to be like new york and these things will spill over and there will be development around these new theatres and the city will be known as a place where the fine arts thrive will have new and innovative production whereas and so and so those are sort of the i guess positive secondary effects to call it that but we don't legislate in order to reduce or you know promote any secondary effects the point referring to secondary effects as in terms of adult entertainment cabarets is they are recognized in all of the case law as being establishment that offer certain kinds of amusements that just don't foster the kind of policy that the city is describing here instead they bring with them negative effects in the community could be if it looked like there were so many you know exemptions and exclusions that it turned out that only a small group was paying the tax but i think it's important to point out here that you know there's two categories tax and not tax and what happens here is the don't entertain me cabarets they're taxed along with pretty much nearly everything else including speech related amusements in chicago  while it's possible that a system could be set up to reveal a name at suppression of speech for example inspires or a case that got cited through the briefs there was a there was a law that required people to sign an oath that they would not advocate overthrow of the government in order to get an exemption and it was clear that the government just didn't want people saying a particular thing here there's nothing like that here in fact in erotic performance or nudity or anything like that that could happen at a small venue the city doesn't go in and say no now you're going or you're going to be taxed now that you're showing that particular performance it just doesn't operate that way so there's no intent to suppress erotic speech or adult entertainment cabarets who just get taxed along with everybody else amusements they offer are said to not read them foster the kind of policy the city is wishing to foster in advance here they bring with them negative secondary facts to the surrounding community so rather than develop new and innovative fine arts performances rather than provide an exemption to adult entertainment cabarets or any other venue that doesn't foster the city's i'll say the city has this parameters know again i think that's a particular argument that the county makes but as far as a certainly this court can look at any prior decisions including its own i repeat no our position is simply i don't think i don't think judicial notice would be necessary and or i think it's well established in the case law not just in a prior poo bah decision but other supreme court cases about the sort of effects that adult entertainment cabarets bring to a community so i don't think it's tied in particular to the last decision but it certainly those kinds of ideas are in that opinion now one other point i wanted to get to is that poor seems to claim that a subsidy is not the same thing as a tax exemption so that if the city administered this program through a subsidy things would maybe be different but of course that point was squarely rejected in the reagan which holds that for first amendment free speech purposes there is no material difference between the two who by has not raised either of them as an alternative ground to affirm this ordinance as we stand here today will rise and fall based on the first amendment claim alone because that is the only claim that process it was up to prove out to raise those agree i don't think so we did raise those speak cuz i mentioned in its a p l a that they planned to address them as alternative grounds so we wanted to you know start litigating those issues because we thought they would be before the corporates expressed the put us expressly disavowed any reliance on those claims anymore so if we if we go along with your argument would it be appropriate for this court to reverse and remain to the souter those other issues i position is that a re man would not be required or appropriate because those who are poor by us claims to raise as alternative grounds this court can it was open to this court to decide them  county have advance to explain why this tax is not implicate the first number i would just like to briefly address a few issues at play this race and some of the questions the court is probably less than five minutes here i can do that  i get i suppose a city as well which to subsidize activities that would not now would not cause those type of negative recycling affect secondary effects but rather would promote policies about the economic growth better a better  plays infect the the small venue exception the definition of life theatrical performance excludes sports which couldn't fact include something like figure skating ice skating subsidy that's simply not correct the cases they cite walls and camps new found are not three speech cases was an establishment clause case camp's new found as a commerce clause case the interests regarding the government granting a tax subsidy in those cases is different than what you would have in this free speech clause the concern with the status from clause or the commerce clause would be government entanglement that's not to say that same interest not implicated in the free speech wasn't very clear looking at reagan and looking at reagan even says it now it's just a tax exemption is not a tax subsidy for all purposes but the holding of reagan was that it was a tax exemption was a tech subsidy for purposes of free speech clause which is exactly what we have here now reagan i would point out your honour's does not apply any sort of standard of first amendment review neither does rust and  congress half its