valid government purpose but there is no real discussion of whether there's a plausible fear if you look at the facts in this case for example with mr barry's desire to be able to respond to his client's social service clients in their inquiries or comments regarding religion he is extremely sensitive obviously from the facts that he is not to express he would have gotten any complaints or not because they didn't let it go to that point so when he says there were no complaints i mean essentially they told him we don't want you talking to clients about religion in fact they there was a complaint when there really  that's one of the factual arguments back and forth between the parties whether that was a complaint or an inquiry but if you look at the actual facts without characterizing it it certainly was an individual a cohen ploy who came to one of the supervisors and reported that she had observed mr berry reading from the bible with one of the clients and said made a statement i thought that was against the rules when asked when the supervisor w did the individual appear or state she was upset you know indicate that she was in disagreement with what he was doing no in fact she didn't want him to get in trouble she was just making this statement  what wouldn't be to run well in this case all he was seeking was the right to respond well and he is not indicating that he should be able to initiate this or their grounds that's not even what he's seeking ok p just so that i have the facts correctly all right he did he well he only asked to be able to respond but he doesn't he say that part of his being an evangelical christian part of that is that you are supposed to proselytize and talk to people about your religion you know what he i mean that's part of what his religious were what his response as to why he wanted to do this was that he was called upon to study make himself approved so he could give an answer he goes to inquire about well that we have we've got they told him he couldn't have a spiral out on that on the desk when he had clients in the office right and they told him that he had to take down the jesus off the happy birthday jesus with clients in the office and it appears that it's undisputed that he did do interviews in his office correct now is it also undisputed that she could have his bible out and then also there was the issue about there's a meeting room or what if there's some room there private he wanted to be able to have bible studies there are groups prayed together and in that room and they told him no and they said because if we let you do that then that means we would have to open it up to i when think want to say anyone that you say well that and they would have to allow anyone that they would not be able to discriminate on  that now if he wanted to play with other people in his office on during the noon hour or whatever as long as he wasn't you know harassing other people you know pulling him in the hallway and saying come in and play with me what would he could he do that presumably he could go getting to that his cubicle as as the court pointed out displays were permitted in the cubicle and the evidence and questions that even interviewing people so what i'm just pointing out is there seems to be a discrimination content they what exactly just the record show that other people had that they had  is in there how a leading displays they had inspirational sayings things of that nature and certainly according to the questioning of the supervisor  my understanding of the position is that mr barry interviews people who are trying to get off welfare and are applying for assistance in that process he transitions them yes and so when people come in they're believing that it's the employer's position that they're saying well people could feel that their benefits would be conditioned on you know what was going to him or somehow professing you know jesus christ as their savior or something to that extent and also that the employer could be sued say if he denied someone benefits saying well the the reason that you know that i was denied benefits is that i i didn't want to talk to him about religion and our position is that it's purely speculative a no different than for example the female muslim employee with a distinctive headdress interviewing in her cubicle with that make the individual reasonably feel they had to pander to islam or a sikh with his distinctive racial hair would that make them think could you prohibit that but what that necessarily make the really reasonable client i mean i assume we can all imagine somebody who's going to feel compelled them out of what sticker they see on a giant sticker they're going to have to be a giant fan but the reasonable client certainly i don't think can be said to feel well ok what this what this be a factor at all in considering in terms of the tailoring in terms that obviously if you have to have a beard or if you have to wear certain clothes you can't whip in and out of those when you're interviewing people and what they were telling him is that you know we want the bible and in an awful open when you want to use it  i and i'm assuming that that the if it's not in a parent's factor of parents you can alter ok but when the courts that you have to i'm not quite in tune with that because i have t comes from within in other words they feel a religious obligation to distinctively identify themselves some people may do that if they're on the christian faith with a cross with then a woman sitting in their interviewing clients with a cross makes them feel compelled mister very did it by having a bible on his desk when he was questioned would not identify you as a christian he says yes exactly i mean now is that different then would you put that displaying religious objects in a different category than prohibiting him from discussing religion with clients i think the displaying is even more benign of course because if he actively discussing a person feels more obligated to listen and perhaps respond every day in our everyday life in and out of it as was pointed out in an out of court see that you see displays of the ten commandments or other things you're used to seeing displays of this religion or they're out and i don't think it makes reasonable people feel compelled to say gee i won't get my benefit he won't give me good advice on how to if it's not a problem for them to get into content discrimination you're opening it to the employees for normal business related items the only thing they wanted to do in their didn't even want to hold meetings for anybody they wanted to pray together to those who voluntarily wanted to come in so i don't think it's any different than opening it up for other employees and the county wants to characterize these other activities as morale building  i don't see why those that are mutually interested in praying for each other and their work and their clients isn't also morale building morning your honor my name is jay scott smith i'm here representing the interest of the county of tame in this matter i think that and in part we can see from argument that more clearly we can see it in the briefing this case represents a number of fairly important principles but i think one of the most important principles is that government agencies such as the county of taman need to have a fair amount of discretion in controlling the speech activities of those employees it hires to communicate with the general public on its behalf as mr barry has done in this instance mr barry argument claims at one point well i only