the prior restraint was repealed in one thousand and eighty four or five for as you suggest and if the proposed regulation was withdrawn and does not exist what exactly is it that you're challenging the government has said that notwithstanding the repeal of the prior restraint it isn't forcing it the government has said in three different places that are critical wanted in the proposed regulation in two thousand and fifteen they may be enforcing a lot of things i suppose but in your i thought your client said that he wanted to discuss in public material that is already in the public domain that is part of what he wants to discuss he wants to discuss things that are not in the public domain he wants to discuss stuff that's already in the public domain and stuff that could be placed in the public domain by him i would be placed with arguing by him that he aware of that is technical data right but he would tell that he would not tell the district court what that information was but he made a facial challenge your honor and the reason he didn't go into the specifics is he doesn't want to be limited well but then why isn't why is not the district court appropriately considering that it may well be that what he is asking to discuss are the plans for how to make a nuclear submarine that would then be put into the public record that is not anywhere in the public record and that does not otherwise come within any exception to being technical data was a district court not right to assume that that's what it could be because he won't say what it is the district court could assume  however well then and you're saying that it is unconstitutional for the government to have a program that says that it is prohibited without a license to make known to foreign governments the manuals and blueprints for nuclear weapons so your honor first of all we're only talking about the public domain exception here but i'm sorry it's not in the public you just told me if it was in the public domain then i wonder what the case or controversy is because it's clear that the licensing requirement under present regulations does not apply to anything that falls in the public domain category but you were telling me that that's that your client wants to discuss public domain exception covers material that is already in the public and material that is published  so brought into the public domain it covers both but that's it covers both and my point as stad wants to be able to use both he wants to be able to use material that's already in the public domain without getting a license and he wants to be able at least potentially to publish material himself like in a book without getting a license but if it's in the public domain means things for example that are through fundamental research in science and engineering and accredited sure i understood your answer yes you are acknowledging at least for purposes of this argument that the district court could correctly assume given your refusal to produce any information that really could be talking about the most seriously classified information imaginable no your honor it's not by definition asked you i'm sorry it's not classified but that material that would be covered that we could be talking about  what we're talking about is only material subject to the public domain exception that is unclassified privately generated information to the point i want main exception then the regulations make clear that it is by definition if it's public domain it is not subject to licensing because it is not technical data i gree with you but the government has said otherwise three times including in what is  that what the licensing requirement as it is written is not a licensing requirement that prohibits what you say you want to do so you are trying to enjoin something that you say is going to be some kind of action that they're going to take but we don't have anything that says what he is that they're doing so let me be clear if this court were to write an opinion that says the material at issue here is not subject to current law that would be fine with us we don't know what the majority know what the mature material is material subject to the public domain exception in the regulation let me ask you another let me ask you another question in a case like the pentagon papers the prior restraint was with government going out and trying to say to you if you publish this we will hold you in contempt there was no statement there that the publication of something might not have criminal penalties what is odd about this case is it turns it on its head you want to say that criminal penalties that might apply to your publication cannot be applied that's exactly the reverse pentagon papers all the prior restraint cases say we can't stop you from publishing ahead of time if you publish something wrong you may be subject to ban criminal penalties you instead are coming in and saying i want you to i want a court to order a government not to put criminal penalties on me for anything that i may do  licensing regulation that would be different but there is there is a lot we're saying with specific licensing regulation and i understand the history here is a little convoluted is the original provision in one twenty five point eleven that included the express requirement that before publishing something in the public domain when it was already in it or you're putting in the public domain you had to get a license from the government and that's and it got away and that's been done away with except the government has said they're   enforcing it the government said in the proposed reg that we are currently in for it's reg that then was withdrawn but it said in the federal register notice that that this is not new and that the regulations that very simple question would be would you say that it is an unconstitutional prior restraint for the government to have a regulation or statute that says it is  without a license to provide the manuals for producing go all the way nuclear weapons to a foreign country without a license vet first of all that would be classified information and it's subject to an entirely different i what if what if or let's say it's not nuclear weapons the boeing company has developed plans for a on their own not with government funding they came up with a great idea for a new kind of bomber and they have the plans it's not classified because the government hasn't even seen it yet a boeing engineers says i want to discuss this in public so everybody has access to this information to how to build this material the government says you need a license to do that or you'll be prosecuted that's unconstitutional and i give you two answers and i want to hear the one answer is it unconstitutional or not to have such a regulation it probably would not be because that information probably would be classified because boeing regularly does business under government contracts and it's human