the merits on the eleventh amendment the district court area because the complaint seeks only prospective relief to enjoin unlawful practice going forward and does not seek any compensation for any l es incurred in the past on the merits the district court erred because the defendants are continuing to enforce an unlawful disqualification of student newspapers from a pool of funds dedicated to private student speech that remains open and available to other groups for other forms of speech on the facts pleaded the complaint it states a claim that the defendants are violating the free press clause of the first amendment because under the free press clause as the supreme court explained in minneapolis star the government may not single out or target the press and the court explained the power to discriminate against the press is ultimately the power to destroy the press and the government can discriminate and target the press in at least two ways it can bleed it dry through selective taxation as recognized in minneapolis star were to it can start on the vine by depriving it of the equal opportunity to qualify for certain revenue as recognized in  burden on the press giving rise to a presumption that's got a lot of teeth and so my question really is what about is this a this is a burden that's different because it's it's the removal of a subsidy is there any case that looks like that as opposed to burdening you know that by by taxing a car taxing pay for not yet your honor this is the case but i believe this case is indistinguishable in principle from pitt news in minneapolis star because the selective denial of revenue is the selective denial of revenue regardless of whether that revenue takes the form of advertising charges tax expenditures or direct grants or any other form of revenue that for which the press is otherwise eligible so if we if we accept that the government doesn't have to grant a tax deduction at all but if it creates a tax deduction generally applicable to businesses like the prescience on equipment it can to disqualify the press from the duc ting the depreciation on printing presses i'd like to think about a different hypothetical fica gets a little closer to home to home if the if the i don't think you're saying that the regents couldn't decide or for that matter the student senate couldn't decide to go green and not have the limited student activity funds devoted to print media but if they did i think your theory is that that would still be a burden because that funding would have been removed and then we'd get to the next step where the government would have to show a compelling interest here the government hasn't shown any interest in the case didn't get that far there briefing doesn't go that far character is it your position that that that that with they would just have to advance to the next step so to answer that question in sequence yes your honor the briefing did not get to the stage of discussing compelling interest because the district court sort of dismissed at the threshold that the free press clause didn't apply if the university had simply said we will not f prints of any kind newspapers banners posters flyers invitations that would be a different case i think the free press clause would still apply i think the analysis might be different we would have a different argument but on the facts pleaded in this case the university of the defense did not disqualify all print they disqualified only print newspapers funding remains available for other forms of print banners posters flyers also they did not go completely green the student council continues to print its own newspaper and the exercise of its own speech so clearly they recognize the value of prints furthermore every just cutting there were just cutting off the subsidy of print media they didn't say you can't print your newspaper well correct or are they cut off access to the pool of funds dedicated to student organizations for student speech right and i'm just positing that there are other circumstances where that might be a burden on the student that would be acceptable if we got to the second part of the inquiry where we are a compelling government interest that have to be shown but we didn't get that far in this case correct your honor we did not and i'll also point in the record if you look at the are eighty eight it's the student government funding god they specifically declined to fund website hosting so this is not a case where they've said we want to go green across the board that would present different issues and we would still have an argument that would be a different case  that the university has raised its briefing on though i understand but i'm asking word does get resolved what gets resolved at multiple levels so first of all you know if it gets it it could be a concern that go to activities to which students object whether it's this newspaper or others but that doesn't really address what judge fisher speaking said which is that the regents may have had and they haven't raised it guess but there's also but not not no holds barred right that's going to be the concern of that of the university i fully appreciate we haven't gotten into that yet but the university also has to be concerned about civility and not inciting unrest or our you know even  a danger if we got to the point where there were physical altercations or riots that would be an issue there's nothing in those records is to suggest that this debate has been anything but rhetorical and yes there are a lot of heated views on both sides and that is exactly what the first amendment protects especially on a college campus with a forum expressly dedicated to robust debate on a multitude of topics from a variety of viewpoints and and the university was free in the exercise of its own speech wh to condemn the publication but what they can't do is to censor or deny access to a forum solely based on viewpoint and that's what we're talking about here viewpoints on topics otherwise embraced within the forum their response is going to be that the pleaded this is a forum that remains open to all student organizations except student newspapers and i realize the defense has an alternative characterization of that form but on a twelve b six i'm entitled to have the complaint construed in the plaintiff's favor well their argument is that the supreme court has said you determine the scope of the form by looking to see where the speaker wants access so since you're at the podium you want to respond to that