orders now the problem of course with that position is twofold as i mentioned earlier one it's a question of the factual record no where in the factual record have the defendant stated that in fact they aren't embracing and methods of the b l m protesters over our clients and i think and they are not granting some special license that allows them to go out and protest openly peacefully absolutely ana so one of my questions here goes to the standard for issuing the preliminary injunction and and maybe you could just explain a little bit more your view of the state of the record with respect to the risk or likelihood everyone to put it that the city would actually take into force  against your client if she were to show up at city hall tomorrow and hold her desired protest with let's say one hundred people and let's assume for the hypothetical that she were to comply with all the conditions that you said she would comply with which is everyone would wear masks everyone would be socially distant no one would be blocking the roadway is that your will you tell me what what's your view about the state of the record with respect to whether or not there's any sort of like reason at all that there would be enforcement action taken against her well to save the record and then go to their  we hear from your adversaries with that's the state of play but if they were to make a representation to this court on the record that confirms what i think i had thought the record showed which is that they were saying that they have now decided not to arrest any peaceful protesters regardless of the point whether it's related to racial justice or protest the kogut or whatever they were to make that since the protests commenced in the wake of the floyd incident and we are committing that we're not going to resume it would simply be a non unfortunate representation not that the executive orders don't exist but i commitment that they're not a representation that they're not enforcing it so short of that border what would your view be of if there were such representation on the record if i can just take one step back if they were to take that position your honor it would contradict everything they said in this way to gay friends and other litigation i then worked on and that would be it's no longer a compelling state interest in protesting in order to disperse or other kinds of interference with her protests would also be a violation of that right wouldn't it be absolutely and i would simply do so it was so so you're not you're not only concerned about the threat of arrest but any kind of disbursement order any kind of interference by the state or the city with with a protest viewpoint and you allege that policy is unconstitutional if that's the nature of your claim you're not saying there's anything special about your client that means it can't be applied to her you're just saying that the government can engage in that kind of viewpoint discrimination right and that the also have a challenge to executive order itself and i guess sometimes when we evaluate the constitutionality of a statute or maybe an executive order we say we have to determine whether it's furthering a substantial government interest and if the government doesn't prohibit a lot of conduct that causes the same alleged harm they're trying to prevent we might say that the order is unconstitutional so there's nothing know that correct and then so i guess there is also the idea that if that your client maybe would be making as applied challenge in saying well they're allowing certain protests to proceed but would arrest me and since i'm not expressing a fevered viewpoint they can apply it to me but even then you're not saying there's something about your client you're just saying that given the fact that there is some viewpoint discrimination they can apply it s it's true that the state and the city say that a lot of their participation or theirs in their statements about the the protests were not were not an unfortunate of them but were attempts to calm tensions and you suggested that if that's what they were doing it would be twinge of like a heckler's veto are you saying the government's not allowed to agree with a message in order to calm tensions critical in their important decision that they cannot do right but the governments you know will hear from the government the government says that they're not actually selectively enforcing the executive order they just because the situation was combustible and there were spontaneous protest that were wide in scope they really couldn't do anything to stop them and so even if they might in principle want to take  course of action they couldn't but and i think they say that the statements of some public officials that seem to indorse the message were part of the efforts of tensions are i heard you said something about posed different public safety challenges than than the protest that your client labeled well i would say that they were certainly larger and even greater violation of the executive order i would also say that the aspect of violence was pretty good to curb you want to arrest when the defendant actually we wanted to address the violent protesters hijacking and exploiting the opportunity and they did it quite effectively with the world war just because the terrorist attacks missed one other question which is so if we have a record that suggests the government maybe was acting with the kind of mixed motives that there's some evidence that there was a public safety concern but also some evidence that they agreed with the message because of some of the statements and so on what do we do with that is the government  to act because there's a public safety justification for the fact that there is evidence suggesting that there's viewpoint discrimination is that true what would we do with a record that has some of the some suggestion of mixed motive of the part of the government i same time the right to protest when they come back and say of course and this is part of your earlier questioning well we're no