two thousand and nineteen ban bars jerry monroe and only jerry monroe from making any quote offensive or derogatory remarks about any h i s t board member or employee unquote i viewpoint discriminatory so the court could rule that the content viewpoint discriminatory nature of the july th two hundred one thousand ban specifically its prescription against mr monroe making any derogatory or offensive remarks about h s t board members or employees that that is a violation of the st amendment and it could join that part of the band it neat can split it up in little parts and enjoying parts of it and then say other parts are permissible well the door is not the school district has essentially conceded that mr monroe can come back on to every part of its campuses except its board meetings and extracurricular activities so if they say if the school district administrators desire to have him come back that's essentially what happens with every person's all you you want this to enjoin derogatory or offensive absolutely we believe that that violates the supreme court's commands in our oath in our a v versus city of st paul it violates my towel versus tampa the supreme court has held over and over you cannot  favor certain topics when it comes to political speech this case have anything to do it all with the april th ban at this point we're not dealing with whether that was an appropriate ban for prevailing party purposes or any reason or some you know h changing your policy then it that's before us right april th ban it is only germane to this case with respect to the issue of movements it's not before the court here today in terms of the plenary of briefing before judge or a line on the issues both pre hearing and post hearing so there are a number of memoranda that we submitted addressing these issues to the hearing is on july th the hearing i believe you honor occurred on july the th i think that's right and so what i'm confused by is that no point have you actually challenge in the district court the july th being that you open the argument with that you would like us to rate so you're here on a prisoner injunction appeal of a thing that was never challenged below actually your honor we did challenge the july th and we challenged it at the hearing because it was st modified they they came in on july the ten with a the july th hearing or when the thing that you lead the argument with here this afternoon is you would like an injunction from the th circuit about a ban that the district court talks about in the junction order obviously but was never challenged me about that can we go back to that because i have to think of the opulent life case we have about where they change their position in the middle of the hearing and whether or not the elder one is moot so your honor our position is still remains for the district court to adjudicate at a final resolution before i mean what do we need to rule on the movement or do we only need to rule about the injunction because that's why we expedited this is that correct is correct your we just leave that alone april want completely leave it alone if we agree with you that the few lie one is properly before us if we think the july one is not properly before us then what if we did well the judge or line clearly appealed from the denial of the pool in every injunction and you're correct we asked for an expedited hearing which your honor granted so the the july th ban is what is squarely before the court now for the purposes of the preliminary injunction and that's when you filed that before us about for us to take emergency action correct in that those pleadings said it was the july th one that you were taking emergency action and we did not grant you relief on the merits but we did expedite is that and that's why we're here now today that is correct your honor ok so the the language of the july th two thousand and nineteen ban barring mr monroe from  aging in offensive or derogatory remarks is per se under our a v versus city of st paul and mattel versus tam a viewpoint discriminatory ban that's the most egregious of content nature supreme the that but before i get there your honor there there is also this issue of prior restraint and as the court knows a prior restraint is has a heavy presumption of unconstitutional which the school district must overcome and to do that they have to prove that mr monroe's conduct poses either a clear and present danger or a serious an imminent threat to a protected competing interest  since they've allowed mr monroe effectively to come back on the campus if administrators will meet with him they can't show that he poses any clear and present danger at the present time or any serious or imminent threat so it's it remains to be adjudicated as to whether or not that content viewpoint discrimination is constitutional why ab so assuming argument and i know that you don't agree with this but assuming argue that the ban is overbroad because you could say you could say the principles are great but you can't say they're an idiot and i'm not saying that the principles anything about the principle so the seeming that is that is viewpoint discrimination or it's too broad because neither one of those are true threats in any case but there are some assuming arguendo that the district court found that there was a true threat by part of the statement what happens what result that's why if this is much more difficult in a court of appeals than in the trial court to figure out if you would tailor this if you believed it was had some give and we don't have the liberty as far as i know to to sit here and craft something for y'all that it's constitutional if assuming arguendo that it's not constitutional as it sits there i think your honor if that is the issue is now effectively been forfeited with all due respect by the district by allowing mr monroe to come back on to all campuses in the district as long as administrators will see him they have removed any argument that he is gun finger illegibly then what if he is threatening with his gun finger but can he still not say that she is a bad principle your honor they can it's always impose reasonable time place and manner restrictions on mr monroe's speech what's at issue here is the content do you point discriminatory nature of the ban so if he were to be acting out in front of the podium they could gavel him down they could turn off the mike they could remove him from the podium as happened in the april two thousand