want gaijin speech in if it's initiated religious related speeches initiated with by my clients and somehow that makes that less offensive but if we look at this if we look at the argus that were made in the brief what it's very interesting it's at one point in the grief there is that they even highlight and i believe it's a page fifteen in their brief that he wants the very advocates responding to client initiated speech with speech about the holistic and spiritual value concerning the client social issues notice in that sense that there's no mention that the client initiated speech has anything to do with religion may have to do with social issues that's made clear later on in the brief when they make the argument that mr berry ought to be allowed to respond to a client to say says i'm having trouble getting a job because i'm suffering from alcoholism mr barry thinks that's an appropriate response to that would be to discuss again the use of the phrase the whole list pick spiritual component of a client's life when it comes to the social or well being in essence that's suggesting that mr barry thinks that he has a first amendment right to engage when he's in faith based counseling on county time now there may be a lot of merit to the faith to providing faith based counseling but there are private social service organizations that do that government agency one cannot do it camp the california regulations that govern these employees specifically state that employees aren't or that in communications with clients and not to promote religious beliefs and even if a client comes and says i'm a religious person would you i'd like to discuss religion with you in the context of the services that you're providing by responding in a religious matter mr barry is necessarily at that point promoting his religious beliefs that they may coincide forget the page number but it's it would be exhibit d and tab six are was a directive that he refrain from engaging in religious communications or offering to pray or actually praying with clients while discharging his responsibilities that's an undisputed fact that there is a subsequent memorandum that sort of was in response to his pushing the on below if you will with controlling his non verbal communication clients in terms of with respect to the religious artifacts that were posted what about what about people that would have to wear certain drafts or certain beer or something along those lines how do you compare th can't exclude all information and i and for that reason i would even suggest that mr barry were wearing a cross on annapolis there's nothing in that county's directive because it's specifically applies to posting materials that would that that he would be in violation of that directive with the wind when somebody comes in and is dressed in a certain way yes there is going to be some level of identity that that person has identified themselves as a religious person but from a from an establishment clause avoidance standpoint the critical element is promotion of religion not just necessarily identifying one with one's religious beliefs so in terms of the comparison we're drawing as as to the items that are posed once you start posting items on county property and asking the county to allow him to do that a person sitting there is going to say counting exercise of some control over these cubicles or offices i am forced compelled as part of my welfare obligations to sit here and this person is now communicating direct  let religious messages to me and i can't and i have to sit there that is in essence a he is promoting in his capacity as a county official religious message and promoting his religion to those who come to sit there so there's there's a distinction between what i would consider sort of the intrinsic i'm just going to view this this person you know based upon their their outward appearance and actual nonverbal communicative messages that are placed in the cubicle and this again also of comes back to my original point that there has to be a significant amount of leeway offered to government to government agencies in trying to deal with these very complicated and very difficult problems we can't mess with you know even if one says well happy birthday jesus sign it wouldn't necessarily violate the establishment clause it certainly starts heading in that direction and a government agency has to have a fair degree of discretion in dealing with those situations and i would commend to the court and have the second circuit approach in the in the night case and i'll never pronounce it correctly there  you i think it is in the second circuit first notes that when we apply a pickering balancing under these circumstances and that when you're dealing with employees who have to have regular interaction with the general public that the that the government's interest in regulating that interaction to avoid intruding from the religious sensibilities of the clients is  frankly a misreading of the smith opinion and his progeny smith applause smith first of all it was a case that limited application of the strict scrutiny analysis to those circumstances where you only have a nonet neutral regulation of private conduct spring court as long recognized that a different standard applies when you're dealing with the regulation of employees the speech and there is not a single case of stance or the proposition that you'd apply strict scrutiny under the circumstances the circumstances posting of information the walls or if it's just lack of government speech person is acting on behalf of the government and speaking on behalf of the government government gets to even make viewpoint based discrimination are decisions and that  that frankly governs the actual interaction with clients on county time if the county wants to provide eight entirely religiously sterile neutral advice to clients you can direct its employees to do so to the communicative the speech communication between mr barry his clients while in county time so it really doesn't matter the county could give him a script and he has to follow it but in terms of the when we look at when we're looking at the balance the risk can be to some extent conjectural and again the second circuits which are the only cases that really deal with these issues in the context of employees with regular contacts with the public  noted that the county does not have to wait around for the first person to file a formal complaint there are certain behaviors certain conduct that is inherently religious and that the county has a right to delineate borders that the that the that its employees simply cannot cross in their dealings with the public and it even sleeve the court in the marquee decision at which you even went so far as to say that it is it is often impossible for a government agency to delineate specific borders that would amount to what with precisely amounts to a establishment clause violation therefore you can't do it versus what you cannot so we have to give broad orders in that case the teacher was given a broad order you just simply don't talk about religion with parents of the students you don't talk about religion in your classroom period they didn't matter in that case that nobody had complained but the still make he still speaking on behalf of the county and a member in that decision in that decision the market decision even though you were dealing with the teacher it wasn't just the communications with the students where the teacher would hold some special relationship  you just can't a county government agency can