good morning may please the court my name spencer freeman are bear represent crime justice in america with me today counsel tables co counsel savannah blackwell i would like to reserve five minutes for rebuttal if i may  states supreme court and the ninth circuit strongly disfavor the broad categorical exclusion of publications in prisons certainly with regard to core protected speech and when the content of that publication itself is not problematic this court's position has been that it's unconstitutional for a prison official to vanda delivery of a publication simply because an inmate has not counsel and yes i thought your publication was being distributed  not so that is an option that was presented essentially beginning we would make sure i understand your answer are you saying that that it is not available on the thirty three kiosks that are installed in the butte county jail i have no idea at this point if it is or is it is not and that what the court granted the reopening on discovery to show after the close of the evidence the court granted the declaration declaration from a jail command er joke captain jones right he said and he said that they're fully operational what it said was it did say the chaos are fully operational and he did say that crime justice in america could be uploaded stories you know are you this for you to say well it's not there that's not really the point if you have the option of doing it i think we need to treat this is the you are doing it because you can do it well but end up but i think that there's two questions that need to be answered before that the first question is whether or not the regulation that we have as applied to crime justice america that we've asked to be struck down if there's a rational relationship between the band and the legitimate pina logical interest that's being well served because i just record held a trial on that is you and made findings of fact and said that unsubscribed alcohol in commercial papers pose a risk of fire clogging you know closing window blocking section of the district courts you may find it and i think lee written underneath that but it still doesn't change how is are not that there are no rational relationship i don't understand why you are bobbing and weaving on questions that are clearly established in the record so i don't lose any credibility with me i can't speak for my two colleagues i don't want kind of a game are you perpetrating this more this and i'm not trying to perpetrate a game at all if we go back to this the court's order will get heard but you can see that the district court at the end of the bench trial found as a matter of fact that these papers constitute a potential threat to the safety and security of the jail i will agree with you that that is what the district court wro he'll we review that factual finding for clear error i will not no i don't that not the standard of review on a factual finding that is not the standard review and that's what your case that establishes that is that the standard of review is different from what i just articulated you have issues now so what's the case i don't want to hear about the issues i want to hear about a case of overturned versus but the united states supreme court case in two thousand and six where that court the supreme court did their i don't have it written right here i can get it is ignored or brief it is in the brief yes and is that a first amendment case i do not at this point recall if a diverse a member has different rules for a first amendment case i believe it's a first amendment case but i don't want to officially say that right here i don't and i don't mean to be playing games but i don't think that it's a did novo review on all of these factual findings that specially when it's a mix question of law in fact as you said in henderson the application of law in fact requires consideration of legal concepts involved exercise of judgment about underlying legal principles when you're going to look at a fact as to whether or not the excess paper is a hazard for security hazard for fire and you're going to talk about whether or not there's a rational relationship between that potential and the stated goal or the ban and the stated goal that that's a mix question of a lot of fact that this court gets to review no vote to no vote and if you go back and you look at this court's ruling and her look at versus run up which is a in this case that court that panel two things that are really important here that the trial court erred in its findings both findings and conclusion in the first one is that this court said that crime justice in america had in fact refuted the common sense connection which shifted the burden at trial to the sheriff the district court found otherwise in that which is in violation of this court's finding and apparent that of the trial court's own summary judgment finding where it found there also that crime just as america had refuted the rational connection to the burden should have shifted at trial and yet for some reason it didn't that's an air the second thing when we let me stop you there yeah the district court heard testimony from the factual conclusion after a full trial on the merits as it might compare with what we said on a summary judgment ruling under the under the doctrine of law of the case there would be nothing wrong if the evidence was bit yes your honor i'm aware yes of course i thought is that is the law the case that i'm referring to the law of the case as i wrote that opinion was i'm sending it back for trial that's room which occurred that that's true but the but you also stated in that opinion that crime justice in america refuted the common sense connection when you go back and look at the transcripts of the trial and everything that occurred at trial there wasn't any new substantially new evidence there was nothing that undermined your rationale to make that statement in her l verses rana so i think the troubling order came up in summary judgment that that's fine but again when you look at the law case and look at the cain case that we cite in our briefing that that fact alone doesn't matter your rationale is still binding on the trial court unless there is some substantially different evidence that undermines your rationale and there wasn't anything different at trial the one thing that's a different a dry hole is that the  case came to us at trial it was the choice between banning paper entirely or admitting paper entirely if that was still the case i think you might be ok but this is not still the case the choice now is between banning paper and allowing the kiosks so that to the degree that there's a first amendment interest in access to the information by them by the inmates they appear to have access to it if you would be willing to put it online well so be now you're talking about that the dividing line between two different interests would putting the that's exactly right and it looks like the first amendment interest the you have been distributing information in the first amendment interest of