thank you your honor my name is collingwood ellen from sidley austin appearing on behalf of the plaintiffs and the appellant's i'd like to reserve three minutes of my time for rebuttal and i'll watch the clock but i am aware that the court has given us a significant amount of time this morning so i'd like to take just a minute at the beginning to set the stage for what we're discussing today could you just speaking to me and i carefully thank you yes your honor the public's ability to observe governmental proceedings is vital to the first amendment's express protections for free speech and a free press and the right to petition the government there are of course open questions about how far that right of observation extends but this case doesn't test those boundaries this case is about executions and this court has already held that the public has a right to view executions and this case which is still at the pleading stage asks for no more than the ability to observe critical facts about three facets of an execution that would all be observable but for arizona's policies of concealment yes a couple structural questions about the case yes your honor first of all the district judge did find in favor of the capital defendants on a procedural process right he did your honor yes and what is jurisdiction this court has jurisdiction because our complaint had three categories of claims it had an eighth amendment category of claims fourteenth amendment due process category of claims regarding arizona's changes to its execution protocols and a first amendment category of claims regarding access to information about executions the district court dismissed with prejudice our first amendment claims but in large part did not dismiss our fourteenth amendment claims in our eight to the final judgment is that excerpt of record twelve so you can find it there with the district court articulated that his entry of judgment on the fourteenth amendment claims constituted the final judgment in this manner then i don't  also going on in the district of arizona that was in front of a different judge with different plaintiffs i am not aware that there was a settlement there was summary judgment in part for the plaintiffs and then the case proceeded to trial on claims that were similar to the those that we have vance here  i believe that after that trial in large part the judge decided for the state and where is that case it is appealed to this court and i believe briefing in that case is stayed pending the resolution of this  right it is your honor there have been a number of different protocols and heard throughout the pendency of this case the current set of protocols appears in the supplemental excerpts of record submitted by my colleagues june or july of two thousand and seventeen whether you can whether the witnesses could view the execution from the beginning to the end we would say that it takes out of the away feeling not not as i and i may it will touch on later it is our position that viewing includes the items that we are seeking but for what i take your question do you only observe actually observe yes your honor the new protocol removes the issue from this case about the curtain being closed in the discretion that the director used to have to close the curtain that was in our complaint right it has been addressed in the newest version of the protocol ok the district court in this case incorrectly dismissed our first amendment claims and did so without leave to amend but we have more than sufficiently alleged that arizona's policies violate our first amendment rights to view executions and access courts so we asked this court to reverse and allow us to proceed to discovery and so i can address first the right to view executions claim and then later i'll touch on the right to access courts and the leave to amend issue on the right to view executions portion of this case there are two different ways to approach that issue each of which get this court to the same place the first is that this is a simple straightforward application of california first amendment coalition honor the three items in dispute are the nature of the drugs the sounds made during an execution and the qualifications of the person's rights so what's the why are we talking about visually observe them because in california first amendment coalition versus w this court defined the scope of viewing to include quote the elements that are sorry the quote begins now inextricably intertwined with the process of putting the condemned inmate to death and in our view the sounds made in an execution the qualifications of those who have to administer drugs and the nature of the drugs themselves are inextricably intertwined but are there any cases saying that the elements are inextricably in the times with feeling other than this cour previous decision in the preliminary injunction from this case that would versus ryan decision no your honor anywhere in the country yes in the middle district of pennsylvania there was a decision in philadelphia inquirer versus wetzel which we discussed in our think the second way of approaching this helps to confirm that woodford does apply and that the first amendment right of access does attach and that's using the basic history and logic test of the first  amendment that test holds that the first amendment right of access to information attaches when either one the place and process historically have been open to the press in general public or to public access plays a significantly positive role in the functioning of the government process and in our complaint we amply allege both a history of access and a logic of access to the elements that issue beginning at excerpts of record two six eight we then proceed for twenty pages to discuss the history of executions in arizona and how sounds sites information about the instruments of death much like it is separate the sound issue from the other two the sound issue seems much easier from your point of view and in the sense that i mean historically what you could see you could hear so that doesn't it doesn't appear that anybody was prevented from the but the other two issues are a lot harder understood your honor and so i'll minimize the time that i spend discussing sounds in our complaint beginning at excerpt of record two