say we're not going to let you when you're speaking on our time and our money and with the employment sure of government approval and any speech that mr berry makes when he is and when he is having communications with clients is going to have the imprimatur of the government because he is he is providing benefits he is providing challenge celing services and anything in the record that mr ferrie could interview nothing in the record that differing and differentiates between cubicles used by people who are not interviewing clients and those that are that are actually interviewing clients and again the county's limitations here are what is what is going to be visible or what kind of compelled if you will receive the nonverbal communication that and that is being brought to the car that's posed by posting these religious artifacts other that's a you don't have to do that in dealer ad if you had actually opening up a particular farm for a particular type of expressive activity baseball field is commercial speech and the court said even a person even if the district or any person wants to put up a relatively innocuous religious statement that's not the same type of speech is this here commercial ads we're not going to require you to open it up and then the important part is this is where the rosenberger decision and lands chapel are important because they tell the county what it would have to do if it did allow mr various groups which is a organized meeting he sent out flyers he organized this meeting an organized prayer group and then they would in fact have to ability to or they have to dispute the growing influence of religion in the workplace and that's not what his response would be well weren't there's no showing the this is going to be a huge problem in that the room is going to be taken up all the time  i'm on your response team what you have to show to prevail on that particular issue would be what all we have to demonstrate is that this room was not a public form because he's not being prohibited from engaging in that speech he's just being prevented from gauging and that speech in the red lights conference room so if the county did not intentionally open up that room for the type of expressive activities that the pla his group wish to engage upon they don't have to open it up to anybody and i dare say if it's in the near having the occasional birthday party or shower constitutes opening it up then the response  not indicate that it was a right those are those that oppose it warm right those are those are significantly different types of a different activities then are implicated by somebody who organizes a religious group to conduct prayer and to discuss religious topics as opposed to just simply having a unit wide management created if you work out that work and directive as if he can't make and he can he can read his bible outside the presence of the clients he can engage in religious speech virtually anywhere in the workplace including in his cubicle just not with clients he can pray at lunch they can pray together wherever they are allowed to you know have lunch and breaks so long i didn't read last time just not in the rebel process and when it is not opening up a specific conference room for this behavior that's all if there are in response i just want to point out that the county seems to concede for example that they can't or shouldn't be able to prohibit the sikh from wearing their their beard or the muslim woman from wearing her shawl as a identifying them but what it will eat also concedes that a christian could wear a cross my confusion is what's the difference between that bible sitting on the table and the cross around his or her neck and soon as i'm a follower of the christian faith i don't think there is any difference and i fail to see any distinction there and w well the happy birthday jesus was a one time advantage for one specific occasion and that is christmas if they were to simply say the band wasn't that you simply can't have happy birthday jesus  can't do anything over a religious nature of say anything show anything at any time in any place in the presence of a client so that includes the bible on the desk which he would like to have even if he can't have happy birthday jesus on the wall that's the one thing and when when counsel says that government agencies should have a fair amount of discretion i guess i guess kind of devil's advocate what what mr smith is obviously saying is that that speaks to something it's a non verbal communication if you know obviously the bible is you know people drive comfort from that and being able to refer to it as far as that goes but if he had it in his office that he has it there when he can be there privately why isn't that a comfort that he's seeking as and why it is and as mr smith would say putting it right there on the desk where the client would be sitting why isn't that saying more because it does speak it says it makes one comment i'm following the christian faith but it doesn't speak any more any more broadly or any more strongly than the individual with the cross around their neck or again the sikh or the muslim or any other of a number of identifying characteristics that the individual follows in particular believe that's the limit of what it says we don't think that goes too far are contradicting the message of the of the employer the government agency is not a situation where there is selective financing in the doctor's counseling regarding abortion and or if there is a faith program any policy of diversity the individual wants to put up religious commandments against homosexuality this is not any of those things even granted that they have some amount of discretion factually here where's the problem  people feel really strongly about their religions i think that that's an imprint that can be made and if you're sitting in front of someone that's a decision maker that you know people feel that their religion is right and if you're not that religion they would feel that you know am i going to get you know is that going to impact whether i get these benefits i think that's what they're saying some people feel very passionately about the environment and they bomb places because you're cutting down the tree some people feel very passionately about peta some people feel passionately about a lot of things i just don't think it's reasonable that because somebody has a sticker indicating that you know she should see the frogs or whatever that means you're go have to comply with that in order to get benefits and it just hasn't happened here not only hasn't it happened but i don't think it's reasonable to assume it's going to happen especially not in view of his  his knowledge of his bonds and what he's done in the past every time he's tried to do something has a record you show he has starred out advice whether it was ok before he even put that bible on his table he called the the see if it was ok to get the ruling on the law before he used the red block for him he approached his supervisor who did indicate to him that it would be ok so long it was because it was not specifically asked for and reserved if you just went in there used it when it was empty so according to the record he was always sensitive to those things i don't think there's any reasonable inference that he's going to be conducting himself or saying things in a manner that the client that he's interviewing thinks boy if i don't if i'm not a christian if i don't tell him our christ is great i'm probably not going to get any good advice here or more benefit