the inmates have in obtaining the information is satisfied in a way that was not previously satisfied when the only choice was paper distribution the choice now includes distribution in these online terminals so and while that may satisfy an inmate's first amendment right access to that information two things first i would submit it does not satisfy the publisher's ability to gain access to the inmates that he wants to gain access to through mailing in the publication because we first of all when you look at use the online thing is that what that means no that's not the issue the issue is the evidence developed a trial with regard to the kiosk was extremely minimal the county didn't put forth a kiosk as an option until literally while we were in trial and at that time the software was not working so there's a lot of unanswered questions as to the actual functionality and the decoration there's other things when you go to these jails that have these kiosks these are utilized for a multitude of functions phone calls video visitations requests to medical purchases from common serry e mails there's all these things so when you have one kiosk for eighteen men or eighteen women sorry one thousand people inmates the issue comes down to from a practical standpoint how how much access how much time access does an inmate really have i have to the kiosk itself and that's not even addressing the issue of where is the crime where with the crime justice in america i can be within this within this kiosk display is there something where they have to swipe a page to get to it is it prominent and obvious is it something that makes it clear that this is information that eighty s i think that's right so your argument is that that's that's not sufficient for first amendment access purposes the ratio has to be lower there's no i don't think that there is you mean i don't think that there's some sort of ratio that we can say meet an area that all the inmates would have access to but not all the inmates would necessarily pick up the paper and look at it yeah and i think but then that goes to some of the unanswered questions we have about the chaos i don't think that there's one set racial we can talk about i think that our complain about this chaos is as it sits in this record is that there just is insufficient information as to how accessible this magazine really is on this yes or court found that that was a sufficient enough ratio in order to satisfy both the publisher's interest in access and the inmates interest in accessing the magazine but that ratio is only a ratio of chaos to inmates it's not a ratio of how many people really will have a practical access to this magazine because of the this case is different factually from any other case that has been presented to this court or frankly any of the other circuit courts in terms of the justification for the policy it's based on the safety and security appellant in terms of the factual issues and those factual issues that are key i think are are in terms of the size of the jail fifty five hundred eighty to five hundred ninety inmates that it's not a direct supervision type jail it's actually what they call remote surveillance direct observation which was different from what appellant had presented in terms of evidence of the type of jail that  their expert had experience with which is why ultimately why the district court rejected that opinion the fact that there was testimony by the jail commander lieutenant flicker about the number of disciplinary problems that were specific to paper related issues and i believe the testimony was five thousand eight hundred rule by a lation for four year period sixty percent of those which were paper related and to bolster that opinion excuse me most of that those statistics testimony was look we have to replace telephone books every month and then throughout the jail and there are numerous telephone books and that's because inmates typically rip those pages out as well as the pages from paperback books and other things to clog toilets cover lights cover windows make weapons and other such contraband and so the rational relationship between the legitimate pina logical interest here was satisfied i think is beyond doubt and undisputed factually let me ask you a question sounds like mr freeman is suggesting that the inmates perhaps are having something in the order of a block of time leslie assigned to them and i mean each and make might have five minutes ten minutes thirty minutes to access the kiosk i don't know if that's the case but it sounds like that's what he's arguing and that the inmate is now faced with the task of deciding how much time he can use to order his is not your honor and to ensure that the record is clear that there was a point of time where the p d f version of the magazine was on the kiosk because it was  my understanding was an i t effort to ensure that it could be put on there and so it ended up on there as a and i don't know frankly if it's still on there or not but from the practical aspect in terms of this kiosks they're in the common areas and so anytime an inmate is in a common area they have access to them and that's essentially the limitation is when they're when they have access to the common area there are certain how well developed is the record with respect to this kind of follow up and judge which question as to what that means in practical terms i mean if it is there in theory but not in practice because the inmates are lined up around these kiosks or because the key  software is kind of cranky and slow i mean what do we know about this because it sounds as though this does come in at the last minute sounds as though we really don't know a lot about those back questions can you help me on that unfortunately out of the  record is not clear in terms of the practical aspect and ultimately what the purpose of the turner alternatives is whether something was available for publication meant that it's a bailable to them the idea of preserving the pin a logical interest was to reduce paper throughout the jail and so forms and other things can be available on the kiosk practical aspect that the reason i ask it this way is for me i don't speak for my colleagues but speaking for myself only if in fact the access is not realistically access to the publication i have trouble with this case on the other hand if it realistically available you will so what do i know about whether it's realistically available and i don't believe it's in the record i can present to the court my understanding is it's just like any other touchscreen it's on the screen you touch it it comes up but i ask a lot of other questions like how many people are lined up in front of the kiosk cranky is the system and you're correct your honor that though that is not in the record of course that would depend on the location of the kiosk whether it's in a particular larger common area within the jail or within say bunk style room for for the inmate so the practical aspect is going to depend on where it is located within the jail why do