seven one we discussed how it  known fact throughout the nation that all sodium thiopental used to conduct all the full injections was made by hosp era and later by lund back and when those companies ceased providing that drug to the states states turned to compounding pharmacies excerpts of record two seventy nine and two eighty we discussed how arizona then began obtaining its drugs from a pharmacy operating out of a driving school in london at two eighty four we discussed how arizona received drugs that had become expired at two eighty eight in two eighty nine we discussed how a district court in arizona ordered arizona to provide the exact information about the drugs that were currently seeking and up to ninety seven and to ninety eight we discussed how even after the execution of joseph would arizona again intend  attempted to obtain drugs from overseas from india that were seized at sky harbor airport  s medical setting which is the closest analogy you could draw you would be able to see not you know from up close but from a decent distance the logo on the drugs used the certifications of the person administering the drug should be able to tell if they were a doctor or a nurse or paramedic or how you just see that one from their uniforms two from their name tags three from you know usually words written on scrubs but the point is yes that is one way that we would approach this argument but it's not an essential way to decide this case because this court and the supreme court has long held that memoranda transcripts filings that go into a particular process are necessary to unsigned vacated of this court's decision but at most it means that the district court had not abused its discretion in entering a preliminary injunction and i think we can take from that that if there was enough there to plausibly support a preliminary injunction here there's more than enough to at least p a claim but there's a more fundamental fact about the previous iteration of this case in the wood litigation that is worth noting which is this court's decision and the supreme court's decision to vacate this court's decision happened before the execution of joseph wood and things are very much changed the state of arizona represented to the supreme court in their briefs to the united states that quote and this is in our complaint as well  at two sixty three nearly every detail about mr wood's execution has been provided to him and to the public but that was very wrong every detail was not provided to him that goes to i understand it the part of the recognise rather forcefully actually i don't think that's true your honor because the part of this case that was before this court before and that the petition for certiorari was was taken on was on the first amendment piece not the eighth amendment or the fourteenth amendment pieces and obviously to this day because the public might have but i'm not understanding how the fact that the arizona did not do what they said they were going to do for the umpteenth time leads to the fact your ability to get information about the manufacturer and and and you're using the  quality is a drug and i don't know what you mean by that but something about the drug other than what it is and how it will be used as i understand it yes there are two different questions there i can pick up on  quality piece at the end which is simply that and again this goes a little bit to your earlier point that our complaint was filed well before the current iteration of the execution procedures were at issue  what we are seeking about the drug at the time we filed a complaint arizona obtained its execution drugs from branded manufacturers and simply being provided by an f d a regulated pharmaceutical company conveys a host of information about the drugs such as its purity and its stability that was represented in the wood to the supreme court in the wood and wood is what you're saying you know that's our argument now i think in the wood execution though to go to your other point it wasn't just that arizona did not follow its protocol it was that the public did not know then and still does not know now why the execution when to wrong in part because they couldn't hear what was happening in part because they couldn't see when arizona was part is out of the case now yes because i've asked to put aside so now how does it get you that information about the drugs so for the information about the drugs i think we can we should turn to the logic point of the test because that's independently dispositive of the of this issue even without a history of access and logic is a shorthand way of describing whether access plays a significantly positive role in government functioning and this court has defined a positive leave salazar to include preventing wrongdoing spurring debate strengthening government by exposing its flaws and in the execution context in particular ensuring humane executions and our allegations in our complaint are ample on those points we discuss how access to information about the drugs that arizona uses has helped in the past and would help in the future to prevent the state from behaving in an illegal d a lawsuit and about seizing about preventing arizona from importing drugs that are misbranded from overseas that does apply if they tried to do that with sodium thiopental which is now one of the things in their protocol i see that my yellow light is morning may please the court i'm dominic trained with jeff sparks i represent the defendants of holies the question in this prison access case is how far plaintiffs can stretch what this court  it's coming out in the prison but it certainly is and this court in woodford i'll direct the court attention to page eight seventy seven of that case i think we all kind of agree that woodford is the controlling precedent from this circuit the court there says our level of scrutiny must be guided by the line of cases addressing constitutional challenges to prison regulations rather than those governing access to governmental proceedings then it goes on to describe the court's hands off attitude to prison access to overcome as a legal matter is whether a constitutional right exists to discover this information under the first amendment and start with the auditory viewing yes what i  wasn't quite sure what the district