longer actually arresting people now let me be clear what they're actually saying what they say if you read both i understood from the record colloquy between you and district court judge that you more or less when you were asked whether geller won the st iteration of this to literally a stopped you from proceeding on official challenge you moved immediately to say that it was an as applied challenge and my wrong or right about that well i would say i don't want to say you were wrong because i'm not looking at the transcript where you're working or have what i would think w smart in moving to the as applied challenge portion of this but if it's as applied challenge then i've got a few questions for you so tell me we're well one of the again in this particular in connection with this particular that to we point out in our brief much you're going to occupy fifty percent of a pedestrian area park or what have you you don't require a permit and they wouldn't if you weren't  record but they haven't chosen to do so so i'm sorry i'm having a little trouble understanding talf so far this has a plot has been applied to your client seeking the injunction read the secret view of an executive order that violates the st amendment enjoying pending appeal because plaintiffs is not clearly or substantially likely to get the district court's p i denial overturned among other things the district court acted well within its discretion in rejecting plaintiff's claim that the gathering limit as applied to her planned political protest violates the st amendment the fifty person gathering them it is content neutral and satisfies the traditional intermediate scrutiny test for content neutral time place and manner restrictions my friend on the other side brought up some of the statements of the defendants or including my client governor cuomo about the b l m movement but i would start with the fact that the gathering limit b terms applies to quote all non essential gatherings doesn't make any exceptions for any one group in the text and those statements that my friend reference do not create a b l m exception he points to three statements all of them i believe from the same month june two thousand and twenty but notably none of those statements purported to amend the terms of the gathering limit none of those statements opined that large b l m protests are in fact neutral limit readily passes traditional intermediate scrutiny because as plaintiff concedes it does serve a substantial governmental interest slowing the spread of covert nineteen the evidence shows that that interest would be achieved less effectively in the absence of the gathering limit i think the best evidence for that this paragraph thirty six dollars of the hutton declaration that we attached to our papers when he where he notes that large gatherings present quote the greatest risk for rapid and widespread transmission of the virus in the community and the gathering limit is designed to curb that and then the last part of intermediate scrutiny analysis the gathering limits leaves open alternative channels of communication and among others among other things some of those alternative channels include real in person protests now it's true that plaintiffs under the gathering limits cannot organize a protest of more than fifty people in a single gathering but there is nothing i mean we're not encouraging her to do this but there's nothing in the executive order stopping her from organizing a network of protests total one hundred people one thousand people whatever number she wants so long as they are separated into discrete groups of fifty or less so even with respect to the precise type of protest activity she wants to engage ginsburg i probably don't have that many questions for you other than i'd like to just understand how you and the city may be differently situated in this case what in for authority has the state got with respect to the go specifically with respect to saying this killer's proposed protest in front of city hall in manhattan the record doesn't shed a tremendous amount of light on that i would be speculating but i would and the reason that i'm hedging is because i can't speak to whether for example there's some memorandum of understanding between the various entities that that is not in this record that i'm not privy to but i suppose in theory i mean as the plaintiff points out in her reply brief the government can command the state police a i don't think there's anything at least in the statute absolutely prohibiting the state police from doing some of this in forstmann activity but the record here does not demonstrate that the state police have been involved in any enforcement activity as far as protests go certainly in far as as far as protests go in new york city and in fact petition of plaintiff in her memo of law concedes that in the context of the present case governor cuomo is not the enforce but the n y p d and defendant commissioner shay is so that really reinforces our point that in forstmann where the rubber room meets the road or in this case doesn't meet the road because there has been no application yet that enforcement is really a matter for the local law enforcement authorities and you know i think that ties into our broader claim of the the fact that governor cuomo statements did not create a b l m exception because if they did create a b l m exception what one would expect to see would be that all localities statewide take a hands off approach to any b l m protests and there's no data in the record there's no information in the record suggesting that kind of statewide hands off stepping back although i didn't and this is helpful again just so i can understand to the extent the record maybe suggests that the two different defendants are differently situated here than i understand tell me this is correct that the record does not disclose in any of the enforcement actions that ms geller put forward for example the butler and cats and some of these other instances where early in the period of coded and the early versions