absolutely and we've got access to what we had before  is the form of campus activity funds available to all student organizations which is what the how the form is historically been defined on power in practice on the facts pleaded in my complaint from which to newspapers have been expelled and as i as i've argued the exclusion of student news papers from a forum designed for robust student speech is itself unreasonable in light of the purpose of the forum before we even get to disguise to viewpoint discrimination  speech within a form so of the form of the student activity fund written large there's there's presumably funding in there for ultimate frisbee teams or whatever but and that has nothing to do with speech but also theater drama dance other other forms of first amendment protected activity right and so i think you cite a case out of virginia for this notion that once a form is open the government can't pick and choose  the type of speech that it will allow to go forward and that's that there's the sidewalk talk art case that you that you described for example and so i think your point is that all of those of the of of all of the student activities that receive funding some a bomb not just print media are entitled to first amendment protection so if the government really want to close the form it would have to do so without just singling out the newspapers corr t potentially if the university were to eliminate student activity fees completely or limit it to not to any funding for student organizations across the board we would have a different case so if i'm understanding your argument correctly is that they opened a forum it's a student activities  and of course opposing counsel argument is they opened it they can close it and your responses they're only closing a slice of it correct your honor and my argument is that to allow them to slice and dice the form in that way would turn rosenberger into a dead sidewalk talking in front of the white house and the government said you know we want it's not a public forum and used for chalk in the court said no it's a public forum chalk leaflets what have you seen in that case right they decided there were there was a compelling government interest in not having basically graffiti right in front of the white house as a public forum case not a limited public forum case right and what i said is that case force the principle that it's one form and then once you establish that's a form you apply the standard of review on a restriction speech another forms of communication well that my position is the forum is stude activity funding for the speech of registered student organizations which takes multiple forms they  humorous to recall there are a multitude of speech events alleged in the complaint that the the campus activity fund supports but they're all speech protected by the first amendment there may be other activities funded by the student government that are not protected speech but the fact that speech and non speech activities might occur within a forum doesn't make it any less of a forum for speech people can play soccer in the park or they can hold rallies or put on impermissible we're not there yet because i assume your argument would be that that the in this particular case then we'd have to talk about retaliation but set that aside for a minute if they could they just wake up tomorrow or could they have what we all can up maybe the  before the qual of publish this newspaper and said we're just going to close student activities well the entire university could potentially make that decision student activity funding is set by university policy write you which i appreciated but e c that i think that that the question that is really kind of the logical result of your theory is that i think what you're really saying is they didn't close the for closed part of it and my question is could they have closed the whole thing i mean potentially yes if it but if the closure of the entire forum properly defined my favorite will be six we're motivated by viewpoint discrimination or retaliation there would still be an argument it would be a different argument i admit it might be a harder argument again we're not there yet because that didn't happen ok to say no but hours of my time thank you thank you co and i would like to begin my remarks briefly with the eleventh and then at that i also move on to the foreign definition issues which i would appreciate clarifying for the court the eleventh providing an exception to sovereign immunity in the case of where an individual sued in their official capacity is stripped of their sovereignty in order to be ordered to comply with a non go to in order to comply with law in order to address an ongoing violation of federal law here that's tangent in contrast to where the state is a real party in interest in which in which case as in the ford motor company case in the supreme court where the issue is over the payment of money expenditure of funds from the state treasury in those instances the government is entitled to assert its sovereign its sovereign immunity and the second effects party and does not apply so the question becomes when you have a pro relief in itself is not determinative you can have situations in which the state is called upon to pay money at points in the future and we cite cases to that effect we cite the two seventh circuit cases quinn and  more typical case a benefit would have been terminated or write a cut off and judge question as the same one i have there collecting the very same student free from each student i think sort of had to it's right they all pay and it's a function of how many students that got and then want that and then that pious divided in a certain way that does or does not allow this entity to to to apply for funds but i don't think the outcome requires cost the state any money certainly one of the aspects of sovereignty is being able to decide how do how the amounts you had a much stronger argument when there on the eleventh amendment when they were asking to give us the money back amended complaint as we just want to apply and as the district court said that was a case of artful pleading and that there was little question that that what koala wants hasn't changed one iota ok but if we're required to believe them and to take that as correct then that gets you right back to touch pissers question what about that they just want the opportunity to apply what's your response my response is that that the that there is no distance