and eighteen board meeting they could remove him from the premises allt they have a number of less restrictive means here of dealing with any quote unquote threat that he presents so articulate the desired disposition you're seeking we want to pull women are really enjoying the july th two thousand and nineteen ban we want in order from this entirety at least as to the content viewpoint discriminatory nature of the offensive derogatory remarks that it prohibits him from making so you know are the parts at the sorious content nature a content discriminatory ban they don't say to everyone else you can't come in here and make offensive or derogatory remarks they don't come in here they don't say in their policy you cannot wear clothing that contains offensive or derogatory remarks i'm sorry from your brief i thought that this was the part of the july th being in that you believe this content based to do that your interview judge will it understood was you want a preliminary injunction on the content no doubt at all judge judge were aligned at the hearing essentially instructed the district to revise the july th letter to remove certain parts that dealt with attorney client attorney communication settlement communications they then came in with the this afternoon my please the court i was going to start off with the old adage that the record evidence for itself i think that is extremely true in this case for two reasons number one we do want the record evidence to speak for itself and we obviously took note of the fact that the court ordered the district court to forward the videos of both april th and april th like me has that to begin with your honor this is something we can have an  conversation about the procedures i can tell you i contacted the clerk's office here to see whether for example we could submit those record excerpts from other time i don't want to take you know but it is an administrative issue and i want you to know that we did we did try  question correctly indicated there was the initial criminal trespass warning that was issued a criminal trespass war warning was then modified by a letter dated july th of of this year judge were line expressed some concern about some language at the beginning of that that talked about whether it was made it sound to judge or line is if it were conditional i represent a judge in court that it was not conditional judge were line asked that that  made explicit in the in the letter that's why the july th letter was issued and but there are two points that come from that number one is that the language that they're pointing to derogatory and offensive language being used is not part of the criminal trespass it is as judge told them as you were getting to in that letter it is part of a of an explication i'm going to refer you all back to the st child case because in the st child case as you remember this court held that certain types of content based restrictions in the context of board meetings were perfectly appropriate in that case your call judge it was a case where a teacher's aide had been fired she wanted to talk about her case in a in a in a board of trustees meeting and an opinion authored by judging a bottom i believe it was that the court found that that was a perfectly appropriate content based restriction other words we shouldn't be naming and trying to shayne individuals what were their administrator or teachers or students that's not the right form and way to do that well so a hyper can you say the principal is a terrific principal they do so much does the so much for our students can you say that at the school board meeting there is a there is a place in the in the meeting for what's called compliments or concerns so somebody wanted to come forward to say that i have a compliment to someone they sure could could you say the principal does a terrible job and is not concerned at all about the students a plus they're stupid and they don't have the right degree like it is what you're pointing to is something that could under the law fairchild be appropriately not allowed asking what is haleigh he needs to have a clear rule so that he if it's a speech a prior restraint a speech in the snow but clearly one knows the rules because i'm asking why i don't know the details and i've been studying it clear from the record that he does because there's evidence right record evidence that he said i knew i should not be enabling individual it is ribble can you say the principal of this school is an idiot and lacks the proper degree judge you do not have to reach that issue in this case because that's not part of the injunction or is it the injunction your honor in that is goes to your question in the us too early on is as to the package that occurred and that's so so my respectful point back to the argument about well if we just take this piece of what he did we take the fact that he wore a t shirt with the teacher's picture on it that said principal so and so needs to go she don't like the black people we take that piece and we say well that's like somebody wearing a an armband or somebody saying f the draft on a t shirt but that's not what we have in this case we have in this case and that's why i say the evidence speaks for itself we have got a situation your honor we're a  man is completely out of control in terms of his conduct both in an internal meeting and has to be a meeting in which his conduct was so outrageous so disruptive that somebody from outside  closed conference room had to call the h i s t police to come in you have a situation where a man is sitting across a table from two highly esteemed h s t administrators one of whose a p happen to be african american saying i'm fixin to send you back out to the fields i'm going to burn this g d place down slamming his fist on the table throwing things down and so your honor that's the record the judge we're line had to deal with in my what is the rule about so you're going to tell us that there is no rule about whether you can say the principle that you don't want to answer that's going to be just going to be on a case by case basis i guess and i do to answer your question but to judge all those point that rule is not has not been subjected to challenge here well it what the the ruling that you all have in front of you is a ruling that gran starting in january we may be presented with a whole new set of issues depending on how he chooses to conduct himself and but we can't but i guess my respect for point is we