court held about this but what fruit in every other word for it and the history there would for it relies on certainly contemplated but you could see chamber so that they can hear every sound during the entire when you describe the physical set up yes your honor as an initial matter the room in question is now open from the entire time that the person enters through his being declared to see  assistant like physical like is there there's a glass window it's not soundproof which is an important thing it's actually interesting that slips in the reply brief for the first time this concept that it sound proof it's not soundproof they don't allege that in the complaint which is of course the operative thing here and nor could they it's just a class window like here which goes to my point in response to judge her son's question which is the audio that's available is sort of natural sound but through glass so the same way that if i were in here in the question and got really terrible i started to shriek in pain someone walking by is i guess that's the roof but someone walking by on the roof would be able to hear loud shrieks of pain but they wouldn't be able to hear every little noise or if i reference mr sparks by name or something like that and that's what we're talking about opening up to discovery the other thing that i should know at the level of the facts of how the protocol  while the t v is on the mike is on through the insertion of the i v line yes around its turn which point it's turned off correct right and that is i think consistent with the history and tradition of what a person can hear the audio that would be available to someone attending a town square hanging would not be perfect miked up audio you'd be in a crowd the person would be up on the gallows ok well then why not i mean maybe you're right that you don't get the right to amplified sound but i  think you would the public is entitled at least to the sound that would be available if that glass partition were their right because that historically is how at least when executions were in conducted in public so i don't think you have any sound basis to say that we can kind of you know seal off the execution chamber and prevent just whatever could be natural i'm going to push back a little bit on your honor's promise i expect you well i'm going to say that oh i think of it why is that wrong right so for one thing i consider gas chamber executions those are part of the history and tradition as well and then as it at another at a legal point that sort of apart from the historical facts of this of this practice is that the standard changes with the means and we know this from this court seattle times precedent the standard for history of access and for the second prong which also helps to answer your honor's question which is there conjunctive we joined by the way the rest of the history and tradition this is under press enterprise in the supreme court and it has to serve a significant positive role in the functioning of the particular practice in question it's direct language from press enterprise so it has to be a significant positive role the marginal gain from having sound mike is nots a significant positive role at all here i thought you were going to respond to my stop using the miked up ok oh sorry so i'm just because  and i think i agreed with you that maybe you don't get amplified sound but i'm i thought you were going to respond to some sort of substitute for not having the glass that so fine you're not going to have it's not going to be i think some term in your brief that was colorful but it struck me as irrelevant but just like a substitute for if that glass partition weren't there what could we otherwise and i'm taking too long to get to it but my response is in part the second prong of press enterprise too which is in this current environment where you're trying to carry out a perfectly constitutional sentence having access to the to the voices of the medical team for example and the risk that they're identifiable by their voices or that they use one of the each other's names especially in an emergen likely to involve any identifying words by the people who are going to insert the the i v and that judgment i think is entitle to all the discretion that turner affords which is why i sort of began this discussion by pointing out that this is a prison access case it's the hands off environment of prison regulation and that the supreme court has upheld countless times hell how john's hell i mean you start with palin saxby i mean they actually begin from the premise that nobody actually was trying to restrict access to the prison for purposes of not not not being able to see what was happening in the prison and i guess the closest that the reason why they're there weren't allowing these interviews is because they had security you know separate security and other reasons for enjoying it but the assumption was that the there was no attention to restrict  knowledge and access to what was going on the prison the purpose for which i saw it and let us to wreck the trying to do that this is another words your explanation for why they want to do this is specifically so that you know the public and the kno and he knows less about what happened during the execution than otherwise what well i don't know that that's a complete picture of the state purpose and restricting as the goal is for us to be able to carry out  constitutional sentence we know from glossop the supreme court says that the death penalty is constitutional is settled and it follows as a logical matter that there must be a means for carrying it out so the reason for the state doing this and this is again getting to the standard from turner and it's sort of turner plus because woodford says we're not going to do just rational relationship it has to be a slightly closer fit and this gets so in with that in mind the state says we're going to take steps to preserve  sources and personnel so that we can continue to carry out this constitutional penalty but you're being a little you know you're you're saying two different things here you're saying yes we can restrict this so people don't hear the voices of these people the sound for the whole time we're certainly open to that although i don't think the state feels compelled to do