supreme court precedent citizens united a decision issued in two thousand and ten made clear that the supreme court considers discrimination on the basis of the identity of the speaker prohibited and following up on that in return of gilbert a two thousand and fifteen decision the that that you are in read the town of gilbert the supreme court reaffirmed what it said in citizens united which is that the that a statute that discriminates on the basis of content of speech or on the basis of the identity of the speaker which often serves as a proxy for content is subject to strict scrutiny if we disagree with your view that the supreme court's read case has somehow invalidated our own a circuit precedent wouldn't the existing eight circuit hastily decide this case it would but you can't look at van burgen without looking at citizens united and read if if this case were before this court without the prior decision invent bergen there's little doubt that the framework laid out by the supreme court in citizens united and read would control the analysis here and the statute would be subject to strict scrutiny and respectfully the decisions of this court the van burnam decision of this court used the mode of analysis that's inconsistent with later supreme court opinions and therefore can't be relied on going forward the district court here even erred by not considering citizens united in what it had to say about speaker based discrimination help me understand  what it does is it actually is a it's a ban on robo calls unless you meet one of the exceptions and the exceptions are content based and speaker based if you are a public school you can make a call using an automated dial using a robo call to anyone for any subject but if you're a catholic school or a charter school or a college or university you can't because you don't meet the definition of the state the state's definition of a favored speaker if so because it doesn't fit the it doesn't fit the school district exemption a catholic school is not a district it's deciding that certain speakers namely in this case school districts the state has decided that school districts are going to say things that people want to hear similarly if you look at the current business or personal relationship here a debt collector or a purchaser of a ham sandwich could be called by a business but a city council member or a state senator or a congressman or a u s senator who represent somebody can't make the same kind of phone call because the state has decided that somehow businesses that have some kind of business relationship with someone are favored speaker then you get to the next two exemptions that are clearly content based and this court even in bergan recognize that the next exception was content based which is employers can call employees about work schedules and the court invent berga to acknowledge its content based but then set up but we're going to rely on award and look at the underlying purpose of the statute to inconsistent with later supreme court of its reliance on ward to determine that because of the underlying purpose of the statute the statute it would it would it that the court would analyze this under the neutral time place and manner restrictions of  intermediate scrutiny versus b and there really tell a compelling interest analysis of strict scrutiny which the supreme court later made clear is required in this case as gresham want to contact his employees about things other but your client's not concerned about the restriction that you can only advise that work schedules he doesn't want to robocall his own employees to talk about the matters he just mention no but the presence of the content based exception is what the presence of the exceptions based on identity of the speakers and the content of the speech are what make the overt the complete statute unconstitutional if the stay wanted to prohibit robo calls just flatly for everybody i don't think we'd have a i don't think we have a claim here when they say it's flatly prohibited unless you are a specific type of speaker or specific speaker or you're making a call on specific content that's where the overall statute becomes unconstitutional  do you think there's any problem with an exception for consent if there were if there was a ban but they said if you had prior express consent without be a problem no i don't think that i don't think that would be a problem because that would be based on sensually someone saying e s u you can call me it's not it's not the state deciding that certain speakers are favored that saying i give i give you judge cotton permission to call me districts but not charter schools or catholic schools or universities or community colleges you know can't make these calls because they're not one of the favorite kind of speakers if the statute said you know clowns and tailors could make phone calls but butchers and boilermakers can't make calls that would clearly be unconstitutional and that's essentially what they do here without using those same words what they're saying is we the state are going to decide what kind of messages we're going to imply consent to and the kinds of messages are based on the identity of the speaker in other words the state has said the school districts are a favored kind of speaker business where you have a prior business relationship and they don't limit is this could be debt collectors this could be we're going to permit these kinds of calls for this particular kind of favored speaker there's nothing in the record we're nothing that has been produced by the attorney general's office that has defended this statute on that grounds and because because the statute favors these particular speakers and has content based exceptions the statute needed to be needed to be evaluated by the district court under the lens of strict scrutiny and the district court should have recognized that the later decisions in van burgen ers or the later decision then read and citizens united is actually abrogated what the score the mode of analysis that this court applied in van bergen and for that reason strict scrutiny should apply once strict scrutiny because you say that he implied what the state calls implied consent exceptions or content based or is it for some other well i think what we're saying is what the supreme court made clear in citizens united and the statute it issue in susan's united was one that said this particular kind of speaker can gauge in this kind of speech and the supreme court said speech that the statutes that discriminate on the basis of the identity of the speaker are most often a means to control content and that's exactly what the state has done here which is if an exception more on the basis of the identity of the recipient and not the speaker no i think in this case the statute is really based on the identity of who's making the call it doesn't say customers may receive calls or people membership dues to organization may be called it says businesses may make calls or the following speakers may make calls