your honor's there are two issues that i'm going to address this morning although obviously our brief was more substantive than now but i think that these are these two issues are at the heart of this case first the reasonableness of the restrictions  pretext that we believe the criteria in fact we're going to address some facts as well as the wall and there's a lot of interplay with the legal issues in this case   just a couple facts the criteria themselves in twenty fourteen were imposed due to viewpoint discrimination and i want to be clear we are looking at the facts in in a manner that takes the facts including a lot of e mails and draws inferences in favor of our clients because that's the procedural posture that we're in i don't see in that just correct or what you point you told the district court was being discriminated against your honor i think there were there were which what what was the viewpoint that you told judgment it was it was against the political party it was the viewpoint of the where  against libertarian just yes your honor and where where did you say that argue that to judge tate because really not i'm having a hard time finding it was it was seems like i mean you're complaining about being excluded in that it's almost like you're assuming there was a viewpoint discrimination but i'm kind of struggling to see what the point is actually discriminated against here we're are as you're aware in this court's case well certainly supports this a plus and i guess i'm and we argued the law on that motion as well and what what the position was we took was look you know we are libertarians and our kids were excluded because they were libertarians that is a viewpoint discrimination claim and i think the u s supreme court just alluded to it last month when it discussed the minnesota voters case and it talked about the fact that what they didn't have an i case claims if you point discrimination there was nothing that would suggest that anybody would be discriminated because of their was targeted due to his political party affiliation and that's been throughout the briefing if the political party in point are identical i believe that that's correct your honor and in fact if you look at the kerry case for instance that came out of this court we know that a political party affiliation is nothing more than a combination of viewpoints a particular platform that the party espouses this courts recognize that macquarie case u s supreme court alluded to it last month in the minnesota voters case in we believe that they are one in the same if you're targeting somebody because of their political party affiliation that is the viewpoint i didn't get there how do you get that they're targeting him because he's a libertarian absolutely your honor and let's let's talk about some of the record evidence that suggests that that is in fact the case one of which well i would start with the may twenty fourth e mail from broward to hopkins on the record  d that's specifically at exhibit eighty eight it's page i v twenty eight twenty one to twenty twenty two where this e mail goes out and he says in imposing these criteria that they want to get on immediately following the primary because on record today since his role in the eliminate the write in in the other candidate from the form it was agreed by the group yesterday that we should do that tim and julie both responded with minor corrections and expressed no problems with the overall idea the rest of the group was aware  clark who was the other candidate she said hey that could be mr patterson remarks perry or both and she was aware of both then we get the june fifth two zero event that's excluding a whole bunch of people or multiple people not all of whom are libertarian so why does that tell us that libertarians are being targeted on i don't think that that was the only viewpoint discrimination that was going on mr patterson a view for it's of everybody who didn't have you know ten or fifteen percent i mean that's kind of what it seems to be edging towards i don't think that's right i think that there were particular viewpoints that were excluded i think this all started with an attempt to ban out of borscht out of state abortion candidates in that previously come up and i think that it continued to mor into excluding anybody that they that they were of the view of expressed eccentric views nonstandard views anything outside of mainstream orthodoxy and it's not the government's place to be to be doing that but i want to i want to continue with the record because i think it's i think it's important paterson lip and more expert in the october thirteenth program and there's some additional follow up in mr goodman response by an e mail and he says well it even if they meet the criteria we're going to make sure that we don't put them on that same where what i find that exhibit one sixteen and that's a page id twenty eight sixty five and his testimony about it was at page i v twenty five eighty in the record then we get to this polling criteria that continues to be tweaked and what we see is that they go out and they research where patterson is in the poll their lawyer says hey you know five to ten percent ok and they said ten and when we asked them why they gave us no answer at all none of the defendants did and that's also on the record finally your honor to our points that would make about this after sort of the brouhaha emerged the board member responds and says wish there was no libertarian candidate i think that is evidence of political party targeting and in that evidence is that exhibit one sixty four page eighty twenty nine eighty two and the rest just as i don't believe that the libertarian candidate meets your minimum criteria  honor that was the response by the executive director of the board member of though that oversees that executive director says wish there were no libertarian and goodmans response that was think you could mean a lot of things that could mean that we think you know it hasn't been  libertarians in particular we're on to this to be my response if we look at the evidence and and we can draw several conclusions from it at this stage of the proceedings in the summary judgment posture of this case those inferences ha mr goodman has this e mail exchange with his friend al cross and you see this in the record at it's a record id eighty two dash to page eighty thirty eight eighty seven to thirty eight eighty nine and what we see is this question that he asks should i take the fifth he he said prior advice or counsel but he's allowed it and not allowed to do any reasonable