it the goal here is to preserve the enemy of these people during the time when we think there might be emergency  for we actually sort of suggested that the fear of because it's mainly fear of retaliation right and i thought we basically said and wait for that that doesn't cut it as a means of at least as into extent we're kind of balancing the public's interest in getting this information versus that concern i thought we bit basically said no it's a no go to two responses your honor the first is woodford acknowledges and this is on page eighty two of that opinion prison officials may pass regulations in anticipation of security problems prophylactic measures are ok it doesn't have to be the case the others are friends on the side sort of insist in their briefing that we have where is the threat who's saying that they're going to come get the nurses or whatever that's not necessary prophylactic measures are ok and this is a line of cases long as it's not totally speculate and i think in woodford we said it was exactly that that there had never been any instance that anyone had ever spoken about in which somebody who had participated in an execution whose identity was revealed was the subject of retaliation in any way which gets to the second part of my response which is that times have changed unfortunately since woodford was decided in two thousand and two we now have courts all over the country including the supreme court and  unreasonable especially viewed through again viewed through the lens of deference that turner requires for prison officials to say that the same sort of reasoning about pressuring individuals involved in carrying these executions out i mean i must say that i am concerned about pressuring because we're back to really a first amendment restrictive reason i e you don't want people  to know things that would cause them to ask someone else to make moral arguments to someone else and say don't do it now i understand that there's concern that there would be harassment i don't know what the harassment supposedly consists of but again with regard to the medical people there's no record of it whatever that's that's correct although i'm pointing out that this is a reasonable restriction when you view it especially through the prison access portal as as is absolutely necessary in this case and it's not not i'm not clever enough to come up with this stuff on my own the eighth circuit on bank in sync takes this up the in re ohio execution protocol which we cite in briefs talks about it as to this the intimidation of people who carry out or work on execution teams the ohio case is one that the court below cited and found to be persuasive all of this is totally the same way that you can pressure from a silk it's actually pretty much easier if you find out who a doctor is to go and picket his house and get him to say enough's enough i'm not going to do these procedures and what i mean i think of this as involving a balancing of the prison's legitimate interests and i don't doubt that the interest you're expressing has legitimate but it's got to be balanced against the public's interest in getting access to this information so it seems to me it's quite a different balance the balance is being struck differently if they're demanding we want the names home addresses and phone numbers of every person who participates in a in an execution we want to put that on the internet ok that's obviously raises much more significant concerns then what we're talking about here is the risk that inversion you know someone will say something that will shed light on their identity first of all the the risk that that's going to that the harm is going to materialize is obviously much less than that got much reduced in that context the posting the information on the internet and the public's interest in getting access to the sound is so much greater then their interest in just knowing who these people are right so i guess i can do you say that the balance gets struck in in our context in your favor yes well there's kind of a lot in there i think i would begin by pointing out reminding the court once again that some sound is available almost no sound occurs without some visual cue as well so people who are watching have all of these benefits with closer fit could you just distort the voices could distort the sound in some way but i suspect the other side would be here with a lawsuit saying well now you're distorting our ability to hear every grunt and groan from the inmate as well so we're trying our best to do a close fit on this point which is why on and it seems to me in this context the public's interest in getting access to the sound is so much greater than the kind of speculative concern you have about well in the course of an emergency somebody might blurt out the person's name or say something else that would disclose their identity so i'm not so sure that that's right because of the amount of information that's already available and the ability of news media including plaintiffs to comment on what death is like when  this is information that already exists they already know the drugs that we're going to use in part because we settled with them the choice of what the drugs are going to be about this sounds yes i understand that but i'm still part of my responses when you know the rest of this context you know whether death is induced by these drugs is painful or not painful and even if you're there observing and you see someone sort of visually letting out a shot i mean it's the marginal benefit from what they're seeking to discover is extremely low the same thing actually goes for the other areas of discovery i mean they say qualifications if you look at the the prayer for relief in case there was any doubt that this is just a discovery demand propounded under the first amendment eighth amendment claim like for example nurses are no good at placing i v lines if you allow nurses or mts or whatever qualification it is to place my i v there's a chance that alex or whatever the standard is a certain are substantially likely that all experience undue pain let the individual condemned bring that claim to the protocol and say you shouldn't be allowing e m t as part of your protocol then they can have discovery on that maybe they can get a decision in which the