it please the court i'm robert musin it's my honor and privilege to represent the plaintiffs appellants in this important first amendment case now you'd like to reserve three minutes of my time for rebuttal you have to watch your own time but i will try this is a case of viewpoint discrimination the most egregious form of content discrimination that is prohibited regardless of the nature of the form the county's rejection of plaintiff's ads was driven by its animist toward plaintiff viewpoint and that being that the pictures in the ads represent the faces of global terrorism is the county's objection to plate as viewpoint that is the motivating factor for rejecting plaintiffs ads now to begin there's no dispute they rejected your the first time around or misleading demeaning disparaging and disruptive this court upheld just on the question the question of false or misleading do you still want to run that first ad even though it's an accurate and you have a substitute and in other words is that issue a live issue your honor we want to keep that issue a live issue because i think as i know you want to that question to you specifically is do you intend to run if you can a first date even though it is inaccurate when you have a replacement and the my my clients intend to run both ads or should we ultimately prevail on on both of the on all the claims related to those two ads in regard to just  the on the false and misleading is this court knows we did fall a petition for writ of certiorari and and that was denied over the dissent of justice thomas but he made the point that i think is is a critical point that under the law there is no basis for it for a false and misleading restriction on speech that is political speech and it's clear through the depositions we didn't have depositions when this case came up on the plane or injunction that even the county acknowledges that this is political speech in fact the in the two bases that this court found that was false or misleading was one that the f b i made the offers into that there were the rewards or up to twenty five million for one of those pictured in the in the ad well even congressman mcdermott wrote his letter to robert mueller the director  i complaining about they said any reason why the server would view this ad as as being from the f b i the f b i makes the offers for the awards on their website as well because they work closely with rewards for justice program counsel let me ask you a question just about y opening sentence clearly the main issue here is the first amendment there is passing reference to due process and equal protection in the breeze but those issues are not really developed is your claim really just a first amendment claim at this point the press will claim is first my viewpoint discrimination what you say principle or you're still making other claims and if so are they adequately briefed for independent analysis i believe so your honor because the equal protection claim particularly when you look at the supreme court jurisprudence in this area the incomings are interrelated with the free speech claims and oftentimes they rise and fall together if you look at the one of the cases we cited on the viewpoint discrimination making the point that mattel versus tam is still relevant is that wondering wondering day goes case in the second circuit and then they let me be sure i understand your answer your answer is yes you are still making a due process claim yes you are still my hand equal viewpoints criminalization rationale in effect overrides all these other issues because it is the principle issue but i do think that there is that certainly is the principle issue for the second half because the ground on which they can i relied is basically  disparaging right around which the supreme court has his viewpoint which is interesting concept but they've said it's verity yes right and i think you know one of the disputes between the parties here is whether or not the holding of mattel versus tam is controlling in this case and we believe it is because viewpoint discrimination as you point to scrim anation the supreme court said that giving offense is is a viewpoint in the disparaging provision there was additional mattel versus tam is quite similar to the demeaning  disparaging provision at issue here in regardless of the form obviously there's a dispute over whether the form is a public nonpublic formalin in a public form certainly not from this court they've held it's a nonpublic form but the question that it's viewpoint discrimination transcends the form analysis and it's sufficient for this court to rule that they violated my client's first memorised by denying the ad as on the basis of viewpoint i counsel because i was rejected question please use judge so i understand the differences between your case and  but say a group of neo nazis or white supremacists wanted to put banner ads on the metro buses saying that in our opinion the white race is superior to all races of people with dark skin and the christian religion as a peer to people of other religions like jews muslims  hindus and therefore all white christian people should take actions to minimize the impact of these others in our community with so that that's seems like a political though a bore and you know extreme state but if that were done with the metro bus have to put that banner up they had a banner like that in the banner that said we want to do everything you can that's lawful to exclude people who aren't white christians from our community and keep them out of positions that are significant all that would be a viewpoint the metro would have to run the  banner because of the first amendment in your view even though people reading that might be offended to the point where they'd say well walk around drive my own