muskett somebody who doesn't deal with the government who has billions of dollars and the question is if there is information that is privately developed that is at the level of manuals or blueprints for highly destructive novel weapons is it against the constitution for the government to say you can't publish the manuals and blueprints without to a foreign country without a license ok if it is a prior restraint on pure speech it is unconstitutional unless it fulfills the procedural safeguards of lakewood in freetown it's got to have judicial review it's got it not be unbridled discretion and there's got to be a legitimate time limit for the analysis so yes the government could do what you're proposing and what they propose here as long as they do it constitutionally right because of your refusal to tell the district what it is you wish to do because you refused to tell the district court what it is you wish to publish we have no idea what we're dealing with us your argument that this is material that comes within the public domain protection that's a legal conclusion and the district would decide that based on its review of the material i mean you try to characterize this as a facial challenge but in terms of your own standing district court was entitle to consider the worst and at that point the district court relied on a concern about national security so how do you get away without telling any we will prosecute you you have a right to come in and say i want an injunction against my government prosecuting me if i do some things which may or may not fit under this comment statement not written out in a regulation that they mean to do you know only if it's a prior restraint on pure speech and what i'm but even under a more rigorous version of standard the declaration in the record from mr stagg says specifically respects a lawyer he's an officer of the square he worked in the office that enforces this at the state department he used to determine what was technical data and what wasn't he says i have data books from libraries of other material i know it's subject to the regulations i intend to speak and i've looked at this proposed regulation and i believe under this proposed regulation i could be prosecuted for speaking when i said no we're going to offer a standard why doesn't he entered into book or i need to publish x y and z vinces what have you mean to publish and if anybody prohibited me from publishing vs a bit of time that would violate the law at that point a court could look at it and say this looks like a prior restraint but that is what he's done he said i'm a lawyer i know what i'm doing i know what i want to publish and i think it's a prior restraint that's what he's done is based on his record have to say yeah re with you i know you're only going to publish things that you have a right to publish it because it's a facial challenge and it's an unconstitutional prior restraint on its face you should challenge to what people claiming that they did that they've got material in the public domain official what the licensing requirements you know license the current licensing requirement that the government says it's in force and that doesn't have judicial review under the i tore at the doesn't have a time limit and that gives unbridled discretion deny the license and see how it's unbridled discretion or how there's even a licensing requirement if as your client says what he's proposing to discuss is material that under the regulations on their face do not require a license if one of my missing you're one of the government has said in the proposed reg in the brief in this case on page forty four of their brief and in the nelson declaration that they submitted to the district court that there is a current licensing obligation the view that there's a licensing requirement for materials that are in the public domain if materials are properly in the public domain there is no license to hire it if documents if materials are publicly available but were on authorised were not released appropriately into the public domain then yes hard to resist my problem with that i'm looking at twenty two c f r section one twenty point zero eleven it says  public domain means information which is published and which is generally accessible or available to the public through sales at newsstands and bookstores now anything that for example  that some publication like the new york times or the washington post wrote the guardian from the united kingdom published that i can buy on a newsstand snowden violated the law let's say by hypothesis by  authorized then the information remains control where do you get that in this regulation well that comes from the fact that technical data is defined as not including anything in the public domain i just read to you the definition of one category of material that is in the public domain you tell me why i'm mistaken in thinking that once it's out there i understood your adversary to be saying by the way that mr stagg could put things into the public domain by making his own revelations of things that are not there already but you are now telling me that he could be prosecuted not just for doing that but for  releasing saying at a meeting in a bar association conference something that we all know because all we need to do is buy a copy of the new york times to learn it you're telling me he could be prosecuted for that well if he or you are you say that if i know that mr snowden published something and it is out there to anybody i can be prosecuted for repeat it in a newsletter what mr snowden has said in his published already outside and that the government has say tha right to go and prosecute individuals who simply repeat fakes which are already out there if they got out there improperly is that what you're saying the scope of what is technical right away that you can be prosecuted at all and all the the statement that the state department has made in the preamble is that they are to the right is regulations he's absolutely correct that you are proposing to  the government has authority to prosecute people under the current regulations notwithstanding that there's absolutely nothing in the regulation that says this for saying in public something that already is all technical data and restore what would otherwise be technical data because it isn't technical data by definition if it's in the public domain right because the first person to ever put it into the public domain was in breach of some obligation that person can be prosecuted but so can anyone who repeats it that is that while that is not and there's no as far as i know the history of enforcement that is the state department's position as they've  where we are can you explain can you argue to me what and forget the first amendment tell me why i says that that is something you can know where and what provision says you can do that well the sections that's our one twenty point