may please the court my name is howard hopkirk i'm a senior deputy attorney general with the pennsylvania office of attorney general i represent the palance john continue know the executive director of the pennsylvania state ethics commission and attorney general tom corbett i would like to reserve three minutes for rebuttal granted this case raises the question of whether the confidentiality provisions of pennsylvania state at the exact violate the first amendment rights of individuals who file a complaint under that act i'm going to stop you right here and ask you to define confidentiality provision of before i do let me say this  publicizing the fact that a complaint has been filed with the commission you agree with that right that's correct on it deny the injunction in all other respects so what are the confidentiality provisions apply in must there's an exception to any prince seedings before the ethics commission were only the only thing he enjoy was publicizing the fact of the filing of a complaint see what confidentiality providian is did he strike down because the entire brief is about confidentiality provision and i don't see them well i guess what i'm what i'm saying your honor is you love the no eight is a blanket confidentiality provision and there are a n rated exceptions to that and what the judge has done is he has in effect created another exception which applies to complainants no you didn't there wasn't any of that there wasn't anything else to do well your honor the the but what he in effect did was he create created an exception to the confidentiality provisions under that no one ever action to the confidentiality provisions would permit disclosure that's the exceptions but that's correct you know i don't know the only thing he dealt with the only thing he granted the injunction has to was publication of the fact of the period that's right that's what he did question is is mere publication of the based yes your honor it is content based although it's a narrow it's a narrow content base because you're not talking about the underlying substance of whatever's being complained about but the fact that you're saying you filed a complaint the substance that does have substantive qualifications to review which you like which make it a  everything he or she wants to say about what's wrong correct that's correct or on the only thing that is prohibited under this district court's order here if that person filed a based but it is content based and i think if you look at the for the now decision from the fourth circuit in and the second circuit decision in kemas in ski and the the ninth circuit case linde now some of those support my overall position and some don't but they all show that that it would be a content based subject to strict scrutiny and i think the district judge and all the parties in the district court the the district court's injunction mr stoke would be free to go out and talk about whatever objections or complaints he had regarding public officials it's only the filing of the complaint itself which publishes publicising that interferes with the investigation of the commission but here of course there was no investigation his complaint was dismissed within twenty four hours of filing so i assume he is perfectly was perfectly free once the twenty four hours has it had expired and the proceedings have terminated then talk about  on his appeal on your p r that from the grant of the very narrow preliminary injunction this is not the end of the case there's been no cross appeal from the broad their injunction is is is is beef for you but the the it's very hard to see what the court said wasn't unconstitutional about the confidentiality provisions as far as they relate to a complainant under the act i think what the district judge said was mr stilt was in coming forward as a witness or were or a third party or something like that so we're not touching that but as far as it affects a complainant it effectively is is unconstitutional and cannot be applied i don't think if mr stilt filed the complaint and then waited two months to make his publication that would  still run afoul of the district court's decision and right and i think respectfully your honor i think there's a confusion i want to clear up this prior case which mr still pad where  actually filed a complaint that was resolved there was some type of settlement agreement with the commission that cases over the only relevance that case had was to show that mr still has standing and that this is something he wishes to engage in in the future the complaint does not say that he's going to be filing frivolous complaints or it's just that he wants to file complaints and and publicize them in the future  i think the the the court should look at its own decision in the the first amendment coalition case criminal  all or violating confidentiality in the first amendment in the judge review panel case i don't believe i'm not i'm not sure of that i don't think there was but i'm i'm not positive because this isn't the existence of a criminal penalty make the extent of the prohibition on revealing the filing of the complaint doesn't doesn't that require us to look at it even more carefully and and well i think the first thing you do is you determine whether there's a compelling interest and then the the fact that there's criminal penalties may or may not have a factor on whether the whether it's narrowly drawn or not it's our position that the criminal pennon penalties are unnecessary and an effective way to accomplish the purpose behind the confidentiality provisions and that things like civil penalties are not always going to be affective  because parties may just calculate that well that's a cost of of doing business or if if i want to interfere with the campaign or interfere with the investigation that i'm willing to pay of a party maybe just willing to absorb some type of civil penalty where there's a criminal penalty is going to have more teeth well ok so i think the first amendment coalition although it's in the realm of the judiciary and this is in the realm of elected public officials the the types of interests involved are similar and they overlap and if if they're justified in the context of the judicial board then they should be justified in the realm of the public officials that's where i totally disagree with you the landmark case you point to are the first and then the coalition case and say it controls here but we have the