the first case they will be doe versus the governor of pennsylvania please the court my name is aaron martin i represent the if how and i'd like to reserve three minutes a republican i'm placed that would be great if your honour's i represent a private citizen who is licensed as a public schoolteacher in pennsylvania he is today at this very moment under threat of criminal prosecution if he was so much as disclosed the mere existence of an investigation into his conduct prosecution by whom by the commonwealth of pennsylvania  well what person criminal prosecutions in pennsylvania can be commenced either by the office of attorney general or by the various district attorneys can the secretary of education bring such a case not so secretaries out the secretary has threatened this that this law be appl of that happening however in the challenge to same sex marriage in pennsylvania when that was brought the attorney general refused to defend the law in pennsylvania and the governor's office of general counsel did in fact undertake that defense and that was pursuant to a similar provision but that's not a criminal that's a criminal case correct does not doesn't export to young say that there has to be some realistic potential that they will do so if i agree that young requires that the respondents be linked to the action which is challenged the reason we've named  because they are the months who have sent these letters that have put my client under a written threat of criminal prosecution now what link in the chain they bear they will certainly not be the charging officials but they are the ones who are involved in stating this threat that could very well lead to the charge and that's why we named this threat against my client continues despite the fact that the investigation that was initiated was resolved without any charge without any hearing and in fact with no finally of misconduct whatsoever we submit that the district court erred in denying without a hearing to our request to preliminarily enjoined this statute which restricts speech about the workings of government and then in fact this court should remain and would binding instructions that such an injunction be entered and i'm going to advance two reasons today why that should be we submit that the a pallies cannot establish as a matter of constitutional law that this restriction on speech can satisfy strict scrutiny which is of the applicable standard given that this is a law which restricts your argument is i take it judge jones just sort of said well he's not going to be charged therefore there's nothing really here is that it well judge jones said that the reason now of course is his order was very scant were but he entered that order after the investigation the disciplinary investigation had terminated however the letter which came to my client the second letter renewed the threat of prosecution if he would disclose him so my client is still under a threat of prosecution if he would even tell his own wife that he has been exonerated from an investigation which he also was not allowed to disclose but if you lose on this plan in a junction would it go back to judge jones and then he could face but again a final judgment here what about that there would be a trial in a permanent injunction but your run of the reason we requested a preliminary injunction is in part for what has happened in the history of this case where now eleven months on where my clients fundamental right to speech has been suppressed and the precedent of this court in the supreme court is that even a momentary suppression of the right to speech is something which gives rise to the need and the propriety of equitable relief i mean how much longer must my client go being unable to talk to his own wife and to his family members about a major occurrence in his life without threat of being charged with a third degree misdemeanor that's exactly what has happened here the couple of doesn't seem concerned about him talk to his wife or tilling than the public at large it seems like there defending the case until i hear from counsel but the brief indicated that they're concerned about fishing expedition were really your clients not interested in just sharing this information and speaking about it what he's really interested in is finding out who made a claim against him well let me respond to that here here is the very narrow scope of relief we are requesting a preliminary injunction which allows him to disclose truthful information lawfully within his possession about a closed investigation and why not a permanent injunction that's better it's better really what it will be and we will be seeking and we did request that in the complaint bartle so you're not interested this isn't about digging through the files to try to seek retribution against somebody now it hasn't you know it has nothing to do that just about having the same ability to speak to someone who is found guilty and publicly reprimanded under the same stage that's exactly right and that's exactly what we're seeking and we believe that that arbitrary distinction such that the guilty teacher ma the innocent teacher is gagged is something which shows that the restriction on the innocent teacher cannot be the least restrictive means of advancing whatever compelling governmental interest the a pelleas put up the just let's just stop for a minute the relief you're seeking though is is basically taking this law off line for everyone not just your quiet re your honor let me explain why i think how that misunderstand heroes the law is unitary meaning it is not broken down into subsections where as a says this applies to state employees b says this applies to teachers see it applies to the press it is one law that says anyone my client is in his own position just by virtue of who he is his only response to being threatened with this law was to challenge this law but we are not seeking relief beyond what he himself would be entitled to it's not a class action we're not seeking relief or anyone else he merely wants to be able to re historical facts of what happened and there's a personal benefit to him for doing that because if he's able to disclose in this factual situation which was of some notoriety if i appreciate what