congress aside to subsidize non lobbying activities that the first amendment required and it also subsidized lobbying in the courts said no but clearly lobbying is something that comes within the purview of the first amendment so  required the taking of a loyalty oath to qualify for a real estate tax exemption there was a definite temp in that case to suppress speech by by by the in an individual that's not the case here that was not the case reagan ross thank your honour's david epstein for who bought counsel or counsel mr chief justice members of the court i would like to start by quoting the city in its brief which i think intentionally or otherwise capsulized the issue in this case which i think several of the justice have already identified the city says at page fourteen that it does not dispute as indeed kenna that singling out particular speech to be taxed presents a first amendment problem that's a d quote that's true that's what this case is what the city and county have done in their ordinance as their ordinance was amended in i believe ninety three  presented in small venues so they created this some class and then what they do is they discriminate and they create a differential tax based as i think the court on the content of the entertainment so he doesn't like the content it's taxed city favors the content as they said that's their purpose that's their motive they exempt the tax but they do that within the so class no they say well we can do that without implicating the first amendment they say for i think what comes down to now  reply briefs and their argument to the court today for three different reasons all of which are dead wrong but they are discriminating they are discriminating by content and they say they can do it because they have a legitimate government policy of wanting mode of wanting to subsidize fine arts of the cities as well as long as we don't have bad motive which by the way we would not concede but they say because we don't have bad motive it's ok wrong the issue as the cases say particularly the tax case is what is the effect what is the law doing and what it is doing when it well it means it means that it is not quare first amendment protected speech as is political speech as is social dialogue but it is still protected and for regulatory purposes which this court has addressed in any other case there may be different standards but for discrimination against speech the fact that this kind of speech may be on the outer outer ambit of protection means it's still in the orbit it's still protected by the first amendment and cases most recently playboy the most recent one clearly and that was i mean in pap's am i believe we had nudity there which we tossed out on its ear under strict scrutiny and and that was not an issue so i think we're way past any argument and that basis which i also point out the city and the county don't even advance in this case they don't say that they're exempt because of the nature of the speech even they don't argue that but what they do argue was essentially three things first they argue well because we're not discriminating across the board poll we have movies that are allowed we have we don't discriminate in large venues only in small venue therefore it's ok to discriminate in the subclass that's a silly argument you can't say well we'll discriminate racially or religiously as long as it's not in every county in illinois well we'll pass a speech discriminatory law but will we won't make it universal will create some exceptions a little illicit first amendment discrimination is still discrimination and it still address the subsidy argument because i really think that that's where today's argument seems to and i think your question addresses that justice thomas the arguments of the city and county based on reagan was  and then the later case of  devonport i'm dead wrong there hundred eighty degrees wrong it's quite remarkable those cases do not hold not one of them first none of them hold that a tax is a subsidy is a attacks in some respects is like a subsidy a come back to that cases have rejected the argument that you can get around the argument on the subsidy versus tax issue for a check that's been rejected by the supreme court in a number of cases including the and they take issue with us but including in turner broadcasting in the camp's new found case which they correctly say is  there is no one case no one case that says that government can make a content based discrimination in a subsidy even where it's a real subsidy reagan giving money not not tax with all due respect not taxing maybe like a subsidy it's not the same thing you can't spend you can't it's like my wife going in and saying well look at the sales going up i can buy a thousand dollars worth of clothes for two hundred dollars eighty percent sales funny you go buy the clothes for two hundred dollars can you spend the eight hundred dollars is the story give you eight hundred dollars no no it's a construct number so it's not a real subsidy it's not money but but rust and friendly were real money cases and even though they are the court said before facial challenges it's because they're important it's ok to be cause there is no content based discrimination if there were a different story same thing in raided which was a tax reagan looked at the five zero one c three and the five zero one c four exemptions from the federal income tax code and they said well you don't have to give an exception there for work lobbying activity lobbying for against particular points of view not making certain speech any lobbying any activity here if they had an exemption for all dancing be a different story it's not all dancing it's not all lobbying it's some and how is the some different