car and  take the bus you're i think if the if the subject matter of what the banner was on safe was you know they're running ads about some law dealing with public accommodation and somebody wanted to oppose the law of public accommodation and express a viewpoint that some would consider to be racist or bigoted that's a viewpoint and i'd be viewpoint discrimination that deals with the disparagement standard but it doesn't deal with the disruption standard if j hypothetical ridership dropped by seventy five percent account couldn't make an economic go of it or people were in droves complaining and very upset you see your view that the disruption standard is improper not necessarily in this respect you and i think the disruption standard can be a form of a heck was veto and you know as there is a six arkansas in the bible believers case bonk that's an odious form of viewpoint discrimination but this court has held in c max that the disruption the disruption to standard can be reviewed properly by the court and can be a basis for restrictions r estricting speech in this nonpublic form and by carrying that over to to this particular case in the sima case if there was there was objective evidence that the court could rely on to determine that there was in fact going to be disruption in here you don't have that in fact in here you have you have a state department add which had the same offending motif as a war faces of global terrorism that ran on their advertising space on their buses from june sixth of two thousand and thirteen to june twenty fifth and based on the testimony that we see in the record they had a total of eight to ten complaints of a ridership of about four hundred thousand so in that case when you're just basing  the rejection on disruption on the reaction perceived reaction of somebody to a potential viewpoint you don't have a basis for that you have viewpoint discrimination now certainly if you have an issue where there is serious public safety that could be involved like in your hypothetical judge i think you could object if we determine that the they were engaging in viewpoint discrimination they had a basis for rejecting the ad that might be up there could be upheld under these standards but it's so concentrated i thought you were finished well i was going to kind of bring it back again to this particular case because in and see mack this court said it claimed fear of hostile audience reaction could be used as a mere pretext for suppressing expression because public officials oppose the speaker's point of view that's exactly this hypothetical or excusing the hypothetical this particular case where we don't have any objective evidence in fact we have just the opposite and we have the benefit of having this ad to simply add being run by the state department for three weeks without this thinking people should ride bicycles downtown and not drive cars in the downtown city or in the suburbs they should be big bike people viewpoint discrimination viewpoint and again this is this is the supreme court's precedent on this we live in a disputatious you know society there's no question about it the first amendment is there though to protect speech that is offending if it's if it's only speech and everybody's comfortable with there's no reason to have a first amendment would would you be permissible for the county to decide that in view of these developments legally socially they would not accept any political ads any kind but only commercial ads that are truth or nonprofit organizations and their fans or something like that would that be permissible i think under the current my personal opinion is haven't been going away all the time in the courts so basically under under the current jurisprudence dealing with these advertising cases and i've done many of them all across the country that the courts have gone that direction that if you shut it off to pure police to political these controversial ads and you keep it just to commercial advertising for the purpose of revenue generating they've allowed the transit authorities to do that you know just two minutes i'd like to reserve the balance of  may please the court david hackett senior deputy prosecutor representing king county in this matter this important case is about the ability of municipalities to preserve properties for their intended use while allowing limited speech activities if  intially claims of first amendment right to demean and disparage customers on metro buses well after mattel whether we agree with it or not why isn't that true why isn't offending people a viewpoint according to the supreme court you not believe mattel applies in this case much of the d c circuit case i would say for several reasons first it's not a public forum case or not a nonpublic forum case in both this court and the supreme court of cautioned against extending cases they do not arise in a non public forum to non public forum issues well but how is are you aware of any cases that say that the concept of viewpoint neutrality changes depending on the forum other things change but as our dan defying something is either being viewpoint neutral or not are there cases that say that that concept is different depending on the most recently the a t c case and that's that the government can restrict access to a nonpublic forum as long as restrictions are reasonable we know that and are not an effort to suppress expression merely because public officials oppose the speaker's view now that short handed is viewpoint discrimination but it is a very particular type of viewpoint discrimination where there is evidence that the government is looking to express suppression merely because of officials oppose the speaker's ear when that is evidence that is completely missing in this case the record matters it does