you're saying he wants but if we give him the relief he wants wouldn't we have essence be doing what was done still where in that case the public official employee ethics it was sell because it didn't survive strict scrutiny is what they would occur here to judge sugar's his point well your honor that would be if the court would make a declaration as to the constitutionality of the law itself at this stage in the proceeding where it's a preliminary injunction we're only asking that there be a finding that he is likely to proceed in a trial on the merits now the court in still which i argued incidentally did go a little bit beyond what might in fact have been merely a preliminary injunction ruling but i think what was happening instead was the i don't want to speak for how the court was thinking but in that situation that that precedent actually illustrates another problem with this law as it's applied who ever complained about my client is now free today under still to go tell the entire world that a complaint was filed with the department of education about my client and can do that at any time my client is powerless to respond to that he came here say i did do that he well he could say i didn't do the underlying thing that you're saying i did wrong but he's not able to disclose that he's been exonerated that the evidence is so scant that that complaint never resulted in a charge he can't do that now he could lie and be out of jeopardy from the statute this is the irony of the whole thing if he said no that's not true there was never an investigation he can't be prosecuted because he hasn't disclosed the existence of an investigation are you seeking here just send it back to the district court and  on the merits or or water we are asking for the case to be sent back at a minimum at a minimum it was an error for the court to deny this relief without a hearing because there is that i would argue not merely colorable been an undisputed in every material  factual basis on which this issue can be decided but we are asking for this matter to be sent back with instructions to the district court that because this law is so arbitrary in its restriction on speech the appellate cannot demonstrate as a matter of first a jurisprudence that in fact this is the least prospective means of accomplishing the government interest this clearly suppress the speech and the suppress of speech about the operations of government which is entitle to strict scrutiny given that there was no hearing by appellate could not carry the burden of proving that there was satisfaction of the strict scrutiny standard however we believe as we said that they cannot do this on remand i've mentioned that it's been almost an entire year th my client has been unable to speak even to his wife or family members without fear of criminal prosecution i'm going to mention one other thing to the cost to have an attorney today arguing in front of the united states court of appeals in filing fees alone has been in excess of nine hundred dollars now i submit that that is an extraordinary expense for a man to be able to speak to his own wife without fear of prosecution this law is so much we are a van daal that would i'm sorry you want to buy is going to turn  on that said his wife and then she gets angry with your honor we are that is not our principal concern but i use that as an illustration because this was sweet so broadly it would be illegal for him to talk to a mental health professional about this a clergyman now those conversations might be privileged but they're not immunized and here because of the actual fact that communication is itself criminalized there would be a crime fraud exception anyway the contradictions in this statute as applied to my client multiplied the more it's analyzed and we are asking the court to do what's right and within your power to do which is to grant the summary relief so that he will be relieved from the speech prison that he's been and you hold the key and we humbly ask that you would use it where did you request a hearing in the district court we filed a motion for a preliminary injunction and did you ask for a hearing or did that issue come up was that directly addressed or  he was exonerated the district judge mistakenly believe the matter was concluded it became a move this issue essentially correct and no longer saw that in fact there was the ongoing suppression of my client's speech rights which was independent of this disciplinary court my name is sean kirkpatrick with the office of attorney general here on behalf of the governor and the attorney general and secretary of the department of education and if i could correct i believe some misstatements that were made about the authority of the office of general counsel the opposite general counsel cannot prosecute crimes on behalf of the comma what is being referred to by my friend on the other side is section three zero one of the commonwealth act which gives the opposite general counsel the ability to defend commonwealth agencies and even initiate civil proceedings but the authority to prosecute on behalf of the commonwealth is exclusive to the district attorneys and to in limited circumstances the office of attorney general pursuant to i believe it is to a one of the commonwealth attorneys act that there was a threatening letter from the officer general counsel there was yes your honor on behalf of the attorney general and it was intended to have a chilling effect obviously i disagree with why was it sent because it was to inform in fact form that finally this law we're going to be coming after you absolutely because when we was going to be coming after the attorney general no your honor who the district attorney the district it would be the local district attorney it would be like any other crime shoplifting  it would be a crime that would fall to the district attorney it's not just sherry declined it unless the district attorney declined it there in the attorney general hood has the ability to bring it no not under that provision your hon r there is a provision within section two a one that all allows a district attorney to refer a matter to the attorney general because of conflicts or because the district attorney does not have the resources