inference to draw as they know that they probably violated the law in the first amendment issues and he's concerned about it that there was no gauge in political party targeting now i do want to talk briefly and i'm running out of time but i want to point out the pretext notion of this case and when i stand back up i want to address the criterion themselves work versus poll it was a twenty twelve case out of this court and it involved religious views and pretexts of of terminations we cited in our brief and there's a lot of parallels to draw with the work case it was an after the fact justification in that case in this there was a non published policy that was claimed as the basis for the action again there was no publication of this these criteria to anyone that was true or that's true here in forbes two because there were no criteria well that's true and the beauty of forbes runner is that there was a jury that the matter of pretext in viewpoint discrimination went to the jury and the case and the jury determined that it didn't happen we don't have that here that's not the posture here but the absence of a written criteria published criteria would seem to be irrelevant given orders i don't know that that's true forbes indicates not very important well your honor forbes indicates that you can't have viewpoint discrimination there's a jury finding that it didn't occur in that case i don't have that know about yet well you almost impossible to find a more on point precedent for this case than the forbes case in the forbes cases here a public television station excluded a candidate with a lack of demonstrated support from a nonpublic candidate form the candidate here david paterson over the course of a year long campaign raised zero dollars in fundraising in never polled higher than seven percent and that is why he was excluded it was his status is a demonstrably unsupported or marginally supported candidate but led to his not being invited to the october thirteenth two thousand and fourteen edition of the kentucky tonight program and simple words his exclusion was reasonable in viewpoint neutral interesting only as was just briefly discussed forbes actually was a six three case the six justices who failed in favor of the public that television station said that ad hoc reasons as long as it was based on a lack of public support were ok for excluding a candidate like mr patterson from a forum like this the dissent also agreed it is ok is constitutionally permissible to exclude a candidate in mr patterson status from a forum like this but the dissents problem was that there were no pre established criteria the dissent informed said there need to be pre established criteria for such an exclusion to be constitutional here take iti used pre established cried hero they were ever  evolving they did change over time that is correct your honor but if this case were sent to the supreme court if this back pattern were sent up to the supreme court instead of the one in poems this would have been a nine zero fo would have been a nine zero decision in favor of the public broadcaster make new rules every time you take a look at the pool of candidates and you say well who do we want to hear from  we don't like what they have to say and then you write your criteria that result well that's not what happened here and that's not what happened in forbes what happened here was exactly what happened in forbes the editors kentucky educational television determined that it would be in the best interest of their viewers during this forum which is a limited time this is a one hour forum to limit the participation of this forum to those emails if they are taken in context in read as a whole as opposed to half sentences cherry picked out showed that k d t was doing exactly what it was allowed to do it was going through the process of determining instituting in applying viewpoint neutral criteria to set the stage for this program him to do nothing other than exclude the candidates who status did not justify them getting a significant portion of time on this limited time program in all of the e mails that were cited today if they argued in their whole in no way shape or form support the conclusion the under reasonable inference that the libertarians are drawn from them i'll take one for an example i mean you know flush one out absolutely we're talking about the june fifth twenty fourteen e mail that they cited this was an e mail that what happened here here's the background of this situation tim bishop off one of the defendants is the marketing director katie in he received an e mail from a reporter in w h o yes television in louisville kentucky asking him actually he received a phone call asking him hey by david paterson  invited to the program because because on june fifth secretary of state alison lundergan grimes had accepted the invitation in tim bishops the marketing manager sent an email to mike brown and bill goodman who are the three editors who actually came up with the criteria in said please confirm we did not and will not invite david paterson and ed mark sperry to the october thirteenth program because they did not meet our pre criteria also could you email me the document that's in our five tim that he repeated the reporter's question to mr brauer mr barron says that's correct tim they did not meet our criteria for invited candidates for the u s senate race attached with the with the attachment mr bush often sit the criteria in a subsequent email to the reporter confirming that these candidates two candidates not just a libertarian also an independent mr mark sperry had not been invited to this form because they did not meet the criteria this was an application of the criteria the fact that mr patterson is a libertarian in was excluded because his status was that he did not meet the criteria is not evidence in any way shape or form of any kind of animus or dislike of a libertarian viewpoint there is nothing in the record as to what the libertarian viewpoint is there is nothing in the record that the three individuals who came up with and applied the criteria had any distain or dislike of the libertarian viewpoint but if party affiliation and you point are essentially equal the same thing not equal the same thing why does that matter that there's no evidence in the record with regard to actual only because under forbes there has to be some proof that the motivating factor in the exclusion was based upon the candidates viewpoint not their service is that there's no evidence in the record that the exclusion was because it was a libertarian that's