of the executive order various people were arrested or told to disperse or whatever that was undertaken by and when but not by any law enforcement authorities directed by state actors is that it's my understanding that at least as to those guys that as to the events in in new york city i think some of those cases dealt with events in albany and i'm not quite sure if some of them might have been so close to a state building that maybe there was a state police officer on hand but to the extent that those cases deal with activity in new york they confirm what the rest of the record suggests which is that it's new york city doing the on the ground and forcing it ok thank you very much that there is no such policy but if there were such a policy you don't deny the plaintiffs would be able to challenge it right if there were indeed such a policy i mean i suppose we would still have of irreparable harm but the the lack of enforcement a prospect of enforcement think we still have that defense but if you have a bit if indeed there was content based if indeed the executive order on its face was content based i think that would present but i want to read the border on its face with possible that the executive order on its face is content neutral but that city or the states would have a policy saying we're going to apply it only to these people and not to these other people and if it's based on viewpoint oh i see what you mean i think if indeed there were such a policy at the state level that would certainly that would certainly make the analysis different  to my client governor cuomo if the policy only existed at the local law enforcement level you know i think the considerations might be might be somewhat different memory serves that incident occurred in late may but it was after but was there an allegation but her the cleaning dealer one was that the order just wasn't justified right there hadn't do believe was filed before the george floyd in to before right yes ok so if in fact she is now saying that there is a viewpoint discriminatory enforcement policy couldn't possibly have made that challenge such a policy you know her claim is not that there's anything special about her that means that the policy can be applied to her specifically it's that such a viewpoint is missouri policy is on its face and constitutional right i mean as i understand it where the court the reasoning the court might employ in accepting or rejecting her challenge might look very similar regardless of whether it's facial or as applied but strictly speaking as i understand it she is bringing she'd only asking for of george floyd and those related protests those were lawful they're right well the the executive order does not authorize the protest i think i do want to be very careful about this there's a question there is one aspect of this that hasn't quite been litigated in this case which is whether some of those protests are even gatherings at all to which the executive order applies at the word gathering is not defined  executive order but the state has always understood it to mean people who arrive to an event together leave together spend time together in a coordinated way while they're there some of the very early george white protests as i understand it or more of the spontaneous outpouring so i think it's an open question hasn't yet been litigated whether those constitute either that's fair enough so so so to the extent that they're organized in advance you're saying that they substantive message of the protests he supported the sort of larger general notion of of seizing this this this moment but there's nothing in any of the statement that is a clear statement purporting to interpret the executive order purporting to create any sort of exception and i think i would have a hard time doing better than the th circuit did in the recent illinois republican party dipping opinion that it issued earlier this month where it confronted similar statements on behalf of the illinois governor and it found that those statements because they were quote untethered to any legislative or executive rule making process and didn't purport to carve out exceptions but you would you agree you did you disagree with the please this allegation that in fact protests occurred in the p d and the local law enforcement who are are are the principal people involved in making these enforcement decisions but that you know in forcemeat decisions that that is why they are left to local law enforcement local law it would be would be a different question if the evidence suggested that the order was not being enforced against the protesters and the head of the law enforcement agencies that he read with the protests we see why that where that  creates issue it would be a somewhat different question i think if hypothetically governor cuomo were stepping in the shoes of those local law enforcers he too would have that sort of local law enforcement by hypothesis discretion and he too could make case by case analysis of whether and when enforcement would be appropriate for reasons having nothing to do with the message just because of spontaneous  there is certainly some coordination absolutely although i don't think the record bears out any coordination in terms of the enforcement of the fifty person gathering limit but in general yes the new york city and all of our other scene organize a protest of more than fifty people so you're not saying that this is not being enforced your position is if she were to go  executive order whether those terms would actually be to use judge stephens words in the rightness case that we cited liquidated into an enforcement action that would be up to the n y p d and i on behalf of governor not making any representation one way or the other on that i am simply saying that it is true that her planned protesting activity would not be authorized under the fifty person gathering limit this that the state would leave it up to local law enforcement to make a particular decision but the policy of the state would be that that gathering would