necessary to hear soon the attorney general has new authority here to to enforce this law that's an open question your honor and if i can explain why that's an open question because goodness knows i don't defines come up agency is a defined term there's there's two possible entities executive agency and an independent agency now the independent agency is a enumerated list of the milk marketing board and the fish commission and the state ethics commission which was why we were a proper defendant and still the pennsylvania standards and practices commission is not listed there so then it becomes a question of is it a executive agency and it is come off court has ruled that it is an independent body but quite frankly to this court it does have certain aspects which it is separate from the the governor's office but it has certain aspects which might make it an executive agency we don't know and i think that's telling because we have never prosecuted anyone under the staff and you have no intention of doing so we we have no intention of doing and so we can enter you know we this court said that there must be a real not a family likelihood of enforcement and i mean why not make it official are you objecting that's my question are you are you can say w date maybe we don't have jurisdiction is there no case or caution i don't believe there is your honor i know that's what we argue in our brief i can tell his wife that mr door neighbor mr doe could always tell his wife because there is an exception under the statute that says that you may nothing in the confidentiality provision prevents you from making any communications to anyone to aid your defense his wife wears a good defense is over well yeah but he wants to tell people now that is correct when he presumably some people in the region probably heard that this fellow doe was under a cloud that's the whole point of this whole thing he wants to be able or in from his perspective he's been officially exonerated and it's not farfetched to understand why he might want to be public about his exoneration isn't that all that's going on here two points on that your honor one is he may speak at whatever length he wishes about the criminal charge that has nothing to do with this so what clout he may be under because of the actions he took in his neighborhood he completely at pre to discuss and deny and refute the second point is that this statute was created to pretty mainly quite frankly to protect teachers and that's why i understand it was well intentioned but it seems a lot like still if this seems like a a sister case to still i disagree or on of you've got you've got a gag order on on someone who's been deemed if not innocent charges unfounded and you're gagging the person from telling whomever he wishes that the cloud that he was laboring under for whatever period of  time was lifted and in the presumption there with the cloud being lifted is perhaps he was falsely accused number one your honor no one knows of the clout that's the point of the confidentiality purpose and secondly in still the individual who was at mr still was the one who filed the charge with the state ethics commission and also there is a big difference between public officials and people running for public office and teachers and students if a if the legalities are mr martin's already conceded that they  interest in outing the complainant and again maybe i'm being too pragmatic here but there seems to be some daylight between both of your positions where everyone could be made whole and made happy here if the if the teacher the complainant i don't know if it's a teacher administrator or whom if the complainant can be protected then the intention of the legislation is is satisfied and if mr doe can speak his mind consistent with the first amendment without outing the complainant than why does why don't you both would but there is a process in which he can go in front of the commission  tried they denied it and he did not appeal to the comma court which is the process so we get again get back to it's we're no longer talking about a facial challenge and to be fair to the district court the injunctive relief that was requested was very much broader than what we are now talking about right now but the what we would suggest is oh i'm sorry so that's the facial challenge fee as applied to challenge that we're now talking about just as to mr dell the question becomes as applied by whom not the governor not the attorney general  case now if this court disagrees with that the the normal course of this procedure got interrupted we think rightfully so but if this court disagrees what we argue in our brief and what we argue now is that you should send it back but to have a hearing that this court should not without a record and in a vacuum make practical determinations as to what injunctive relief is proper in what context without giving us any opportunity to have a hearing and present not only indeed not even a finding by the district court as to whether this is a content neutral or content based statute etc we that  violating your heart or typical role is a court of review rather than a court of first view we think it would be wise for this court to have an opinion upon which you can review and you do not have that beyond the two sentences of the order and we interpret that order as a recognition that there was no case and controversy but if this court disagrees if this court finds it has jurisdiction or that eleventh amendment is not a bar then the proper avenue would be to send it back and we can have a hearing but there's a case or controversial no oh well your honor i believe the court did and it said once there was no threat of prosecution none of the defendants had any role in this case anymore because this is a statute that the commission regulates has promulgated regulations for and that the district attorney for the municipality actually prosecutes so that was the recognition do i wish i was standing here on top of an opinion yes i do absolutely but that i believe is the correct reading of the order if however this court disagrees we suggest respectfully that the court send it back down to finish that process have a hearing after all creeping and how the district court render its its