correct there is absolutely no evidence of that in the record that his exclusion was for any reason other than his status as an unsupported candidate if you had a situation where you had two major candidates and it turned out one of them was really unpopular the polls showed that the candidate only nine percent of you you win told the debate or you would have a debate with one or you would just say no these are the two major party candidates will have the debate that person who didn't meet the criteria would not have been invited onto the program that's correct and so there would not have been a program if there was only one candidate who met the criteria you wouldn't have a two person show that is correct because you had to meet these criteria to obtain an invitation to kentucky tonight and then what if you had like a three way contest or what if you had a cunt as it was the general ok let's say there were a whole bunch of other party and everybody had just across the board everybody had twenty percent they'd all be on it they would yes if they met the criteria because what the criteria do is this is again valuable time and it is limited in nature and in order to get on the stage and be given a chunk of that air time you have to demonstrate there has to be a demonstrated level of support to warrant that so if you had five candidates polling at twenty percent it would be in the viewer's interests to hear from all five candidates and have them on the stage but if you make the cutoff so early or do i misunderstand you made the decision like right after filing that that the but he wasn't eligible that is that is not correct your honor what happened was this criteria were put in place before the primary elections the primary elections took place k t then tightened the criteria the day after the primary for the general election in the final decision as to who would be invited or not was made on the deadline which are right at the deadline of august the fifteenth of twenty fourteen that was the deadline for a candidate to meet the criteria whoever didn't meet the criteria could do it on the fourteenth signatures to get on the ballot in november of two thousand and thirteen in tried to start raising money in december of two thousand and thirteen and if somebody was self funded with that if they had raised one hundred thousand dollars reported to the c that would be what qualified under that criteria and again these criteria are imminently reasonable we're talking about a race where over forty million dollars was raised well katie required was mr patterson or any other candidate regardless of party regardless of viewpoint all they needed to do to get invited to this program was one hundred thousand dollars reported to the c and have polled it ten percent or more in any independent poll and they had to be but this is important they had to be a legally qualified candidate that may go without saying but mr patterson wasn't even a legally qualified candidate who was on the ballot until august eleventh of two thousand and fifteen scuse me twenty fourteen because of lack of public support but he was prior to the august fifteenth cut he was yes he was on about the arts he would have been that is correct he was on the ballot in here website that stated three issues those are the two other criteria he undoubtedly met those two criteria the criteria he didn't meet were the fund raising criteria and the polling criteria which were imminently reasonable criteria is there any evidence in the record i mean i realize the emails might be viewed this way i don't know if they are not but is there any evidence in the record from which  not there is no evidence of that fact when we're talking about this email from donna moore campbell who is one of the board members the timing does matter that e mail came about on august sixteenth two thousand and fourteen after the field was set there is absolutely no evidence nor could there be that miss campbell or any other board member had any kind of conversation or any kind of influence on the three independent editors who actually set in applied the criteria the one who said i wish there were no libertarian because she did but the timing is important on that as well because on that date the libertarians what that was the day after the deadline was set that was the date after the deadline that was the date after the field was set senator mcconnell had accepted the invitation secretary grimes had accepted the invitation and what miss campbell was doing was sending a congratulations email that we had a program with candidates on there the libertarians were complaining at that point that they were not invited they had gone to the press with that it was well known that they had not been invited miss campbell said i wish there were no libertarian to which the executive director of katie shea hopkins responded the reason he was not heed there will not be a libertarian in the reason there will not be is because he did not meet the criteria it was again his status it had absolutely nothing to do with viewpoint and there is absolutely no nexus between miss campbell and the editors who actually made the decision and applied the criteria whatsoever she had no includes no impact whatsoever and there is no evidence nor could there be to that effect again the criteria fall squarely in line with what was permitted in forbes as far as one hundred thousand dollar criteria i know that my opponent is going to attach an address reasonableness here i say i'm short on time but the hundred thousand dollar claim interesting lee the claim that was pleaded was that one hundred thousand dollars isn't reasonable because it discriminates against candidates who conceivably don't believe in significant fundraising the district court dismissed that claim for lack of standing because the record was undeniably clear that the libertarians do believe in fund raising and unlimited fundraising they had no standing to take the position that they were being discriminated against in on appeal the libertarians do not challenge the actual grounds for the dismissal of their challenge of the hundred thousand criteria but even if they did what is important here too was there would be no standing not finish my sentence right here there would be no standing even if the claim is the one hundred thousand dollar bar should have been lower the fact is mr patterson didn't raise a single dollar so even if and i disagree i think hundred thousand dollars is imminently reasonable but even if it was lower he would have had the money to challenge that for those reasons and all