matter and in that regard want what is your response to counsel's argument that there is no evidence of reasonably forseeable disruption under the disruption proper assuming we get past the disparagement well there is evidence and it's in it's actually undisputed evidence you have not said a minimum well you have dr williams report which explains the importance of a business maintaining its reputation important and also explains from general manager gannon that we want to retain customers right you know that's  supposition as far as i could tell there is no evidence of a drop in ridership or significant compliance when the similar and wrong and so why isn't there a failure of proof on disruption well i would say other non public forum doctrine the choices made by government officials need to be reasonable right not the most the most reasonable and why that's important is because running a business just like any individual they don't have to say well let's try this and see if our customers really hate it and if they do it if they stop writing our bus is one overall context where we're talking about the first amendment i'm not aware of any kids that says well just being really seriously that's good enough i would say that i'm not aware of any case that says you need more than that now certainly there is see mack where the ad went on the bus for a long period of time there were six or seven thousand complaints about disruption in the ad was pulled does it have to get that bad before you do it i'd point the court to cogswell where the city of seattle had a prohibition in its voters pamphlet that you could not criticize your opponent now that is far worse than anything a f b i complains of in this case as the court noted in cogswell from this circuit essentially that was an anti mudslinging provision in a purely political realm you could not sling mud against your opponent and the court held that that was acceptable because it was a nonpublic forum nonpublic forms are truly driven by this idea from arkansas television that you want more speech not less each and i think we're very clear in our brief and very open in the evidence in this case that if we can not prevent ads that the dean and disparag that the arkansas television case does set out that standard that we're when we're talking about this special beast of nonpublic forms we're not talking about what you can do on the sidewalk we're not talking about billboards we're not talking about what you can do in newspapers we're talking about a government owned piece of property the government is allowed a higher level of regulation and that is something that is absent from a tell so much else simply deals with the question of of can you tell somebody that they can't name their band the slants it doesn't look at the countervailing question of what interest does the government have in controlling its property for the reasonable purposes that that property is put forward and that is why arkansas television has that notion to some facts that's not the disparagement standard that's maybe the disruption standard because certainly if you have has as i posited earlier and with opposing counsel if you have a situation in which the writer ship is dropped or people are too upset to ride the bus large numbers then their property isn't being used for its intended purpose but it's hard to see how just putting something offensive on the side of the bus where it doesn't affect those things  be a factual question and we would ask for factual support for that assertion and that that is probably how that one would go as far as reelect donald trump we do not allow political ads on our bus that advocate for a specific client that is an accepted category within within our transit advertising policy i think i am understanding your honour's question a little bit better we did not exclude the f b i ad for disruption but for interference with the the i think interference is a slightly lower standard it's contained in the disruption standard so it's disruption or interference and i think we are just going for the simple proposition that business judgment has to be exercised by people that are charged with operating a multi million dollar transit agency interference basically sounds like ideas we don't want from your description of it because if there's no evidence of actual interference whether you call it disruption or interference if you're able to send your bosses out and you only get two or three calls to complain and you're still getting the same amount of revenue as furnish the records that's where's the interference with it the standard under the tap i believe is whether a reasonable per person applying community standards would believe that it would interfere with metro so granted there is no evidence of interference in the sense of a single writer being denied because of that ad in this case rather what what general manager gannon is exercising is his business judgment that he thinks this is incompatible with the overall metro purpose of increasing ridership council let me ask  running offend you or you think will interfere with your use of our bus system let the county know with one of the cards we've got good they do something like that would it be practical so that you could let people like run the ads they want to run that have political content but have some feedback as to whether you are going to lose a segment of your ridership i suppose they could do that but the standard would be of course this this community standard applying the reasonable prudent person and  so i think in that situation and i'd like to focus on demeaning a disparaging because i think that's truly the nut of this case i mean the reason it interferes with is because it's demeaning and disparaging in that type of viewpoint discrimination if