to be travelled between between being eligible to apply for funds and in fact receiving the fives there there everybody hope lies gets money i don't know that anyone has any then one has ever been turned down by what i'm saying is that the eligibility requirements are set forth in the standing rules are minimal the part doesn't change doesn't the state the same amount of money is collected depending upon the number of students certainly the pot can fluctuate so as the parts remain so even though they they they took the money away here and the money remained and it was used for other activities that's correct ok so the part remains the same in the states argument i want to turn to the first and then i would and i would like to specially address to the form analysis beginning with the definition of the forum it's an important question here and i and i and i want to be sure that we're we've got the supreme court's mandating cornelia's firmly in focus which is that the forum is to be narrowly the parameters of the former to be narrowly defined in accordance with the channel is the media funding category that is a tax and i do want to emphasize it's a media funding category is something that is established under the standing rules in order to change that category it required a vote the entire senate the elected representatives of the of the students of universities california that you just said that's minister of these categories or minister in the application process with the regions have a different policy for student activity funding writ large and it's very broad the student guidelines that that funding can be tonight on the basis of viewpoint or something that is one of the guiding principles correct i think we do have the teaching of cornelius firmly in mind and i appreciate your calling us our attention to that if you think that's right where this focus is from and i'm searching for case father really answers the question that we've got so let me do this and ask you to correct me and tell me where i'm what i'm missing the parties agree that this is a limited public forum right and in fact rosenberger tells us that so we don't have to spend a whole lot of effort on that one right at the public a student activity fee at a public university is a limited public forum ok we know that then we have to define it in reference to where that the speaker over and over is that we opened this forum for this purpose we can close it right the state has an inherent right to close a form that open ok so here's my problem where have we ever said where has the supreme court set a really frankly any circuit any court that the government can open a forum and then and then close just a slice of it close a smaller slice of it in response to a speaker's content because i don't think there's much doubt that this was closed in response to content tonight but i but i certainly can recognize you have conceded that point we haven't gotten that far in the litigation nevertheless the case all the talks about opening a form of closing a form talks about the same forum and it seems to me quite clear that you're closing just a slice so if we were to accept the plaintiff's definition of the form which is the student activity fee funding program written large then we are now talking of we are we are now back into rosenberger and we're talking about a restriction on the forum  so i think that that's what the court is referring to as a closing a slice of the form it's really a restriction on the form and what would you have to show if you wanted to do that you have to show that the restriction is reasonable and one of the purposes of the form and that there was no viewpoint discrimination and isn't that where you get to judge fisher's i think very important point which is this is a college campus it's a diverse campus there's important lessons to be taught about the exchange of ideas but in a respectful and civil manner isn't that where the that it's balancing would come in ok we didn't get there here and in other words a university may very well win that fight but we we didn't get that far right but we have addressed both aspects of the district court also concluded that the alleged motive for the restriction that is viewpoint discrimination against the koala was irrelevant because this is a content neutral and viewpoint neutral decision that that eliminated media funding across the board put it on me would it be a relevant council in a retaliation theory the third prong is to show a nexus right isn't it isn't that and that's the showing of nexus of the university was quite quick to denounce this very offensive speech so on the retaliation claim the court is of course correct that motive is a very important inquiry under retaliation but the unique aspects of this particular retaliation  and what distinguishes it from arizona students is that this is that what is what the players are attacking here is a legislative than that meant a prospective rule of general application and the gross ponk case in the seventh circuit goes into i think very helpful analysis as to why that does not make sense furthermore and those palm relies in part of on the supreme court's decision in o'brian which rejects an inquiry into legislative motive  and establishes the groundwork for many many subsequent decisions including decisions of this court which refused to overturn the face of the constitutional statute on the basis of an alleged improper motive so that's precisely what we've got here we've the recent decision by the supreme court and match a piece of cake decision i do not believe that the court is in any way overturned or even questioned the wisdom of all brian so without commenting on th particular facets of the report concerned with the colorado commission here we're dealing with a legislative act and a brian applies to legislative acts and the student senate is very much operating as a legislature as a as a as idea about this closing just a slice of the form which is causing me a lot of concern to care is my hypothetical someone i ran by my locker x i would like to run it by you and see what you have to say and magine a student election where the candidates are invited to sign up for an opportunity to speak in a student union and they each get their own soapbox or podium or something to make to make their speech at the u n i would agree that that's a limited public for our limited forum because of rosenberger tells us it is right but in the hypothetical a student shows up the want to soapbox for