seventeen but it all relates to technical data and tech well the definition of technical data it is excludes material in the public domain and section one twenty point eleven cents what the public domain is so how is it if snowden did publish one of these manuals you know of course i have no idea wh still hypothetical he published one of these these manuals and the new york times reports what he published now mr stagg or donald trump or hillary clinton on the campaign trail says what an outrage that the new york times is publishing this stuff heres what they are publishing look it's in the manual for how to make a nuclear submarine and it says right on this page you start with him they can go to jail notwithstanding forget the first amendment notwithstanding that there is absolutely nothing in this statute or regulation that provides that that is a violation requires a license well there is in the other categories within within public domain a seven discusses a public release through on human on limited distribution after approval by the co would get something into the public domain but so would seven other things well the other categories within the other categories there is an assumption that the original release was appropriately authorized it was in the somewhere is that assumption and we're talking about law here we're talking about criminal penalties and you were telling me that when regulation says that the public domain which is excluded from technical data excluded from the licensing requirement means information which is published and which is generally accessible or available to the public through sales at newsstands and bookstores there is an assumption that it got to the newsstand with a government license that is the state department's few and they are not their view is that in all likelihood what mr stagg has if it in fact came from a newsstand or a bookstore is not in fact to the extent that what mr stagg wishes to publish is material that is already in the public domain how ever it got there are you opposing a preliminary trying to see what is the real issue before us and this has taken a turn that maybe we didn't quite anticipate about public domain material so i want to know whether the government prosecution for dissemination of material now in the public domain again however it cockier if the material is has not been authorized into the public i don't believe that there is an intention to i don't want to suggest that there is an intention to prosecute mr stagg that is a decision that is made based on your opposing a preliminary injunction  and you're proposing it on the grounds that there's national security concerns but if you're not prosecuting people for material that's already in the public domain you know not only do i not do we maybe not ha issue here but the national security concern is quite different if we're talking about material that's already out there well it would depend on the nature of the material that mr sta if if the question is as you've just now voted we want a right to prosecute we may well not intend to prosecute when somebody republic shoes something that the public domain we want to write to frighten people to tell them we may prosecute you but that may not prosecute you isn't this exactly the kind of a kind of override we don't like the way you said it but we like the way the other one said it isn't that just and i find your you know i've seen cases resolved without injunctions being entered when the government simply represents to the district court that you know we don't want an injunction entered judge but we're not we represent as officers to the court that they'll be no prosecution for the dissemination of material that's already public domain and then you move on with the case well the problem here is we don't we cannot make such representation because we don't know what it is that mr step wants to publish so there could be something that is out there i understand there may be other material but that's why i started you focusing on material that is somehow ready in the public domain and focusing purely on the sliver of what you are referring to as the public domain meaning material that's publicly available it is publicly available without the appropriate authorizations however so if it is out there without the appropriate authorizations we cannot make that representation without knowing what the danger of it being further danger of mr steg to say to a bunch of lawyers in the meeting room in new york here's some material that the government thinks should be censored that i found on a public news stand at grand central station if in fact it's correct that anyone could have gotten this on the newsstand a grand central station well we don't know where mr starr got the information what the information  it is in the public domain because that's what we've kept pressing you are you is if you are objecting to something that are in the public domain and got very improperly being repaid stated by mr stack that is what you are objecting to you say because we don't  are they may be some things that are already in the public domain and got her improperly if we want to prohibit him from reap producing that's what you're saying and we because we don't know what they are we can't assess and answer to this court what the danger of the republic usually is the only thing we know is that it's out of the bag well it may be in some exactly and  your time on one issue i just want to give you a minute or two to say anything else you want to say defense of this injunction well where did i leave this injunction the first point that the court should look at is standing and whether mr stack in fact has standing because of his refusal to identify what it is that he wants to present and whether it is in fact something that would even be subject to the tars licensing plaintiffs counsel is represented that mr stagg used to work for the state department so we should trust him but he is not the you know the state department should in fact be able to analyze those materials and offer its own response to mr the district court if mr stagg had a prison if the district court had had had the benefit of reviewing the materials that mr staggered had maybe that would have been sufficient but here that didn't occur but any in any event even if the court were to find that mr stagg has standing judge sheindlin did not abuse her discretion in deciding the preliminary injunction looking soley at the balancing of the equities and the public interest of the court need not reach the merits issues of the first amendment and in fact should not because judge sheindlin did not decide those issues she assumed that he could  demonstrate a likelihood of success on the merits and yet found that nevertheless due to the significant impact on the public interest in foreign policy that a preliminary injunction in joining the government's ability to enforce the licensing