you if you system where there's very haves because you could either and lemonade things that are actually interfering or you could eliminate all political advertising and those things would work downward and it isn't it doesn't seem equivalent to me to go back to judge who owns example if you and i had said everybody should ride bikes and not use these buses because it's bad for the environment in our opinion and it's not demeaning to any person or group but it might interfere so i don't see where there coterminous i i don't believe that that would be an ad that we would exclude under i either category the hypothetical that that judge will provided  but in this even if your ridership dropped precipitously i think applying contemporary community standards we do allow political statements on the bus and i don't think the answer is well you either you either drop them all together or you have no ability to regulate those ads and i think it holding from this panel along those lines would violate cogswell in cogswell the holding is very clearly in a highly political realm you can tell candidates what they can and can't say and that's because of the nonpublic form that decision is binding it's also considered so so distinguishable because the basis of that is if you put in something about yourself it should be about yourself and not about someone else that's really not the situation well i think in this case it's important that misc eller and this is in the record acknowledge that her  viewpoint could be put forward in any of a million ways she insisted on the one way that violated our tap and maybe out of a million there's you know nine hundred ninety nine that violate our tap at the point is there are ways to do it the don't violate the tappan with the first amendment and the arkansas television case required those situations is that f b i compromised to the extent of making that easy fix to the ad so that it meets the requirements of the form otherwise the form closes and we have no speech at all that is a that is a choice that the supreme court has noted is a point to the first amendment limiting speech for for the principle of not allowing the government to impose reasonable restrictions  and i think it's hard to argue in this case and indeed the record would not support because general manager gannon's declaration and dr williams report are under spewed on this record that it is reasonable for metro to adopt the demeaning a disparaging type provision that it has and other provisions that it has and it's tap because that preserves the business purposes of the bus system it puts passengers in the seats it keeps them coming back there is nothing on reasonable about it certainly if mcdonald's didn't we did it we wouldn't be criticizing them if any other business did it why criticize metro and i think that's what arkansas television in those cases stand for is that in that situation where the government is exercising a proprietary function it gets to operate somewhat under the same rules and that of course is limited by reasonable this and it's limited by this idea of viewpoint discrimination under cor demeaning and disparaging content on our buses no one is allowed to use profanity no one is allowed to use nudity to communicate their message those are essentially as the first circuit put it the ground rules that allow us to operate a bus where people enjoy riding it every morning and while what we do applaud or bikers in seattle we have a whole heck of a lot more bus riders right now and we i guess we are to the contemporary community standards wouldn't see those two at odds thank you want to pick up where i was in council left off about the point but why you know why is metro different metros different is of the government they different from mcdonnell the different from any other you know private business because they are the government in the first amendment is a restriction on the government ability to restrict speech it's a break on that in a reasonable miss even a nonpublic form isn't the only component the other component which is the main one issue here is viewpoint neutrality and as i start out the beginning viewpoint discrimination is doesn't matter because the government is engaging in viewpoint discrimination which it cannot do if they want to be in the advertising business and they want to open up their this form to political speech then they have to accept the limitations of the first amendment and those limitations are not just reason allness but viewpoint discrimination and regarding his you know he cites the quinn ileus and the others if you look at tam when the supreme court was describing what viewpoint discrimination is it use the term is that our cases and i was referring to cases dealing with in a in a public forum cases rosenberger lamb chapel the good news case those are cases that we've all cited in viewpoint discrimination in mattel versus hammett it went further in terms of specify the given offense as a viewpoint but viewpoint discrimination as i said is viewpoint discrimination on a cornelius rosenberg and lamps chapel if you permit a subject matter to be discussed in this case is no dispute that terrorism is a subject matter to be discussed you can't pick and choose which just because you're applying it even handedly and they used the example you can you get whether you're disparaging republicans or disparaging democrats or is disparaging socialist or disparaging capitalist the fact that the that is being applied even handedly does not diminish the fact that it is at the end of the day viewpoint discrimination and that's what should control this case and both they did the disruption component and the disparaging component they're interrelated because they all come down to the fact that they oppose the viewpoint of my