can't prejudge any of that i don't i don't know what you have to narrowly tailor your rules to try to be constitutional when you're in the public that it's probably a good idea to look at them every once in a while of course and they do and in turn your point judge i mean these are rules that even saw them quoted by the acronym label in other cases that this court is deal is dealt with these are not kind of written on the back of these are rules that have been established by school districts generally and have been applied and and and and and  i don't i strongly believe in h s t strongly believes that it puts up with a lot at its board meetings i think you heard you saw the record evidence where i asked mr monroe about him bring in a noose to a meeting and bringing him into the into the boardroom and actually putting it around his neck while he was talking now is that something judge that you and i would consider to be offensive absolutely did that result in a criminal trespass warning no a there is evidence that there's been a lot of other speech and conduct that did not give rise to your point to a criminal trespass warning but but but but my respectful point is we've got to look at the entire package ok can we i have a couple  questions about the evidence for the st question i have is do we need to if you were here yesterday and you heard we had a videotape you know qualified immunity which is a very common in scott the harris just a general rule if you were here yesterday my question is can we look at this video on our own or do we have to defer in anyway to what judge we're line saw in the video well in terms of judge were lines conclusions factual conclusions obviously they're subject to a clearly erroneous standard in terms of the factual conclusions that he drew but the fact that you have this evidence before you will allow you to look at it and determine whether or not his is factual divisions were clearly erroneous i mean can you help me with that then because i've got two questions pacifically about the videos or one of them is that you were talking about in that conference room and there are a number of clips in that conference room it's a vast majority of the record evidence is from that conference room that he's respectfully he's yelling and in in bit but they are carrying on their regular meeting in just letting the a gentleman who's standing next to him every once in a while but it's not stopping them no one seems to be cowering in the corner or they're just and they're sitting right next to molly's yelling so how are they at all threatened by him if they're just doing their hand in papers there sitten closer than i am to judge willett and to just yelling and it doesn't seem like anybody's afraid or if so can you help me with that sure st of all i give credit to the folks that work in h s t that they're able to sit there and put up with that of course the person that was standing in your view with that if you're looking to his immediate left that person standing there is a is a police sergeant was it isn't a tries to police officer and then the actual  body cam video you pricey some bass hand that appears on the left hand side of the screen so there's a nd officer in the back of the room and that's that officers body cameras recording that we did have a ton of skill you testified at the at the injunction hearing she did talk about the abusive conduct that that she perceived to go on frankly it's clear from the record that that was what was going on and so and then the papers that you're talking about handing over i'm sure the court saw the portion of the tape where the audio one happened ripped it up you were i started it it was it was it was it was it was you c respond if you don't think that happened it was it was par in that when that was being shredded to your point was a admonition that as part of this teacher reassignment process needs to be read and delivered to d the to the person being affected by the administrative process so for anyone to suggest this is not disruptive conduct this is a type of reassignment hearing that frankly should take a few minutes and instead what you see on that video is what i consider to be a career think haranguing abuse in the most hateful threatening way that somebody could and i don't think i know we're all experience and judges but i don't think for one second that we should ever lose our perspective on the fact that this is the type of conduct that under no set of circumstances could be considered to be  protected st amendment activity and so one other point is i know we're going to run out of time and you may have other questions for me but there are a few additional points i don't want to retread we put in the brief but there's a few additional points that i do want to point out that that didn't get completely set out in the court's well reasoned twenty five dollars page opinion or in our briefing the st is with respect to this meeting this could never be construed to be even a limited public forum in terms of what happened at that at that meeting that that administrative proceeding is a proceeding that affects individual teachers teachers are allowed to have a representative present which is how this mr monroe's business model basically gets paid to represent people who are affected by these administrative proceedings so he comes in and then quite frankly i think the record shows that he adopts this threatening bullying behavior in a way that he believes could advantage the people that he is representing so so that's one dollar which is that this this administration proceeding could never be considered to be a any kind of public form it's a hands kind of what if that's what does that even matter it doesn't because it's the whole package and so when you think about the whole package not just the t shirt identifying the teacher the fact that the board meetings as he knows as he admitted are televised the fact that he's making these gang references the fact that he's wearing a bandana when he comes up to the podium the fact that as he gets about to say you know i know people that can offer these teachers protection he raises that bandanna to his mouth and says finally a mandate that either you take her out or all take her out it's all that combination in addition to the manner of delivery which you see from the tape it's all of that combination that a child still is reacting to it's not an individual act like making a pointed finger with a gun although i