without getting the live operator consent in this case school district may make calls without the lab operator consent to these particular people how is that a means to control content that doesn't seem to restrict what the school district can talk about to the parents or what the people with current business relationships speak about because what the because by by exempting those particular speakers you're disfavoring other kinds of speakers so a school district could could make it could make calls to students employees and parents and was your argument right this is to control content because because by choosing favorite speakers that the state is implying consent based on the messages that they anticipate they're going to deliver and if you read the the briefings from the attorney general what they say is we are implying we the state are implying this consent because we think that parents teachers and students are going to want to hear recorded messages from their school board where the businesses are going to that customers of businesses are going to want recorded messages from anyone that they have a business relationship with now of course the way the state has interpreted that is that you know that a member of a political party or a donor to a political party or someone who voted in a political party's primary or someone who's represented by an office holder can't be called by that office holder or that political party because they don't fit under the state's favored business relationship exception they've got a different kind of relationship that isn't a favored relationship and what that really is the idea was you know the school district and the parents and the students agree no is it that was that was consent what i hear you saying is no it's the state saying you know we like this relationship so we're going to go ahead that the state is blessing certain relationships it's blessing the relationship between a school district and parents students and teachers but not other kinds of school or other kinds of educators and their parents students or teachers it's blessing elation ships over other kinds of relationships like affiliations with the political party or the relationship between an office holder and their constituents it's blessing particular relationships based on the identity of the speaker and  i'm saying what they're doing when they're when they're choosing those relationships they're starting with who is making the call and that's making the selection on the basis of the identity of the speaker and i see that i'm into my rebuttal time so that like reserve t that would be in the second exemption so if you're sending your kid to a parochial school there's an established relationship there probably are actually going to run them checks in addition just the fact that there's an established relationship but the fact that you've placed your child into that school to the same would even be true of a charter school if you're pulling your child out of public schools and making a selection to place them into a charter school there's going to be an established relationship there that i think would qualify under the second exemptions so i don't know how relevant that is but one of the things i heard from the plaintiff here was that you know a vendor of a ham sandwich could call you one of the second exemption while certainly if the vendor of a ham sandwich can call you under the second exemption in a catholic school or a charter school or a place where you place your child or university that you're writing checks to would be able to make a robocall so you know there's a reason to infer there that there are some kind of selection being made to favor public schools over charter schools over catholic schools or works out or you know exceptions work together separable plans have not appealed the biggest recourse decision that that provision inseparable i don't think the court needs to even get into it we did and if you want to go back and look at it in our in our opening brief at the primary injunction stage we did brief categories where it believes that consent is implied but omit other categories where there might be a reasonable argument that consent is implied like a political party with people who've registered with the party say or voted in the primary what i will say on that is that it's just not a content base stations so it doesn't get us into the strict scrutiny type of analysis so let me take a step back from that there is as you know case law out there in federal court supreme court otherwise the discusses essential situations in which a selection of a particular group of people by their identity is really a proxy for content so for example in the recast if you had a statute th churches can perhaps signs but other folks can't well that's a pretty strong proxy that what you're favoring is a is a sub religiously based speech over other types of speech now here at the distinction is that courts have found that you know when you imply relationship between let's say a school district and a parent or imply a relationship between you know a business that has an established business relationship with someone nothing in that infers that what the state is really trying to do is prescribe applied in very limited circumstances where a court will infer that the identity of the speaker is really a proxy for the content of the speech you know the leading case on and i frankly forget the name of it is that the case involving the santa maria religion out of california where they prescribe basically the butchering of chickens within city limits and it was clear if you went back and read through the legislative history of that city ordinance that what it was really directed at was not concerns about people butchering chickens within the city limits what was really even read what reid says is it doesn't knock down war it's only if if the if the distinction that you're making on the basis of identity can really only be explained by the content of th stablish relationships with people to engage and rub a calling that you would not infer in a situation in which the two parties are strangers to one another and the two leading reasons for that would be first one that you would infer that person receiving  for somebody who's receiving on wanted robo calls from an energy with whom they haven't established relationships to stop it in other words you know they know how to call their school district or their principal or whoever it is and  calling i don't want these calls whereas if they're receiving robo calls from any with whom they have no relationship is a more difficult task than bergen found that those were legitimate reasons non content based reasons to say that you would favor certain long as they're not really just barely a proxy or a you know basically a way of trying to get around the content based distinction by identifying a group rather than prescribing the actual content of the speech  i think one of the things to observe about that case is just how short it is you know it's