fundamentally in two different ways initially the district court erred in concluding that the issue of retaliation was alien to this case in fact the motive for the initial suspension and subsequent revocation of the arizona board of regents collection of the essay student fees the motivation for doing that is material because as your authors are aware in fact the most important element in a first amendment retaliation claim is motive a retaliation case is all about motive the district court concluded citing the united states supreme court opinion in o'brien vs the united states that it could not look behind the motives of the arizona port of regions in suspending revoking and then substantially modifying the board's collection of the fee because motive is irrelevant but in fact the o'brien case is is not material to the  o'brien case was a case that involved criminal conduct mixed with expressive activity the o'brien case is a famous case it's the draft burning case and the united states government owns draft cards in the same way that the united states government owns its passports in other important forms of identification and the united states government has an interest in preserving those types of its property and prohibiting their destruction even if such destruction does have an element of political speech for example the united states government has declared that it's  raffle to deface its buildings because vandalism is a bad thing especially when it's the government's property and the mere fact that someone is also expressing their displeasure with the government  breaking a government window doesn't mean that that criminal conduct is otherwise immunised moreover but just as fundamentally the o'brien case is in a political in this case because the o'brien case involved a statute created by a co equal branch of the united states government specifically the united states congress in this case we clearly have it in ministry of act the arizona board of regents is substantively equivalent to a school district or a school board it's not a legislative body it's not equal branch of government and consequently its decisions are not subject to the deference that ordinarily is afforded to congressional lacks and lastly o'brian cases in a flic regents is in mean how would you and your complaint we would amend our complaint which we were not allowed to do below to right to to include the individual members of the board of regents its in their special capacity some of them perhaps in their individual capacities it's not a big deal the reason why we did sue the board of regents even though we're not fighting that here is because the board of regents unlike most governmental state agencies in the state of arizona in fact can s generous but lee helpful governing body and trying to do nice with the students right up to that that's correct here's and they did it for a number of years they did it for about fifteen years before all this happened did and before and for twenty four years before that they actually directly funded a state with their own might then they had to be more in frugal yeah well i'm sorry i'm sorry i'm sorry i think the real reason was they wanted a essayed to be more independent but let me give you an analogy it happens all the time the government decides to fund public housing the government doesn't have to do that that's something that is discretionary with the federal government they build a beautiful apartment complex for the poor but they didn't have to do that but when the poor turn around and vote republican in the next election after they get over their shock they decide that they're going to close the housing down even though the government didn't have to create the facility once it did it could not take away that benefit consistent with the first amendment and in fact this court is considered that very issue in a somewhat analogous case and that is the case a prince versus jacoby in that case a school district decided to give benefits to some student groups including letting them use the public announcement system letting them use their supplies free of charge letting them use free transportation and in that case which is for miller some members of the court or to all members of the court rather  the court acknowledged quote while certainly not required to grant student clubs access to these benefits the school has chosen to do so having done so it cannot deny access to some student groups because of their desire to exercise their first amendment rights without compelling government interest without a compelling government interest that is narrowly drawn to achieve that end that's a different kind of first amendment case the manner stand your point  let me ask you a more practical question so after all of this happened the legislature stepped in and said board of regents you can't do this unless you go back and you prevail and you go back down to the district court and i'm just saying assume this from oh i'm understand you knew you had in your official yes individual board members in their official capacity and you're under the  opportunity to challenge that legislative action because we believe that the history of that legislation will in fact reveal the identical maybe challenged morning in ten that predicated this act because in fact they were highly related some of the same characters were if that proves that then you're seeking injun prospect of injunctive relief to enjoy yes your honor and because it will be the university officials that will be the ones in force and that statute will actually really a prohibition on the board of regents collecting these we do arguably we don't believe we think that it's a good argument could be made that the statute is in a  in fact it is a placebo we believe that is predicated by the same retaliatory intent and consequently still subject to the identical so first amendment retaliation claim another interesting point going back to your original question judge by as what's the harm there are some really famous cases l ron her sperms it took me forever to find that case i knew it was out there somewhere it's the penny case where the court says that hey even if so if you give if you punish a republican one penny for being a republican or give a republican and it uses the republican partisan label if you give a republican one penny for being a republican that violates the first amendment so one penny is a substantial impairment under the constitution according to the united states supreme court in the routine case decided back in one nine hundred seventy six but part and then she can the expertise for this is that if the one or two dollars is collected as part of tuition everyone's going to pay it so it's going to be a lot more money than if you try to collect it once the people are enroll than and pay their tuition you're not necessarily going to get every student to pay even if you build them or even if you do you not you know lose money for that that's correct in fact there's a really good book about it by the legal scholar called nudge say that hey opting in making people opt out usually makes them right make the right decision in the first place so yes we will that do some expert testimony in that regard in addition to the naked reality that it doesn't seem like anyone is opting in however with the operation of the state statute that has become irrelevant so we do believe that the district court got it absolutely wrong by saying that discriminatory intent to retaliatory intent was irrelevant we do believe that it was a substantial benefit as a matter of fact the minute the benefit was taken away say went broke and has had no mon good morning me please the court my name is joseph kane field i am counsel for the arizona border regions the district court properly dismissed the associations first an amendment retaliation claim against the board because the board's decision to change the manner in which it collected whatever's desire and then immediately after that they say we're not going to collect any because your honor the quite simply the district court relied upon the cases that are directly on point t davenport these services the speech subsidy cases that have been handed down you argued that this was not a retaliation yes yes we did your good it was not retaliation yes we argued that it was a speech subsidy case controlled by the united states supreme court  and something else well then you know that you know that these retaliation claims were raised in the speech subsidy cases and they would have been rejected by the both the supreme court and some your sister circuits cases we cite the walk case for example of bailey case out of the six circuit so these k these issues were raised so when the government is collecting dues for a union or in this case the student association oh you know public money that houses have really is troubling about this case and that neither you or your clients are in the district court even understand why this is a retaliation case apparently is time fell under as of the jurisdiction of the board as any other student group so when this o c talks about these cases involving university speech and all that i think that that misses the mark because this at some point that association in opt out basis so what's happening is that if you want to become beef until the board changed its policy and openly state law prevents this from happening in the future every student that pays their tuition has to pay it's the same idea though it's the same the court the district court found at cigna sufficiently analogous i think it's directly on point i mean you read i don't know how you can read a source and not conclude that the arizona associate student association sits in the same position as the unions do in those cases whereby they are able to extract through the public employment payroll deduction system does from those that do not wish to join and we have five right but these are valuable as a contractor and then the government contractor goes out and supports another political entity or something and they get their contract terminated right and so on that i've been into the private party and everything and what distinguishes those cases from this is the fact that this that what the student association is being deprived of is not a valuable public benefit it's not public employment it's not a work as a result of a government contract it's not a tax exemption everything all of those involved public money that that is being withheld as a result of the government's disagreement with someone speech well i have to say we get a lot of interesting cases from arizona speech and thought associated with the university environment universities occupy a special needs in our constitutional tradition that makes all the difference in the world this is a retaliation case it was played that way in fact in our complaint we did mention that governor brewer was against proposition two o four three weeks after a s a supported proposition two o four the funding that it had enjoyed for over a