be that process would be a lawful well i mean yes i mean that but the state doesn't leave up general to the n y p d it's not like the state is picking out mrs geller and somehow removing itself only from that situation while maintaining close involvement and all other situations where you're saying there's no no reason to believe that yes well as well one last question sue of the public interest prong you know you say that there is a public interest in allowing her to protest but if there are all of these other well i mean for us of all i don't think she's just been talking about organizing just one as i understand it she sought to organize multiple protests over the course of this past summer and perhaps in the fall but i think we can look to recent events in the news to see what the consequence of holding just one of these types of events might be i mean think about the wedding that recently occurred in maine which only  that that was only exceeded fifty people by about ten i think it was sixty two or sixty five people last i checked that wedding has been responsible for seven least coronavirus related deaths and over one hundred and fifty confirmed cases of corona virus so d events like that underscore deference constitutional deference to the state in acting the sorts of executive orders and leaving the on the ground decisions of when best to enforce them to local law enforcement  go more under the rubric of irreparable harm in that she would be dissuaded from from exercising her her st amendment rights we're not contesting irreparable harm that that's pretty much a given in these st amendment we understand this court's jurisprudence but i don't think that chilling effect would be enough to get out of a right to challenge that or that's where that's what i'm having so would you tie that into the geller cannot bring any constitutional challenge to this limit before it's in force in this court's cases don't stand for that proposition but what they do stand for is the proposition that if she's going to bring a pre enforcement challenge except in very limited circumstances that has to be a facial challenge so has she brought a facial challenge to i mean she brings facial challenge had she moved for her injunction pending appeal on the basis of a her facial challenge then i think we would not be making that rightness claim but because she has moved for this injunction based upon her as applied challenge and has not purported to defend her facial challenge  claim is on right and remember that the gathering limit if we're talking about a facial challenge and whether there whether the gathering limit would be valid as applied in other circumstances the gathering limit applies much more broadly than just protest it applies to all gather that applies to parties barbeques the like things that don't that are traditionally associated with the same st amendment pedigree and the pla only discusses this the constitutionality of the fifty person limit as applied to protest and i don't understand her to be making any sort of broader claim for the purposes of this motion so that's opponent which is if you could clearly state to me what is the present policy of the city with respect to enforcement of the executive order that ms geller were to show up at city hall tomorrow with i don't know seventy five dollars people assuming that she would otherwise comply with the law in every other respect peaceful mass six foot distances you know not blocking public spaces whatever other violation of law you can imagine they're not doing so that the only hypothetical violation would be of the executive order can you make a representation as to whether the city would take adverse i had thought that the reason you were in the district court pointing to this evidence of all described as uniform non enforcement of the executive order post floyd was to show that she does not in fact face danger or any likelihood or credit we want to raise it of an important action i mean isn't that the point of why you put that evidence in the record men had been favored over any other men well let me let me let me provide a little bit it seems to me than you but you're still drawing a temporal line right you're saying that once those protests began there's been no importance but the record seems to indicate that beforehand there weren't forstmann actions taken if you're trying to draw a temporal line between before and after the floyd protests began i don't understand then why you are you seem to be holding out the possibility that there could very well be all sorts of forstmann now against ms geller even though we're on the other side of the line right i heard someone writing back is your view that the world has changed back and we're not in whatever this moment you saying is different from the early stages i mean are you saying that the city is across the board going to be important is more tightly now i guess i'm trying to understand it if you're trying to draw a line between before and after and why are  that that that things are going to change in the other direction if anything again the entire response to that hope is nineteen and necessarily has been you don't want to make a representation that you're not authorized to make or that could come back to bite you in the future but i mean maybe what i'm hearing you say is if we're going to look at the record we'll have to make predictions about future and for some based on what's been claim one of the questions i had is where in the factual record before the district court does the justification appear for the city that they were you know coming up with various policing approaches that were aimed to try not to escalate the situation trying to not to go if you're trying to avoid provoking violence or that sort of thing i saw that at the end of oral argument before the district court some representations marg humans made by the city but does that appear in any of so that was sort of a there was an argument if i understand that but there's no actual evidence in the record that that was actually