observe and record during the signing process as voters come in to the polling place not to observe and record during the actual voting process as this court is well aware there are two under the first amendment there is freedom of the speech and then there is freedom of the press the two cannot be blurred the tests for the two are manifestly different in a first a man amendment challenge and here the issue is the right to gather news that type of forum is irrelevant in these cases because it is a question of gathering information it is the right to gather the news the press does under the freedom of the press who is the press the press is the recognized media who actually operate and have evidence that they are in operation as a representative of the media recognized by who recognized by their operation in a fact based of terminations that the court could make it the time of a hearing here garonne or why under the freedom of the press we a blogger could qualify as a member of the media here your honor this seminal problem is that we're going to have potentially hundreds or thousands of  bloggers into each polling location if one hundred bloggers acting in concert choose to exercise their right to bring in a video camera and polling station number twelve they have a constitutional right to do that no your honor that would not result in having hundreds of members of the media in there at any one time why not because even right they've a constitutional right to be there than they have to be because the chord in a sing and determining how the right of access of the media can set limitations on time manner and place like ten feet away from the polling station not ten feet away from the polling station your honor where that result in a bar of us being able to observe what is a admittedly public pro yes your honor and to be able to record that voting is a public process cases held that the sign in as i understand the distinction you just made you can see that voting is not a public process the actual taking of our that's right that you know we all that's one of the beauties of our system is we don't have the st leaning over our shoulder we cast our secret ballots but so you suggest that checking is a public process when supreme court has held that the united states supreme court has not addressed the issue of what the beacon journal in the beacon journal case the sixth circuit held that in the statute that the burden was on the state to show that the statute was necessary to achieve is rather to report the news specifically on the question your honor raise your honor about the hordes of reporters coming in the sixth circuit said that that is purely hypothetical and cannot support the state's proposed for its rich on the first amendment guarantee that the state conduct shall not abridge the freedom of the press they granted the media unrestricted access to the inside of a polling place they did not limited to the signing process but certainly within that grant the signing christmas was allowed the six controls obviously but if it should persuade us to do as the six circuit has done are there other courts of appeals cases that have told us whether the check in process at the polling place is a public event where the and feet is reasonable access what is i'm not arguing with you on i'm literally at what ok what is reasonable is to be able to be inside the polling  as i understand what the restrictions now it would be ten feet from that door is that right yes for outside the door and we're not even a wild to photograph in from not ten feet inside the po and you do have you do have access to anybody to anyone i should say and to the room or exiting from ten feet you are but that defeats if i if i may we do have it wrong but it defeats the ability of the media here to cover what is the most critical prosecco which is the signing and under the voter i d law has a heightened public scrutiny which is who is being allowed to vote and why are they being denied the right to vote under this law and under the in this election that is coming up in the words of the in wealth court there is going to be a soft test of that voter i d law people are going to be required to show their voter id and determine a determination will be made at least initially whether that is going to be and under the rulings of the supreme court of pennsylvania once we get past this election in this particular after we have the softest here in future elections there's going to be and richmond newspapers speak about about the right of the media and the critical ability of it it to serve is to give be able to observe the actual process not with second hand information that second hand information and coverage of the law is affectively no coverage we must be able to be present and observe and to be able to have our constitutional right to observe and report there is no expressive issue before this court and not of the where the commonwealth has gone and gone down a form path that is not more globe newspapers and the pro journey that come from it specifically public her this or you say you look to whether there is a there is any secrecy involved this who votes in pennsylvania it's among the most public information so the post is its interest is to is to make sure they claim who knows whether they're correct but they claim that there is voter fraud occurring correct right so they would have depend upon the equal and opposite interest in making sure that no fraudulent votes  finding out if people are denied the right to vote both issue for him right then if both are important then it would seem that that if we rule your way we're making every single polling place within the third circuit subject to photography videography etc and gee wouldn't is there a risk that that would have a chilling effect on on some people i mean if some people are camera shy i mean he did they don't have the opportunity to go in and say who they are and get a ballot and go exercise their constitutional right to vote without cameras snapping away at them were videographers sticking cameras in their face that your honor isn't isn't that the upshot of what you're asking if first of all under the consent order and i do want to go back to no no i want to i'm asked about the constitutional right because i think you have the first amendment right to quote gather the news right and go in there with cameras cameras trained on every human being that walks in there isn't that the isn't that the upshot of the rule that you're asking us to it is your honor what we're  a first amendment right of access and the critical right to be able to observe government and credit for this or a lot of government activities that you have no right to observe every every new digital government in this county goes into may please the court kemal alexander moritz leave for the office of the attorney general representing the secretary of state in this matter the basic difficulty that exists with respect to the