the reasons stated in our brief i respectfully ask this court  the district court in every respect thank you testified she knows what she knows and she can know where the polling is they were aware and the inference is they design these criteria to make sure he didn't make the ballot i would point the court to the record page id we have to sequester the public television executives before they can design criteria ron robinson a they no of course say no of course saying they're generally aware i mean that doesn't tell us anything it does when you continue to alter the criteria again and again and again which i marry general  well ok primary by it's nature you might look at the republican primary you know for the presidency and seventeen up there generals different to and you're not splitting it among seventeen and maybe you should have a higher  we're not going to micromanage oh you can change it after may fifteenth or something forbes journalistic discretion reasonable why why isn't that why doesn't that apply to timing as well as content because it goes your honor to the issue of in particular viewpoint discrimination the u s evidence of targeting there's evidence of targeting at thirty five fourteen and fifteen that in fact they knew where he was before they did it but more to the point and i do want to distinguish words because i think it's important to do that forbes talked about the notion that in that case the take the kid had ran a campaign that he described as bedlam there was no support whatsoever paterson goes out and i realized you know there's all this talk about understand that the fund raising that was done here including the fundraising to put him on the ballot and there was i think twenty to twenty five thousand dollars that was spent to do that was done through the libertarian party itself would they have done it through the paterson campaign if they were aware that there is this fund raising criteria sure but they've already got an f e c filing i d in everything else the party does versus the candidate the party has a sophistication to raise the money versus the candidate campaign and so that's how about was handled and that's why her dates to raise money and i guess that's one criterion they're looking at i mean your client raid zero dollars that's he did any kind of raise most candidates that have any prospect of success do raise your honor there was a congressman dime he wouldn't take it and yet he continued to be reelected so i don't think fund raising and i don't think the u s supreme court would say that fund raising or raising money is the equivalence of of support so to say criteria would be fine as long as there wherever your candidate is your honor i don't think so i do want to address the reason one of the criteria first of all it's our position that any fund raising criteria isn't reasonable it's a it's a wealth based criteria under lumen vs in each these are ballot access cases they are but i mean have nothing to do with journalistic discretion as forbes describes it your honor i would go back to the cornelius case where the supreme court talks about you've got  six identical to the state interests in four where the court said the broadcast executives have significant journalistic discretion like it or not i mean that is the law as it comes to us it's not the ballot access stuff that gives them a lot of leeway on these criteria when you are forces to to know criteria and forbes forbes says it's got to be reasonable and they looked at the totality of a number of factors that the supreme court looked at in forbes and determined that it wasn't reasonable it for instance forbes described his campaign organization as insults that's not the case mr patterson i mean polling seven percent of kind of a big deal paterson ran a legitimate campaign paterson attained by thousand signatures got himself on the ballot was getting national press because of this race it's not for us it's just not for works and so i think this is the notion of the reason why this has to be viewed in light of that i would also say that that would have been i think your honor i think you could look at five percent say that it's fine and i think that's why the attorney gave me advice said it five to ten because that's what he's used to ten with ten he said five to ten and yet they picked ten why they picked him to say look at where he was polling and they want to make sure he was in it and so i think i mean you know you're just saying that but you're not saying that the evidence in the record supports that well i know you think so we have the testimony question before us well and the testimony that i go back to again i point to court the page i did thirty five fourteen and thirty five fifteen the deposition deaver clarke where she testifies to that and she did she knew what she knew and they knew that when they said the criteria and they went back in and they did research what she testified that yes we looked and saw where he was and so said of the ten that they looked they of exist at the same time i guess and you're saying there must be this relationship and maybe there isn't i mean they you know i mean they secretariat in these things around the country all the time and i'm sure these people are pretty aware of how various candidates are doing probably interested in this stuff if they're in this line of work doesn't mean they're all discriminating your honor i think the real question is whether or not a reason one jury can draw an inference that in fact there was discrimination from the seven and i think the answer is yes look at the hundred  think they would have to conclude that it was discrimination against the viewpoint i mean it may very well be that from the start they only wanted the two major candidate is that unconstitutional big day it gets awful close to discriminating against all of our political views and affiliations in deciding government orthodoxy which is the heart of the viewpoint discrimination cases i think i don't know i think corpses it certainly makes sense to me i mean he's a we didn't we can you know why not let him participate but forbes says that they get to make those editorial says they get to do it if it's reasonable your honor is the one prong and they can't discriminate against viewpoint which is the second prong which is why they did part of the debate in four years was whether or not there is going to be a form analysis at all in the supreme court determined yes it's not a public forum so there's not this absolute blanket rubberstamp indiscretion forbes doesn't stand for that proposition through thank