think quite frankly we may even have a still shot of that of what you're you're pointing out in our brief but i'm just wondering if that if if it doesn't if it's just some kind of thing he points with his talking that's might be your question goes to my point which is you can't parse this out you've got to look at the entirety of what of what h s t was confronted with and on this front you know i think there's a lot of criticism of what you're drilling did in this twenty five page opinion i think it is an extremely sound thorough decision and one of the things that he does in there is he gives mr munroe the benefit of the doubt which frankly on this record i'm not sure even had to give which is and i'm not criticizing the court i am trying to find out what it is that we're supposed to consider right all right that clear from my questions absolutely it is and but the point is that he gave mr monroe the benefit of the doubt which is that that mr monroe in the absence of this crime well trespass warning would would present the board with speech and conduct that would be would be protected by the st amendment which is not an unreasonable suggestion but frankly i think on this record judge we're mine could have just looked at what he did that package of conduct and have and held that in light of that conduct he has engaged in unprotected speech which justifies the criminal trespass warning the criminal trespass warning here serves a couple of purposes number one it serves the purpose of protecting his t personnel from threats it also protects the h i s d processes from disruption so that is one thing that it serves it also frankly serves as a little bit of a cooling off period i think you saw from the record that even when the april th criminal trespass warning was issued did did mr inroad recognize the error of his ways no he wrote a letter which is in the record in which he said basically at the end this is the way i do things i'm not going to change the way i do things he also said i said nothing derogatory about the teacher this in a situation where on a videotape he's calling somebody an idiot pointing to that person's picture on his chest with her name in large white letters so from that standpoint it serves as a cooling off period and to the point of this list it also is an educational period because it allows him to be able to see as he started to recognize in the in the transcript of the hearing i would encourage the court another court sorry looked at it go back to that transcript and see i tried my best to to get him to articulate if he believed what he did was wrong and we rewind about fifteen minutes i'm going to go back to where you say these rules have warning that was it was the issue of some preliminary injunction or not it was the teacher challenging the rules that said basically  individual as part of your presentation during the hearing of citizens i'm short circuiting it for purposes of time but that's basically it she made a challenge to that rule here the only challenge the judge  point we have is a challenge to the preliminary injunction with respect to the criminal trespass warning and the criminal trespass warning as i said earlier and i apologize as well if i wasn't clear enough on this but it was it was the criminal trespass warning does not set out a parameter that says it tries to control any content of his speech the criminal trespass warning is as you all know basically says you cannot come on to him as to premises and if you do you may be subject to criminal trespass there's nothing in the record indicate that he has tried to come back on and as we've talked about that that band will be will be ending at the end of this next meeting so that you know if we were going to try to ruling so that it's not a doubt by our deal or taurine as well i mean they've had they've had meetings this fall they have meetings every month you know what day of the week the month the meeting is that we're trying to shoot for to get an opinion i'm not saying you're winning or losing but it would seem they were trying to expedite something so it's helpful i think we're all i think right down roy looking at one potential board meeting in december before the before the ban you can answer that question when it's your turn so and then i have another question is it appropriate to consider the effect on the hearer abstract or then because our standard is not what this person thought it's what a reasonabl objected person would think and that's so i'm wondering how is that helpful i think i think it's absolutely helpful and all that record evidence not only talks about  the threat as it was initially made but the impact of a threat that is made on a televised school board meeting because i know you read the record evidence in  case of the principal was informed by others of this issue so it actually the fact that it was on video actually expands the nature of the threat if if someone is making gang references and taking just saying he's going to take out a a middle school principal how could not other members of the community not take that seriously as a as a threat so so  i think in terms of the standard in terms of the because as you as you know one of the under the st amendment case law it is that threatening speech is is not protected and  know we cited some of the the court cases the even the shouting fire in a crowded theater case and so that that the nature of that as a threat is certainly relevant and the fact that it was perceived as a threat is certainly relevant and i think i'm out of time i think i am but i appreciate the court's questions and we would ask the court to affirm the the verses say paul the hustler case versus falwell snyder versus phelps justice roberts dealt with extremely offensive speech in the context of a military funeral the court has held over and over and over again that simply because the public or specific elements of the public deem certain speech to be offensive or derogatory or hateful metallic versus tampa it was disparaging a disparaging trademark the court cannot cannot outlaw that kind of speech mr nichols talks about a true threat even judge were lined found that the speech of mr munro's was not a true threat the police who were at the april  th grievance hearing did not arrest him as you point out judge all right there are two police officers they are there seven police officers in the eight in the april th board meeting they don't make an effort at all to arrest mr monroe so