appellants position this case is that while the press which now should be referred to as the media i believe we're in an age where media is being redefined in ways that we haven't seen since journalism emerged out of london's coffeehouses in the eighteenth century the media has a right to gather the news and publish that news that is their right but a long line of decisions of the united states supreme court that have provided great guidance to this circuit in the capital cities case make it clear that the media has no greater right of access in pursuit of that first amendment right then is accorded to the general public in other words they do not have a special rogue atory ability to go where no followers citizen i think walk into the polling place actually you could not under our statute which has been in effect for seventy five years unless you met one of the itemized categories you know in the hypothetical that i get you have areas that this is the polling place so i'm i'm i live in new jersey if this were the polling place you telling me i couldn't get through the door well you certainly could get through the door but at that point you'd have to make it clear or someone one of the members of the election board would need necessarily to find out if you work a voter if you were intending to vote if you were there to assist a voter if you were that's that's unlike any polling place i've seen them to get i could i just like get in line and when i got to the front i'd say i'm from new jersey that you're in the wrong place but i've i've seen that that way yes if you went into the line you'd be in the line for people waiting to vote which is one of the item jersey things are different i'm sure elsewhere in the country but the the polling place in pennsylvania under rule thirty six d is in fact tightly restricted in terms of where you know pal of the judge of elections comes in with coffee and stands in the corner sits there and you know isn't isn't that part of his argument that this isn't police properly well that may be part of his argument but part of his argument has always been an effort to try and create a straw man that he can conveniently sue for purposes of inforce many of the needs he seeks for his client the fact is as we've discussed in this br well pennsylvania has a bottom up system of administering the elections the judge of elections in pennsylvania every single precinct every single ward that judges an independent constitutional officer can only be removed by each night and they paid by the way they're paid their pay much they may there's a there's a particular statute that itemizes them they're paid by the number of votes cast in a particular precinct t secretary of state we certify elections where your argument is yeah the guy with the coffees there who knows what goes on it's not our fault we you know we're not not we're responsible for those washing your hands of that that's your love that's another point in this case and you you have the transcripts you have the pleadings you've you've read the briefs but i'm not here to stand up and say that i'm here to stand up and say that their first amendment rights have not been violated please take a look at your capital cities case please take a look at at at another case how is thirty sixty four thirty sixty d is in force by thirty six the f which says the judges of elections are responsible for enforcing the provisions of thirty six d d hat how do we please the judges of election the judges of elections are capable of being policed in terms of the governor asking for their impeachment they may also be policed through what i consider to be a legal fiction that emerged necessarily out of pennsylvania case law in the early twentieth century and which someone can go to a judge of the court of common pleas and make a case for how they're behaving inappropriately the court of common pleas judge can then declare the office vacant because that person is disqualify themselves and then they can have an ad hoc straw poll and elect and put somebody in right there now the judge of elections in in force make it specific we provided in the section thirty sixty f with the ability to call upon police and other public peace officers and constables to make sure that the restrictions on access to the polling place are inforced and that's that's in fact now obviously there are going to be vagaries and for wide use of enforcement and across the commonwealth in a system like that which is managed by the very people in the very place it's the most democratic system you could think of where votes are being cast it these people are a little bit like district attorneys they are within a very limited geographic area responsible for the enforcement a pennsylvania state loss and that's that's the six that's the system let me put it on the beat in case the beacon case is if we follow it or you're in trouble if you if you are along the way we're in trouble in a variety of ways because not only would we lose the case but you'd be following a case that has no no support in its own text that has never been cited by anyone else in the eight years it's existed for that particular principle that emerged out of a very hasty situation that we've demonstrated for you with no briefing in no argument the primary point which mr frank alluded to in beacon journal is a citation to the detroit free press versus ashcroft and in that case they say democracy the hide behind class closed doors well isn't it interesting i suggest that that case is in fact the case that determined in the sixth circuit that the restrictions on access for special deportation hearings hitler creating terrorism and al qaida should not apply and subsequently your court in north jersey media group versus ashcroft at three o eight fed it fed second third one ninety eight in the same year rejected the troika free press versus ashcroft so and you rejected it specifically in terms of your capital cities case what is that test that test your case could not be more clear it is very elegant it's very effective i suggest it first is there a history of it tradition of access to a particular place if there's no history or tradition we do not have the validation device of the judgment of experience polling places there is no history or tradition for the last seventy five years they've been at least theoretically i don't know what what ma barker might do in some precinct in each a bit but as far as the law is concerned they have been places of restricted access so this is your argument is well placed in the room is not public or is outside the door public house outside the door it's a public form after ten feet and i may to say one more thing about that your honor that is that mr frank my learned opponent i suggest is wrong in the sense that he says somebody could stand in at ten feet and take a picture in that's what they want in two if they want to look in from ten feet and they can take photographs from ten feet then they have a