this show up so late in the trials so that we really isn't i'm sympathetic to the trial judge shows up so late that we're not really in a position to have the trial judge sort of develop the record on the  that is also not in the record yarra but i can i can offer to the court technical difficulties that's all that was basically was a problem yes and once once the result and we didn't feel comfortable presenting to the court that it was operational up until the time that we had captain jones submit the declaration and the declaration said we were valborg not sure the exact wording your honor but it was in other words essentially that they're up and operational  that was the implication yes what i thought there was something in the record the common areas are available from seven in the morning to go eleven pm at night or yes for anything just like the telephone so it's anything in the common area is available at any time to the inmates are there and so that may depend on so certain areas depending on where the inmate is located they may have to rely on say the mobile cart and things like that but that's just like any access to a mobile telephone so  i understand your your statement to mean that there are different sized areas in the jail depending on the inmate security classification if he's in the general jail population and he's in a pod there may be i don't know forty inmates that have access to that common area depending on cell capacity and correct your honor although not necessarily all at once because of safety and security there may be a rotating schedule in terms the other thing that i'd want is to focus the court on is that unlike the prison legal news and laymen where that was individual requests by the inmates  appellant is is not saying that the individual inmates request this publication this is the proposed distribution is and mosse thousands of thousands of pages ant would propose every week that's over two thousand pages because it's thirty six some odd pages of the publication to fifty eight inmates or so two thousand pages per week so within ten weeks th over twenty thousand pages introduced into the jail and appellant wants to do that recycling every week or every quarter in if that's every quarter and then i have to correct the record that's over eighty thousand one hundred thousand eighty thousand pages introduced in the jail in just one year that safety and security concern about that huge amount of introduction of paper which is not your ordinary paper not your usual a cup of paper it's a higher quality  thank you i wanted to address a key point here is as we address these kiosk has become such a focal point we have a period of time before these kiosks were in play and so even if the kiosks resolve this cour concern about the constitutionality of the ban then we've got that ten year period before when crime justice in america first requested to send in a magazine and so we're sitting at trial in the kiosks are at some point shortly after trial operational so we do have that period of time where this court needs to examine the constitutionality of the ban during that time and so we would ask this court to make a determination if the kiosk is going to be you know that kind of that and use damage as well as well as a judge to really we did see damages was in junk to relieve the record has evidence of damages the trial court has had no reason to do an analysis on damages when it found when it up held the constitutionality of the regulation i do want to point out on the case i cited before with regard to the standard of review the overturn does that a case it's a two thousand and three case that applies the turner factors and it's citation is five thirty six u s one twenty six  the the issue of clear air for going to talk about the kiosks in the finding about the kiosks this standard for clear air is that it's not plausible in the light of the totality of the record and our problem with using the kiosks as an issue here is that the record is really void of any evidence about the true functionality of the kiosks i would also remind this court that the kiosks really goes towards factor number two but whether or not there is available alternatives for the publisher to reach its intended audience that's factor number two in order to get to factor number two there has to be the factor number one is a cynic on not without which not and that in that factor the court's got to make a determination about the rational connection between the band and the stated interest in mind and the council came up interested the stated interest was a reduction of paper no this stated in interest at trial was the reduction of misuse of paper you know that's a distinction without a difference the objection from the from the from the jail has always been inmates have a tendency to misuse paper the more papers in the jail the more problems we have but when you look at this particular record and the testimony from the jail staff in this record those misuses come from the phone books they come from the jail library cart books and they come from toilet paper the record is clear and i think that flicker testified to this that and inmates don't use him in his twenty six years he's never seen a mate use paper that's considered personal paper of paper the had to be kept within that three inch stack and remember here but he doesn't doesn't see j fall into the former category no they said that if they the testimony was that if the inmate wanted to keep the magazine he was going to have to include it in that three and stack that was a rip going to be a requirement of the i don't know what i was asking  thought the lieutenant flicker testified that inmates for nefarious purposes don't use the letter from ma they would use the phone book page in your case the the commercial commercial newspaper page they would not use something that they were personally identifying with well and that's what our arguments here is that we suisse is established and set forth evidence that these inmates would personally identify with this magazine based off its content would treat it like a letter  opposed to something torn out of the magazine or newspaper or if i think if i can address that i think that let's say they ordered sports illustrated or getting sports illustrated into their that's words illustrated would be part of their three inch stack t at the sports illustrated i think our evidence shows that crime justice in america is going to be akin to that sports illustrated all that does is it gets the paper in the cell then the question becomes what do they do with it and i thought i read in the record that his testimony was that if they're going to use it for bad purposes they're going to grab that rather than the letter from isn't that what the no i don't think so i think that the record was clear and in my memory that anything in that three inch stack that they've never seen used mcallister this morning protecting arizona's resources and children and he will every indian community versus federal highway administration at all