you have to look at its content in fact what's very interesting the city in the county ignore the analytical key that the u s supreme court has handed down which is a little unusual it's not nice it's unusual in the sense that it's not the way we usually as lawyers think about things the issue is whether the justification for a restriction or something that operates whatever the intent is that operates as a restriction on speech or expression the justification has to be how to neutral without reference to content well what's the justification here the justification here is to promote the fine arts well that's a kind of and based distinction and i think the has now said and a little bit to discourage what they say is not the framers the the semi naked dancing with you that's a content based distinction and i understand how me understand its content scum nation want to violate the first amendment if the city exempted programs that were directed children under the age of ten years in order to courage more families are just  exempt from from what from from x no i don't think so that's not a content of the age is not a content based criteria it's some class curve but it's they can discriminate on all kinds of rational bases but not the content of the message that content of an idea not the content of speech or expression and the city and the county's analysis is always one step short of that and your question is a wonderful question because it points out the distinction you can discriminate by age we don't take issue with the small venue large venue distinction which you know i muffed it makes sense but we don't take issue with it is not a constitutional you know what else they tax what else can they text you know there's a lot of disfavor speech around by the way some of which we might all agree we don't like  there are some radical speech that some of us may even feel is dangerous but if you discriminate on the basis of content you're opening the door of this will never close and in the two hundred and some odd years of this republic the u s supreme court has been firm differential taxation on the basis of content you can't do it he cannot open that door but you can read the cases again involuntary union contribution to nonmembers for the union's political purposes that was content neutral it was any political purpose not certain political purposes so was treated as was was it was treated not a strict scrutiny was treated as intermediate scrutiny that was a regulatory ordinance and the courts characterization in that case was that  distinction in that case was has to look a regulation and if you accept as the court obviously did except that characterization then the secondary effects analysis follows from that and if you apply the secondary effects analysis there's a series of balancing and you come out one way or the other as this court did that's a very different analysis than a differential tax this has nothing to do with liquor there is not a separate which might take it out of the content based differential tax analysis here so because it was liquor there was a different analysis and it wasn't that it was tough just to i'm repeating myself i obviously wasn't that it was totally contineu traill but it was it was a atack it was a regulation that fits within the secondary effects analysis which the supreme court has said is an exception where it's applicable here they're not advocating this we don't have a regulation here we have a tax but we don't have an argument here nor can we that this is a secondary effects and now it's like the city i think has explicitly think the question is is there anything there that would be pertinent here i think the answer is no it was six one five zero yes it comes here on the allegations of the complaint here which i see which by the way do not go into the cities mode i mean we do not i mean if we i suppose if we if we lose here that would be the next step for us if we went back would be to allege that the city does have an improper motive which while it's not necessary to make it unconstitutional and improper speech suppressive motiv would alone make it suppressive but that's not before the court here now before i forget to do so i'm sure t more questions i do want to quickly address the procedures it is our position that should the court reverse and of course we think the appellate court got it exactly right and this court should affirm but should this court reverse and i think justice freeman's question before and chief question before the only issue here is the first amendment question and i suppose the tagalong illinois free speech clause argument which is a tag along based on the decisions this court and that's in that's the only issue here because that's the only issue that the city raised city is the city and the county are the opponents here we won and everybody forgot we won in the appellate court but we lost play trial court so the question for us was do we raise these other issues and sort of dilute the attention of the court in this appeal when the city didn't appeal on the other state issues and we decided no we shouldn't do that in part because we would be asking this court to address those questions for the first time on review when really they tell a court has not addressed them but it presented an interesting dilemma because we could have raised those issues but we would not be raising had we raised them we would not be raising them in defense of the trial court's decision we would have been raising them in defense of the appellate court's decision even though they never addressed and after we thought about we said that's a little unseemly and we don't think that that is a good procedure i would only advise the court that we really didn't