right to do that that that's never been set aside that's judge james's ruling and it's in the briefs so i don't know where they get that idea i'm i've never advocated it and i don't know anyone who has they have the right or sort of a public place they can behave like public people were absolutely smart phones cameras they could do whatever they can do from ten feet so let me ask you this question ten feet i say ok open up the doors my to come for is open the doors i can just snap away correct absolutely joe you know lections going to let them just hold the doors open all day i don't know they has ever held clearly known unequivocally that it's a public form including beacon journal beacon journal it's very strange because it makes a reference to the united states supreme court case and it's strange because it was started in the on november second and it was amended in the sixth circuit on november fourth and i've given you always some of the biggest outlier of all time i get yes and but but you know it was much faster than what you've done to us here thank you oh it wasn't meant to be a cal well might my learnin opponent and i have tried to be is as comprehensive as we can and presenting are we take our cases as we find them i if indeed it and we're happy to be here in that sense to have the final decision made well on that topic do we really in light of this mr frank referred to as the soft roll out or perhaps the state court referred to this is that you need a decision between now and election day well for one thing this is a twelve b six motion so even that far you could go the other thing is soft or not that's exactly what happened up through september seventeenth two thousand and twelve by the statute at any election that took place after the statute was an act that for instance last may they asked if you would show your id and made it clear that you didn't need to but they you know they were just doing a dry run for the next time that's what i understand is going to happen this time to get back to your capital cities case the second prong is the purpose of the of the function of the place where the access is purportedly restricted in other words would opening it up make it a better polling place and that's where we go to the type of  you're on or just heart of been brought up i mean i don't i think we would be in deeper first amendment water if we start talking about the post is that is is is is going to be license to go in but marty the blogger isn't going to be licensed to go with mr frank conceded that the bloggers are allowed in well i'm not sure that demarcates who the press is i don't know who the media are who the press are i mean no one was my understanding was that the freedom of the press meant that any person that could had the where with all the put something on paper whether it be poor richard's almanac or commonsense or any other thing could could do so i if you read this agree not in the least i so into it if we translate that into today's world anyone who wants has a computer or a pencil or paper or camera who yes who has an interest in these matters of public importers the press or the media do you agree with that i agree with that somebody who's a freelance writer think the bigger problem would be would be making distinctions among people of the media i'm sure we could not do that so i actually want somebody comes in with a reason with a pretension  anymore it's all much less colorful but it's also you know c n n and all the different local news outfits all over the country say you know send us your news we'll give you  sort of benefit for some sort of video you can send in that shows a tornado or whatever i mean i don't see how you could make any sort of limitation on the purpose of the polling places quite clear the purposes for secret fourth district said that would fail even under strict scrutiny because at at it's at least conceivable that somebody would say i don't want you to take my picture and maybe the person would be too ambitious or maybe they would be too pushy or maybe they wouldn't hear them and then there would be an argument and then you'd have to go to the judge of elections of the minority clerk and say this guy's trying to take my picture and i said he didn't even when you didn't tell me that i didn't i want you know this kind of argument and refereeing is going to be disruptive of the polling place person is that problematic to your public forum i t's not problematic to my public forum houses because it via dealt with in fact a public forum one hundred feet outside of a polling place under the tennessee law that swept broadly enough to touch sidewalks and streets which are quintessential public forums and consider polling places are located all over the united states other places of public gatherings so the question was how would you justify this restriction and the plurality in that case applied strict scrutiny to justify that restriction to electioneering but justice scalia said he didn't think the sidewalks and so forth outside of a polling place were a public forum and the can to make us all leave with our head spinning the sixth circuit the same circuit that held and be convicted journal that you should let the newspapers into a polling place agreed with justice scalia in the city of sydney case that the streets and sidewalks outside a polling place are not a public form i think they are a public form and i think they would be subject to strict scrutiny but i don't see how burson affects inside of a polling place and i think ten feet is tantamount to saying inside i would county wanted to put in place here as the representative of the board of elections here on a limited basis with various constraints upon the media in terms of what we can or cannot do and what we're asking i of least preliminarily for this election the consent order which is the bottom up person here in allegheny county said could be accomplished wanted to have the media and they if the judge fisher refused to enter the carry the day you need to persuade us why she was incorrect in her legal analysis that the decree would violate state law what's your human because your honor this court has said in the sense in case that one can get relief far beyond what you could achieve in the actual action and said that even if these the statutes wouldn't permit it if the parties by consent and particularly an agency exercising its discretion wishes to do so then you can grant it could and more but the fact that you can do more isn't the same as doing something that contravenes state that we believe he says that that a consent decree involving the secretary of state extending then the consent order can be entered we have certainly raised an appropriate first amendment as applied to challenge here that it would be within the confines of globe in the other cases to find that the consent toward or it's not is appropriate and of the first amendment rights of the media here and that's what we're asking for