supreme court's landmark case we have the first amendment coalition we have had the since key out of the second circuit landmark these cases all dealt with complaints against judges filed with judicial review boards there are very different interests as all of those cases made clear that operate an advan advantages that confidentiality provides in the judicial review context landmark goes through four of them and we added more in first amendment coalition and and second circuit in kemah minsky and i had this one of my own and we are bound by the constraints of the bench not to even answer a complaint much less try to to get support for for whatever we may be alleged to have done so i'm not the least bit sure that the judicial review cases are are as applicable or controlling as you say they are i say i'm out of time but can i briefly sure answer is do the interest of the commission i mean one to protect the integrity of elections is not to protect the reputation so much of public officials but the integrity of the electoral process and also and it's the same as an investigations under the judiciary board that investigations no matter how the conducted if witnesses can be intimidated by powerful officials just like they might be intimidated by judges or or or other interested parties that those same interests support confidentiality and i see i'm out of time so i'll just save the rest of my time for  thank you your honor may please the court my name is aaron martin i represent jean still is a private citizen we think that the case law is very very supportive of our position we've cited for state supreme courts that actually dealt with the issue the opinion of the attorney general the state of kansas which is on our site the ninth circuit court of appeals which is on our side we believe the judicial inquiry and review board first mema coalition while perhaps it is a little different in route with the review of complaints against judges nevertheless has reason is on our side and even the kemas is he case from the second circuit held that limited prohibition on disclosure would be tolerated but only up until a yes and so we think that the case law is so well established that it would it would be quite divergent for this court to overrule what the district court did there is a deferential standard of review already as to the court's factual findings and  cross appeal now i would mention one aspect of this which i can't say that judge connor specifically put in his order because he didn't but part of the reason why my client was originally  prosecuted and which is the of stated policy of the ethics commission is that if you announce you intend to file you can be penalized for that and some of the amazing testimony that came out the district court had to do with well what happens if someone falsely announces that he or she intends to file is there a penalty for that and the answer by the executive director was no so in that situation we have a criminalization of truthful speech where as f invalidated eleven zero eight k with respect to disclosure the fact it would seem to me that fairly encompasses and intice vittori disclosure also well it's hard you did use to take out this very very narrow piece because you can stand on the lawn and think a these terrible things have been done and then you can walk into the commission and file but you can't say you did and you know i would say also that i think what is happening here is there are actually two fundamental constitutional rights involved not only for in a speech but also right to petition and somehow the government appellants are arguing that well maybe you have the right to petition maybe of the right to freedom of speech but once you combine them and you speak about the fact that you petition now we can penalize that civilian criminally i also suggest that results in what i call the maya when my briefs are constitutional absurdity the more that you look into the implications of this the less and less and makes the less and less defensible is it might even fail rational basis scrutiny because this kind of announcement is not prohibited with respect to a complaint to a district attorney or the attorney general's office and arguably the effect of disclosing a complaint to an officer with very wide criminal jurisdiction is something which is more potentially damaging to the system than would be if it's reported to a state ethics commission which does not have itself criminal prosecut authority if the statute more narrowly drawn for instance that within one week election day no information concerning the filing of a complaint can be made would you object to that i would and i'll explain why the reason is that the history of the case on the history of our country is that a robust debate leading up to elections is critical and under the first amendment is a strong underpinning the reasoning of the district court of rhode island is really a beautiful opinion that was written in the cited in the brief which goes into a lot of that and there are some language i believe that it's not in that case but another case of cited in my brief which says that generally speaking the prohibition on speech with respect to light electoral process does not actually advance the freedom of the op to a process when in fact is antithetical to it that's the word used and so our position is we would agree however judge connor and the testimony at the at the district court did seem to suggest that even the government appellants would agree that they could dispose of a complaint with a matter of a few days so even if it were restricted down to that maybe week before prohibition on disclosure that would be a more narrowly tailored gram of non election statute this is an act that regulates financial conflicts of interest among state and local public officials so you know even if we were to narrow it in the election on things or other areas that we can covered by the act right yes and i would also say that there is a broader issue rather than just state officials in general there's the question of can you even criticize the ethics commission itself and i raise that issue to mr continuo because i said well what if i were to file a complaint with the ethics commission and i didn't like the way you handled it how would i criticize you and if you look at the transcript there's really not an answer that he gives and he almost as well as a good question something of that nature the alex commission