find either in the court's rules or in the president's any clear direction on how to proceed we thought that was the best way to proceed so in the event that this court were to reverse we would ask that you remain to the appellate court for their determination of the other issues before it would ever go back to the trial court for a restart the only other thing i would address on the merits of the case and i can do this very quickly is the government speech doctrine which only the county has advanced the city abandoned that argument in the appellate court and i would just say that it's i think it's very clear here that there is no government speech in here it's a private speech the later cases interesting lee they cite the seventh circuit case the the choice rights case for says jesse white which was the license plate case which i think is a perfect analogy there you have license plates the government was actually publishing a license plate distributing it presenting it to the people it's a government paid for the making of the license plate to charge a fee for it but they think and the court said well then who speeches it and of course it tax there's a message there so it's government speech if we regulate there's a message there so that's government speech and certainly if we subsidize if we spend money that's a message so that's government speech now i think we'd all agree when we make war there's a message there to the enemy so that's government speech so what do we have we have taxing spending regulating and the national defense that's pretty much all the government  of course and of course let's remember the first amendment only applies to government action so the government speech argument as it's made in this case it seems to me is a nonstarter and i think that that covers the ground we come back to the fact that this is maybe like a subsidy it's not a subsidy whether even if it were a subsidy you can't discriminate on  so we're left where we started the city's original my quote from the city's brief if it's a tax on selected speech it raises problems this one raises problems it's that when there is an intent to suppress that that's what the court is looking for and that doesn't have to be an express motive stated it could be the way the law is set up but neither is true here  adult energy there is before us either is or one of the question whether the city's ordinance reveals an aim to suppress speech is before the court and it does not as i mentioned adult entertainment cabarets are taxed along with all other mens they are not singled out to bear the burden of the tax as the cases that are relies on reveal such as arkansas writers and minneapolis  r even erotic content is not targeted to small venue that does fit the exemption is showing a performance with erotic content or nudity it would still receive the exemption so there not any indication whatsoever like in spies or that there would be the government saying we don't want people we disfavor radek content the city doesn't wish for anybody to speak of it and so we've taken these steps to try to reduce it in the marketplace of ideas there's just no indication of that here at all council also attributed i think to me the statement that there is a attempt to discourage this is more of the same point the case was clear that encouraging one kind of speech through subsidy in a program the way the city is designed doesn't intend to discourage or suppress also i want to briefly address counsel's point that there is no case that stands for the proposition that a content based subsidy can be made and that regan doesn't stand for that proposition either now we explain in our briefs why back construction of reagan isn't accurate but importantly in davenport the court said no if the court could just bear with me it's worth reading it is well established that the government can make content based distinctions when it subsidizes speech citing so it's not our imagination but that's the way reagan is being interpreted i mean we provide explanations in our brief of why davenport's reading of reagan makes council also mentioned that it was up to the city to raise other claims for it we're not aware of any doctrine that would require the defendant to raise the plaintiff's other claims in the p l a in fact this court's case holds that it doesn't have to be those who are alternative grounds or questions of law that are open for the court to decide finally on the point about government speech we explained i reply brief  that the doctrines involved with those principles work we did rely on those we've relied on those all along but importantly it we don't think that we think that the appellate court merely construe that doctrine when the government speaks or when it tries to encourage private speakers to convey its message or when it legislates to advance a particular policy of its own by creating a subsidy the government speaks went and all of the same doctrines apply whether it's called government speech or whether it's advocating a particular policy or program like and roster in reagan or in finley where the government to find a policy but there were private speakers speaking in family the artists themselves were speaking  and here subsidizing private speech will promote the city's policy of enhancing chicago's fine arts culture you can call that a message to that the fine arts thrive in chicago all of it sort of comes down to the same basic principles and for all these reasons your honors we ask that the judgment of the appellate court be reversed thank you the if the if local government or any government wants to subsidize one activity one type of speech is not compelled to subsidize other types of speech as well and it doesn't matter that you