requirements with respect either with respect to the fraud injunction that mr stagnant sought or even an error one limited solely to his speaking at this conference and as his counsel just indicated there is are materials that he wants to put in to put into the public domain that were not previously there that is something  t national security but that's a mighty broad national you know it's mighty far from national security well that highlights the difficulty of making that analysis without knowing argument if it is something that is not publicly available because vendor i can say he could be publishing anything which would be catastrophic but here we have a situation where you are saying we know  publicly available but because of that might be more or less public give bailable and then it might have their might be national security but doesn't that killed the whole thing in a different direction without knowing what it is the court was correct to assume that it could be to assume the worst case scenario that it could be something that has a very significant impact on national security and it's not in the public to me well that is not properly might be in the public domain without authorization in some relatively obscure way and that could be it could be dangerous to highlight by making it more publicly available that's the argument and then you're saying we should assume that because there is no reason not to assume that since the any injunction even injunction limited to the public domain would not it would permit the publication in mass media of that kind of information that's  all first of all the government i think has now clearly stated that they do intend to punish the speech that stat wants to engage in the country they said they don't anticipate doing so but they want represent that they they want agree to an public domain materials made in the district or yes i mean if you look at stagg aeration on a seventy six of the record he specifically said that he intended to publish intended to give a presentation about information from the public domain that the defendants did not authorize into the public domain this is paragraph nine are you would you be satisfied with a preliminary injunction that was limited to additional materials published in the public domain go forward separately i think that there are two different job with a firm on that you might as well i was planning to ask you when i asked for your preliminary position pursue the you know the licensing requirement with respect to materials that had gotten into the public domain without authority i mean was the district court ever asked to consider whether the government happy get the public domain exception covered even materials that had gotten into the public domain without authority in the district who would have had no reason to rule on that question that was before the district court there i just want to know where we should look for it my colleague will find that let me just make your couple of points i think what the court really should do here is to as judge lynch you suggested declare that there's no current that allows the government to enforce this licensing regime because that is correct how do we know that because it's been how do we know that one of the questions he is is very an would be beyond the power of congress to do when it's not clear that there's any statute that authorizes doing that in the first place we've also argued vagueness we've argued that under the fifth amendment this is unconstitutionally vague because we know that i day because the government says we can lock you up first you know because we don't like how you look doesn't mean that there's an actual statute that says they can do that but they are pointing to a licensing regime that it least used to exist might exist in the future whatever might have existed once in the past we don't have cases or controversies to decide whether something was constitutional that once existed or whether something is unconstitutional it might exist in the future we're concerned with what the current law is force you're right but the government has just told you in open court that the current laws that they're going to enforce and maybe they're all made the wrong before we get to any constitutional question yes you could you could you could make a ruling we have we said something like this the government says that they would in for something we do not see what it is of if they would in force so what we are in a difficult position to enjoy and something for which at the moment we see no basis if the government makes an argument to the district court that shows that there is some regulation some rule that they wish to enforce that goes this then the question of a first amendment oh or it's complies can't be decided but that wouldn't be sufficient your honor because the industry mr sta the rest of his in the in the den don't we include in the appendix we included comments from i b m and from the american association of universities the public out there thinks they are subject to enforcement by the government and there needs to either be a statement that there's no law that allows them to enforce or perhaps judge roger as you suggested a more limited injunction that per prohibits the government from punishing information is already in the public domain act you know i'm not sure we even the insistence that the song be done abstractly on a preliminary injunction motion rather than getting before at least the district court i'm not sure why it can't also be your adversary but at least to the district court what on earth we're talking about here for two reasons because the industry and people other than mr very worried about not our concern but whenever we have a lawsuit involving a particular part but it's a facial challenge and the point is it's unconstitutionally maintain the facial challenge and he risks harm from what it is he's which he is which he is but that would be a lot clearer if he were telling people what it is he wants to but the other thing is he doesn't want to be limited to a certain specific set of information to stand and that's that's i'm not sure the fight giving illustrative examples he limits him self but by refusing to tell the court any the court's going to assume everything but but the point is that as i think the court has discussed it with respect to stuff that's already in the public domain the cat is out of the bag and he shouldn't have to give any exam maybe your question on whether it's public domain because it's in an obscure journal and where he's published where he's going to disseminate it is not simply to some lawyers group but it's going to wind up money turning it would not be on the internet know how do you know that anybody in the room they take would not be publishing it on the internet he's not claiming the ability to publish it on the internet that's not part of the public domain exception