there is no true threat here what he said was in context he wanted to see this teacher removed he used him politic words just like the speaker in the watts case to use in politic words about shooting l b j if he ever got his hands on a rifle the supreme court in watts said that that was not prescribe a bill speech the same answer the question about whether or not we are having that discussion today or it's for another time if  it in the hypothetical future about where you know there aka tori language i think that mr nichols inability to define that and to tell this court that it's a case by case basis that raises the the very problem we have here that is a void for vagueness issue it doesn't give anybody anybody including mr morrow any idea as to what he can say and not say that might be due by the supply the history board as derogatory offensive now mr monroe cannot say all of the things that i talked about earlier derogatory or offensive remarks about board members or employees carrying visual aids that contain offensive a derogatory those applied to everyone in the h i s d school district that entire list those are existing policies in federal rule of civil procedure sixty five gives you a remedy if you're upset with it you can go in challenge it in the district court that has the gets a hearing in then there is  me that all of this is out of order and none of it was presented in a way that someone could make and judy cation on what it is your challenge even today we're having a disagreement about are you challenging all of that july th letter as i said now twice the july t letter contains the exact same content discriminatory viewpoint discriminatory content which is an ally that we challenge it at the july th hearing and so your complete and your motion in your memo saying nothing about so let me address the point though with respect to the july th letter as to whether or not it poses a chilling effect if you go to the bottom of the nd page you will see that the school district says there you were further advised that if you  age in the above conduct meaning of offensive or derogatory remarks on a property in the future history may be required to issue issue additional criminal trespass warnings that is chilling a st amendment right and that is the irreparable harm here gentlemen appreciate your desire to move on from this and i recognize you don't want to answer this question but maybe i can ask it this way can you give us a case from any court that allows a federal court to issue an injunction in the posture that you present in this case where it's not been challenged below in your raising it in your brief on appeal i think we fundamentally disagree judge told him about whether we challenge to follow the july th letters that said now three times i'm not i'm sorry maybe  that went on here mr nichols and i went back and forth with judge or a line about the july th letter if you read the transcript of the july th hearing you will see the judge or a line repeatedly addresses the july th ban so it was before the district court it was argue before the district court evidence was put on before the district court that issue was tried so i want to address though the issue here as far as the as far as fair concerned fairchild is a case involved in which the there was no content or discriminatory ban in place it was simply a parent who was attempting to challenge a grievance or an employee i believe but there was no issue there of her not being able to say offensive or derogatory things in the course of her remarks to the board so we didn't have this st amendment issue that is squarely presented by the july th of the july th ban the limited public forum issue i don't even think the court needs to address because in a limited public forum even if you assume argue window that the board here meeting up at the board meetings and the grievance meetings are limited public forum content bans are presumptively unconstitutional even in a limited public forum the school district has to show that it can satisfy a compelling interest and that it's the least restrictive means of satisfying that interest as we said before there is no compelling interest here a letter i'm trying to apply if you go to page two your honor and see can't wear clothing as derogatory remarks but where does it say you can't say derogatory things there's also the use of any signs banners posters or visual aids containing clothing but it doesn't say you can't say something that's offensive in the cult in the in the cohen case the supreme court has addressed the issue of clothing as being a form of speech so whether he could say it verbally or whether he could say it in the form of something that he was wearing or in a sign of a visual aid it's still protected expression ok or my missing i missed something there's nothing specifically where he outward says here he can't speak it but it's clear from the  language that he cannot wear clothing containing offensive derogatory remarks he cannot make use signs banners or similar visual aids containing those remarks that is effective sleep prohibiting his speech  employer ok once more with feeling just to give straight what is actually concretely before us when mr nicholson these rules have never been challenge the only challenge here is with respect to the criminal trespass warning and that doesn't purport to control speech it's only about coming on the air you know if i ask the premises you say i say that the criminal trespass warning is what you believe is the scope of the injunction that is correct your honor and so if there is a meeting and i think the board can call meetings on a dime they only have to give public notice under the texas open meetings act so we do need a ruling just i don't know exactly the date i think i believe it's the rd thursday or tuesday but we can provide that to the court in a supplemental letter but they obviously have given us a lot to think about but we don't want to move up the case just because we're slow and that's why we asked want to accelerate an expedited hearing to please granted that you did and we appreciate your doing that so it is important for mr monroe he has testified that he doesn't miss board meetings he desperately televised they're live streamed mr monroe is not speaking only to the board members themselves this is a forum that they've created and it's a bit different than what happened in the fairchild fairchild there was an i don't believe testimony about live