state strikes the mts the same thing is true for the drugs if the claim is that you're going to bring in drugs from overseas and we don't trust drugs that were made overseas even though by the way they're subject to testing by the department of public that which is the highway patrol  absolutely no reason i mean under if paul and probably mean anything it can't be the case that they can show up and say well we think you're going to smuggle in illegal drugs and use them even though they're of poor quality the other thing about the importation point is that that's happened it's not like they're making up the possibility at this could happen it's happened well that so it's true that some of our drugs were seized in the past and the lawsuit you know concluded that that was inappropriate that was not established at the time by the way  nothing about this protocol the time at the time of the cook decision which i think is what my friend on the other side refers to when he talks about their successful litigation at the time that was acceptable in the f d a and d a were on board with arizona's importation procedure we are a license we just went through the process of renewing it a license to da importer which means that you comply with all kinds of other regulations so the information that's available is abundant the other thing i'll point out and this is a point that the  district court made in the guardian news case is that the ability to comment on what the state is not telling you is also sufficient to conduct the other side's advocacy so you can say the state won't commit not to buy its drugs overseas or the state won't commit that there will be no mts on their on their execution teams all of that is available to the other side to make their argument to hear them presented here today it sounds like this entire discussion the press enterprise two steps history and tradition and a significant positive role for the function at issue plus the second hurdle roman to of woodford about the turner standard and the extreme hands off deference due to the state that it all collapses into part t of press enterprise and it's just a policy discussion but we know from days the supreme court has said that courts do not sit as panels designed to pick out best practices which is their term and although there may be things that the other side wishes were done differently they do not defend a constitutional right there's not a time i was curious about how that deals with some of these questions what is that they're both yes and then i also commented on his attention the supplemental excerpts with the current protocol which i think we mentioned that i know  louis louis versus casey explains how you do not have a right to discover claims work my government is fighting about it because it seems to me that it's basically the same as the due process claim i would be very content with a ruling to that effect you thank you your honor just a few points on rebuttal first to pick up on that last question the due process claims were about arizona's discretion to change their execution protocols at any time it was not about the right to the information that the condemned prisoner pla has articulated that concept in the history and logic balancing many times it requires evidence it requires facts on the record to substantiate the state's speculation that there will be any negative consequences from the access we are seeking this case is at the pleading stage we have plausibly alleged that the first amendment attaches but that's not the end of the story obviously the next step is to go to discovery to obtain documents from the state to have them substantiate their fears about the i v team being identified about manufacturers actually not providing drugs to them about sounds being any sort of a difficult burden for them to provide as you mentioned it's  up execution the mike already exists the state affirmatively turns it off that it's not a difficult thing for them to comply with but it that's not something that will be resolved today because it has to be resolved with facts on the  merits and has to be balanced and so to touch briefly on my colleagues point about glossop the observation in glossop about difficulties that states had in obtaining drugs was made in the context of an eighth amendment claim under which the court ruled it could not hold a method unconstitutional if a state has no other viable alternative that does not impact the scope of the first amendments right to observe executions and one under underlying theme of my colleagues argument was that all of this is some form  advocacy against the death penalty but it is not this is about informing public debate the public has the right to support capital punishment or to oppose it but to do either of those things it needs sufficient information about it and your questions about the drug manufacturers and my colleague's point that the plaintiffs somehow know everything there is to know about the drug manufacturers is untrue as we've seen in the last several months there have been a spate of lawsuits around the country in nevada  and brassica and arkansas by drug manufacturers who did not know that their own drugs were being used by states in executions and who allege that states obtained those drugs through deceptive practices and through violating agreements with the state or with the  regarding the details of the provenance of the drugs the manufacturer maybe but the rest of it seems fairly attenuated given the case law we buy into look for it itself recklessly and we have a problem which is reversed i see my time is up but i can answer your question briefly i don't think it's attenuated under the case law again because this is purely at the pleading stage and if they prove on discovery that it would be executions and you darkly in the last twenty years yes your honor we have known and we detail it in our complaint at the excerpt the record cites that i laid out my first argument that the public has known where each of these drugs have come from in the past and it hasn't hindered arizona's drugs they immediately switched to another drug the next day it was before this court in the i believe the dickens litigation they immediately switched to pentobarbital it did not even hinder their execution process for a day ok thank you