decision and then we can actually discuss this with our record i mean i take it maybe it's come through in your brief but i guess it's a little confounding for you folks this is not the average person the laws is is meant to get aggro i guess well that is absolutely true the the law is designed to protect teachers that's why the meekest filed a brief in this case their members or teachers but it also has the dual responsibility of protecting the children protecting parents making sure that people feel comfortable coming forward and making complaints i mean you can but nonetheless the broad sweep covers your friend across the aisle and if there's a case in country perhaps we need to have a hearing to explore where the parameters of that why doesn't the attorney general have the power to prosecute violations of the confidentiality provision under section seven thirty two dash to the five and six if the commission refers the case to him to six yes well that's where i was discussing whether the commission is in fact a hung up agency under two a one and you're saying it's not or talk weird or i'm saying we don't know because that has never happened in the history of my office we've never gotten a referral and we've never prosecuted anyone and quite frankly i've asked several people who've looked into it and there's no case law that i can find looking into this and we would have to once a referral happens make that determination at that point which is why i say that it is not likely that we will ever be prosecuting especially given the fact that i'm standing here right now why don't you i understand that why why it is you being here now why should they give mr martin confidence that the attorney general would not prosecutors claim because i'm saying that we have never done so in the past it would be one thing for it is that it doesn't matter there's a first time for everything but  would matter is if you're willing to state on the record we will not do so in the future such a consent but consent decree or consent injunction well we won my office can't enter consent decrees and to i do not have authorization to speak on behalf of our criminal division i'm saying what in looking after you also if someone gets in charge of a criminal division and says hey we've got a problem here we've got too many people exonerated falsely or wrongly accused of  teachers and now they're talking and they're raising a ruckus and now we were going to prosecute them under this law that could happen it it's seems unlikely but it could happen when the question before this court then is whether under the right circumstances of all dominoes following the right order whether the legal costs ability of potential criminal prosecution is a sturdy enough reed upon which to stand eleventh amendment is my time is expect much to one of the points the council made the attorney general's office is not so ball as to say what it is hinting at which is that we should have sued all sixty plus district attorneys in pennsylvania but apparently under their reasoning that's the only way we could be assured that there would be no prosecution because my client could travel anywhere in the state in fact merely broadcast the information anywhere in the state and potentially that would be a proper venue for prosecution now that that's an absurd prospect then an individual challenging a state law would have to sue sixty plus local officials when in fact the attorney general himself is the chief law enforcement officer of pennsylvania as you heard does have jurisdiction at least in some certain circumstantial how do we know from the what do you say about this agency issue that mr kirkpatrick was referencing well i submit to the extent that that's unclear that is on the state that's on the a pelleas that is not my client situation given that he's on the receiving end of these threats and for him to stand up and to suggest for the come up to suggest through their agents that this is never been prosecuted before well i've never heard of that being much of an effect of legal defense in a criminal courtroom i suppose maybe that's happened a couple times in our history but that doesn't give my client a whole lot of confidence when he has gotten two letters within the past twelve months threatening him including the exoneration letter and that's probably the most galling of all because with that exoneration letter this process was over we are now talking about his ability to reach cite a historical fact of a perceiving which is over which will never be opened again how can they argue that in fact there is harm to the teacher disciplinary system for my client to be able to say something about a now closed investigation for a proceeding which will never be reopened a guilty teacher could and yet mine cannot and that's why we've gone to the extraordinary extent of asking for this unusual relief because we do believe that there's no way strict scrutiny can be satisfied and unless this court is going to say and agree with the unvoiced yet suggested course of action the council has said that we have to sue all sixty plus district attorneys of pennsylvania to get relief i submit that a practical approach and one which does not a family eleventh amendment is that the chief law enforcement officer of pennsylvania with criminal pro statewide is in fact the proper respondent for a suit such as this site even if that's true don't you still need relief from the district attorneys because if injunctions entered blocking  general from prosecutor client that does not impair the district attorney in the county in which till resigns from doing well that is true in a technical sense however we are confident that the district attorney will respect an injunction against the attorney general it's almost u we we don't have much to go on here well i your honor i don't believe findings are needed and the reason is that as a matter of law the statute fails because it's undisputed as a matter of fact that this law is applied arbitrarily meet whereas the been it's clear that on first amendment case this court has things to go by and that those elements are in fact satisfied and that's what we're arguing to this court thank you counsel thank you thank both counsel for their excellent