a six page opinion and i think both in that case in the case in front of you the plaintiffs in that case and the plaintiffs here are trying to inject a lot of complexity in th statute really about what we really have in front of you or in front of us and what you have in front of you the statute almost identical to be in your own a statute at issue in patriotic veterans and what the court there side is look what we have here is a time place and manner restriction that size that robo calls can only be done if you get some kind of prior permission either explicit by you know prior permission for writing or by putting a live caller on the s and so it is really just a restriction requiring consent for that type of calls before they're accomplished maybe we should also think about the case this way i mean what separates conquest or mr gresham from a school district it is not the content of their speech right what makes a school district different from conquest or different from mr gresham is that the school district has some kind of a relationship with the person they're which is really what their business is or he could be planning to call them about something completely unrelated he'd be making a commercial call it doesn't matter the statute doesn't speak to what the content is of the speech of the call that the congress wants to make it doesn't speak to the content of what the school district is going to talk about it speaks only to that distinction in their relationships school district has a relationship with the person that is calling conquest and mr gresham do not and we could flip this around you know if mr gresham or conquest developed a list of people who are willing to receive robo calls the school district couldn't call those people right the school district couldn't take advantage of the relationships that mr gresham or conquest established independently and use that to m primary methods by which you can get consent are explicit consent would be either going to come a prior written consent so if you were you know that the say you were a political party you could send out mailers to people and say hey can we can we send robo calls he would like to receive robo calls and you could get explicit permission from people to do that the other thing you can do is put a live caller on the phone now you know if it were talking about political party as well now if somebody had voluntarily signed up to become an actual member of let's say the republican party or the democratic party implied consent to receive these calls and for other types of callers requires explicit consent and again the distinction is not based on the content of what they want to talk about or the content of what they're going to talk about it's based on the nature of the lation ship between the caller and the which i think is is is even under read permitted in the reads very explicit on that point and last it's really a proxy for content you know you can still make those kinds of distinction deals with that in a footnote and basically says it's irrelevant because they call them under under the second exemption players have argued that somehow all that analysis is relying on some line of cases that has now been rejected by by reid that is not accurate and we brief this issue to you in our brief but i want to bring a little bit of nuance to this in this way there was a split in the circuits before read as one of the reasons i think that the supreme court took read some courts had blast the concept that you could speech generally in an area as long as you weren't picking a side so you could pass a statute that says we're going to prohibit you know signage you know whatever it is put political speech so republicans can't post their signs democrats relying on this now rejecting line of cases that was rejected by read the circuit has always held in and was not doing anything in bamberg and outside of this they've always held that if you're making kind of area content based kind of analysis that's subject to scripts strict scrutiny the way that bamberg and dealt with the third exemption is by simply saying that you could do the speech anyways under the part two and so we're not really going to address whether the content distinction appears in the third exemption is relevant or not relevant so that remains good law it's not something it was dressed in to read and it wasn't something that relied on and he rejected analysis that was overturned by read mand back down to the district court to decide if the whole statute needed to fail or whether the statute could survive based on whether or not the exemptions were several which is similar to what you have here you've got a statute that is a general ban but then has essentially either content based or identity based restriction or exemptions and those when taken in whole it's not clear and the state has not essentially presented an argument that those other exceptions are several in other words what they would have to argue is that minnesota would have passed a complete ban without the exceptions and we think that the neighborhood enterprise's case is actually very supportive of our position here and i also want to go back to what mr larsen sort of opened with in discussing established relationships he used the phrase  relationships when you look at the statute it says messages to subscribers with whom the caller has a current business relationship and what i heard him arguing to the court was that any kind of established relationship could imply that consent  not what the statute says and despite the fact that that's what he's represented to the court here the stake or change its mind in the in the political context which is the context that mr gresham and conquest operate in they they may call them half of political parties donors who have supporters who have volunteers who have people who participate in their parties primaries they have there they make calls on behalf of constituents of office holders who have constituents they make calls on behalf of candidates who have supporters and donors if this statute was broad enough to allow calls to any of those kinds of established relationships i think this would be a very different case but that's not what it says here the statute is something different than what mr larsen was presenting to this court if any kind of us relationship permitted this kind of call to be made i'm not sure we'd be here but it says it's very limited to current business relationship not not the broader kinds of relationships that mr might just imply consent here and we think that's very very important to how this court views this case and lastly just to address patriotic veterans that decision is pending on petition for issues first are sure add to the supreme the decision is really short and i think that the seven circuit got it wrong there because it didn't address it it failed to analyze the speaker identity arguments that we are presenting here in this case and this court has not hesitated to disagree with the seventh circuit i point you