what motivated any decision makers in this case right that correct ok can i address or ask you to address one of the arguments and maybe it's also one of the ones that was only offered as a justification in argument and not in any actual evidence which was that there is no differential treatment because what ms geller is proposing to do is in organized and then that's not spontaneous right whereas some of the lack of enforcement in recent days the city alleged was argued against spontaneous  groups or non spontaneous events that are not organized in advance and that might or you know it's closed turn violent or somehow go bad there's evidence in the record i believe about for example the mayor participating in the pentagon mural on the street manhattan is that correct yes so does that incident how does that fit into the city's argument that the non enforcement has been motivated by a desire not to apply and forstmann techniques to spontaneous an organized event whether there is any agreement or not agreement that was stated at the event the event happened though right there are a number of people in the photo who are gathered at that time who exceeded is by my count just kind of people in the photo exceeded the the gathering maximum at the time and let's put aside what they were meeting for but the mayor was there right it was it was planned they were publicly meeting so whatever the message they wanted to send doesn't really matter right because it seems like that was a non spontaneous and yet organized event and i guess my question is if that if that's evidence in the record then why should the court credit an argument not supported apparently by any evidence in the record of a declaration that one of the motives for differential treatment here was you know a desire not protests was motivated by the message and the sense that a single event in a single heaping of a mural that is very much envelop in the overall impact me raising purchase raises a question as to whether there is differential treatment on the basis of viewpoint you just don't think it's clear enough to entitle the plaintiff to an injunction is that right i think at most arrests and so on and the suggestion in the brief is that it's speculative as to whether the city would actually enforce the ban on gatherings to miss gaylor if she were to have a protest but you're here representing the city and i take it that in response to the question would you enforce the ban against her if she were to have a protest use your answer is you m who would want to have a protest that involves fifty or more people probably would decide not to do that because it seems pretty likely that they would be subject to some kind of a force with action our gathering or section with force different though i understand so you're saying that you don't think that there actually is a policy of enforcing it differently on the basis of viewpoint there were such a policy and i put this question to the attorney for the governor to she could challenge that policy nothing would stop her from doing that you just and she loses on the merits that's correct but not because there's a credible threat that there be enforcement action but because you're not sure she'd be able to get fifty people together i think it's speculated for both reasons but she's not really she right so does that mean that the mayor would have wanted to disperse the protests or stop him but expressed support for them because he recognized that they were going to  guess that just you said it doesn't it's not encouraging people to come out and prove to so this is fact the mayor had made a statement encouraging people to come out and protest with deputy a different case and with that show i think it would be a it would be it would be a closer taste your honor but again i don't know that a politician in a time where you know the history and an immediate one he an outpouring of regular anger that reverberated around the globe and responding to such a situation the mayor as the leader of the city made certain comments that cannot be divorced from that from that overall context and they can't be divorced from the overall context i mean what does that mean the context in which the plaintiff wants to put it is there were these protests that occurred that the city allowed to occur even though it had sensibly a ban on gatherings and because the mayor who's in charge of enforcing that in the city dorce them but it seems that it was might very well have gone in front of the cameras and said i support the protest and the message while at the same time you know in private it's telling the police that they should treat the protest the same as any other gathering that's what you're saying and so we shouldn't read too much into the public statements because he might have been doing something very different in private i'm i'm i mean they i mean they certainly we shouldn't read too much in the protests isn't that an action that's different than a politician's public statements why doesn't that convey a position that the protests should be occurring of mixed motives that maybe the city did agree with the protest or did have agree with its viewpoint but it also had other public policy reasons  why it would treat the protests different than other ones is that what you said i did say mixed motives that was the in response to a question that i believe had been put into my abbott's area which was what are we to mayor support for the message and could that raise a question about the motives i guess it could raise questions does it make a after this argument but let me just make sure i understand because you said a lot of different things in the cellar like a lot of concessions like you understood the theory of your case exactly frankly but are you saying that there is a record of a credible threat of arrest or prosecution of prosecution is that something to your personal comfortable saying at this stage i that the city's position is that we cannot shore demonstrated that there you any that she has been treated differently