is argue that that there is not any need for confidentiality in the investigation here no i would not make up like an argument what i would say vote is that the similar  thread that runs through for instance judicial inquiry review board and all the case law dealing with grand juries where there is secrecy is that the information that an individual knows privately from other sources brings into the process can be brought out of the process and so when a witness goes in testify before an otherwise secretive grand jury he or she can say what he or she testified about and i'm saying it's directly now and it's sad is an what i was it was i was analogizing a witness for an individual filing a complaint providing information from the outside into the system and saying that the individual who provides the information into the system should be allowed to publicize that he or she has provided the information into the system fifty one pennsylvania code section twenty one point six eight and the commission's regulations include an express exception to the confidentiality requirement for quote the divel divulgence by individuals who are interviewees or witnesses as to confidential commission proceedings with guarding information that was already in their possession or the disclosure of their own yes i'm sorry you're correct the analogy i was wrong was the filing of the complaint of the complaint is barred by the pro the confidentiality provisions so you can tell they could say everything they said when they were in their or they can say you can't say there was a complaint filed i mean that that makes those before they file the complaint they can say everything they know of but they can't say that they have filed or on the written voc that they intend to file if if they do intend to file but if they say they're going to file and they don't intend to file then of course that's but if can disclose the statement that they made during the investigation to the commission not a not a threat not the contents of the complaint oh well i see otherwise my client would have been prosecuted over what he did i mean there was there was a real life investigation my clients on investigation the house majority leader and he ended up being the one being investigated because he had told some media outlets before he submitted the complaint that he intended to submit the complaint that's right but he can't do that and he agreed he admitted that he had violated eleven away oh yeah it was a facial violation and the media couldn't disclose because they had not legally received that information because he had violated eleven away when he gave it that's right well under the terms of the asco i'm fully receive the information before they're within the except within the the exception as written in the code yes if i were representing a newspaper ok i think you know just to sum it up here the the right to speech obviously there's a heavy presumption against the constitutionality of a restriction on speech this isn't this speech is quintessential political speech it has to do with the function of government and what we're talking about is more than just an abstract constitutional principle here i was thinking of how you know there's been all the press about the something festering in state government that someone tried to get the ethics commission to act on and the ethics commission didn't act on the complaint how would a private citizen publicize to the world that this body which is supposed to oversee these things is not acting and so i i raise that because this is more than just an abstract constitutional principle there are real life consequences when the rights of free speech are chilled but you do agree that we have a very narrow issue before us today you know honors first i would just disagree with judge perry's assertion assertion that the newspapers wouldn't be able to publish materials that they received in the in the hypothetical she gave because they must have been lawfully obtained before they could be published and if someone sends them something even though that person unlawfully obtained them i don't know  the state ethics commission it was a stablished as an independent apolitical nonpartisan body which was supposed to be different from district attorney's offices and run differently than grand juries which were more which are more political in nature it has a distinction in that every single complaint that is filed with the state ethics commission has to be given consideration and so that's why that's part of why giving confidentiality to these complaints is important because if i if i say i gave a complaint to the district attorney's office that doesn't have the same significance because the district attorney's office could stick that complaint in a drawer but the state commission is actually going to open up a file and do something with what what if i as an average citizen say i have made a number of valid complaints to the ethics committee and and instead of looking into may say oh another one let's let's trial that and that circular politician a politician be politician see why is the state ethics commission not doing anything about this look at all the corruption eccentric cetera he's free to say that he can say you know complaints must have been you know is that much more saying that there's been a complaint as to x files which will notify and blow the cover off an investigation then that is crossing the wind but this is to go to the other cheek stream and say he's not allowed to criticize the state ethics commission now are you saying that but but judge hayden is question is correct he can say i have filed ten complaints complained and they've all been dismissed as hearing that may merit and i say for this reason and that reason that they had their but then although the commission was meant to be a political and trustworthy and as if appointed by god they aren't appointed by god they're appointed by people with interests and maybe sometimes risk through but that the state ethics commission they have the authority on their own to conduct all these investigations and pick it up on their own so the fact that he has filed a complaint or not does not suppress his ability to talk about the failures of the state ethics commission in pursuing different investigations but i just asked the court to you know look at my brief and and we would ask for the district court to be reversed thank you thank you thank you we will take the case