begins to speak from the neo nazi student perspective neo nazi party in and many people find the message very offensive record is that the regents denounced this beach that's right the so your response is we open the forum we can close the forum and his response is well you're actually just posing a slice that's why i come up with this hypothetical about i'm very concerned that if we were to rule the way you're asking it would allow for this type of isolation of content not to tell me why not please what's critical here is the content larger invitation to come all the candidates are welcome he signs up for podium for just like there's a large invitation for the student activity fund and this group signed up for media funds at the proper definition the form in the hypothetical clearly is that  setting in which all four claims are true they'd have to close it up close the entire form for which they could and that would be perfectly appropriate that would be it would affect all viewpoints equally and would be content neutral exactly the situation we have with the medi was it was a viewpoint motivated or not it really and the other side of the coin is if we take your example and you say all of the student activities that have some expressive first amendment content to them were affected the same way then i think you've got a problem at what they did disproportionately burdens the student newspapers that you're back to now first amendment press aren't you different claim different standards surely the frisbee team that there's there's no equation between a the refusal to extend a subsidy and a penalty so there were no we're talking of something very different than what the supreme court tax cut taxes cases deal recognized they can continue publishing their paper in fact they have continued to publish their paper electronically and in print they've raised funds through fund raising and through advertising and they continue to publish their paper without a modest subsidy from the university so the burden is is minimal here and it doesn't it doesn't resemble anything that that any court to date has  recognized as a violation of the free press clause the so so the only burden that was imposed here is a burden that said to the quality you must go out and raise your four hundred dollars to print your publication in response to opposing counsel i asked about this difference that there are these cases about taxing the press one can paper and what i asked is there any case law that helps us about with the removal of a subsidy are the so i do want to return briefly to the question of reasonable pnas because i think that there is you know i want to be clear about what the district court has ruled and why the court was correct in decision to restrict funding that is that eliminated media funding was reasonable in light of the purposes of the forum and the purposes of the form are set forth in university policy that not the guidelines or back to the  back to the regions policies not the not not not the standing rules which say that the so says students must allocate student funding in accordance with the educational purposes of the university and this which activities it was going its it was going to fund rather than media funding ok and so we have this record that's very clearly evident thing a response to a particular article that folks found offensive what is your response to that is that do you think that's irrelevant i think that the allegations of the underlying motive are irrelevant because of the think you are just a few points in the ball first on the eleventh amendment the complaint speaks for itself as to the relief we seek which is eligibility restoration of eligibility to restore access to potential funding there's no demand to cut a check and the record shows in fact not all student groups get all the money they asked for some requests are denied in full or in part if you look at the e r one three nine in one forty and one forty four the requests for judicial notice and sources cited there are paragraphs ten to twenty five on one forty and paragraph eleven on one forty four you can see the history of how organizations are funded and not funded and some are grants and some are not in fact at your one thirty nine paragraph fourteen you definition of form and certainly the issue is whether they've sliced off part of the forms of clothes in the whole form and on the fax pleated i think we're entitled the benefit of those inferences for purposes of the twenty six in terms of a reasonable  before even get to motive what's relevant to reason with us here is exactly the point that this was done clearly immediately following the publication controversial content and as i pleaded in the complaint at the very meeting where they adopted the disqualification they had planned to create a media funds realignment program to continue and streamline media funding there clearly was no preexisting plan or preexisting issue with media funding that it was somehow unreasonable to funds to newspapers along with other students speech was an introduced at the last minute that is evidence both out to the unreasonable ness and to viewpoint discrimination and retaliation the on the issue of viewpoint couple points the supreme court has been clear that on a university campus universities can teach and foster and extort students to be civil but may not restrict their speech their private non curricular yes there may not be an absolute obligation to fund a protected activity but once the government has created a fund for which the press is otherwise eligible our once the once there is revenue for the press otherwise eligible be it public or private it violates the free press clause to have slowed the process from nothing and you know the press does run on a shoestring budget whether it's whether it's the student press or the or the non student press profit margins are tight and so if the government can withdraw when the government takes action to target sure speech and printing of newspapers is as pure as pure speech gets then we do look to motive and the supreme court said that in both cornelius and read and read itself use the word motive and that was even about a a legislative ordnance this isn't legislation even so either way motive is relevant and when you have a student government acting what's essentially disguised heckler's veto we do look to motive in addition to reasonable addition to just proportion burns in the press and so for these reasons the question from the questions