pure statutory analysis cases they weren't asked to look at the constitutional implications of what they were doing and they didn't look at the constitutional implications of what it is they had action here i guess that's the problem i'm having with your theory well we don't we wouldn't see how there could not be state action here because of what is happening eighteenth he has to be a state actor and do your theory or you lose well under one of our theories they have to be a state actor that's under the encouragement happen it didn't happen but how does that i mean we have he's encloses all the time from companies all the time we don't have to like them but that doesn't make me state action that's right but most of the asian clauses don't imply implicate the first amendment they don't violate for people's first amendment rights what we have here is a wholesale p c and he has no contacts every month in this court and the core of it is you're going off to arbitration and you can't go to court know they're all over the place that's right and you're suing every company that insists upon it he can contract it has a cause that is going arbitration by which first amendment we're not saying that the contract through what we're saying is that that they are engaged in state action as a private company because they insist on the and he can contract that says you must arbitrate that state action our claim is not that the private companies are state actors in fact if we have to prove that they're state actors and there's no way that we can actually challenge the f a a on a constitutional basis what the lower court's decision did here was immunize the f a a from any kind of constant constitutional scrutiny by the courts and that's really one of the major problems we have with what the district court the reason you have state action here is because it was the state that changed the law dramatically so that that enabled private parties like  d arbitration clauses were not specifically enforce that all ok so the f a a changed the law to make them enforceable as against large merchants for fifty years the f a a was not applied to it he's in contracts then beginning around twenty years ago the supreme court started interpreted in the f a a as a political teaching contracts and what that resulted in was in the political ration of these clauses so you have the state empowering private parties to effectuate private that provisions of the first fundamental first amendment right to go to court think that is how do you know it's not the state actions nothing in the act that says that eighteen t is required to include an arbitration provision and it's a private contract is there that's right it just says that if they do then we're going to elevate the supreme court has said we elevate arbitration alternative fact that the government could not require a t n t to deprive people of their rights to go to court i mean that would be coercive everyone agrees that that would be coercive and if congress wrote a statute that said eighteenth he's customers can't sue eighteen thousand court that would be a direct infringement of the petition cause so in essence effectively what has happened here is that the supreme court the government has s look we can't require your customers not to see you in court but if you go ahead and do it will point you to do it and if you bring your customers from going into court then we'll use the power of the judicial machinery of the state enforce those contracts so rather than doing depriving eight hundred numbers of your position that every time a core rules in favor of a private party to enforce a contractual provision that constitutes state action no not at all we're saying this is a particular kind of know what we're saying is that the state cannot deprive consumers of their right to go to court that that's a given well how do i can't how does that establish a level playing field if in essence what you are challenging concepcion you want a scale where trials are are at a higher elevation than dispute resolution through arbitration that's because the petition clause guarantees consumers a right to go to court to a government court or betray shinies before private or betrayers there are fundamental first amendment interests that are unique to litigation and going to court that just want vindicated in the arbitration context and the supreme court has discussed this in bill johnson's restaurants and be contracting the public available form in a court to air disputes to advocate ideas public courts enabled the law to evolve through stary the syces effect you don't have any of those benefits none of those first amendment rights of indicated an arbitration it's a confidential proceeding it's no evolution of the law because arbitration rowlings are not subject to stare decisis and there's no public forum for people to advocate their ideas if you look at those two cases the bill johnson's restaurant case may be ok construction case the court talks a lead great about why the petition clause protects the right to sue in court so what happened willow was that the court decided well because all that the supreme court has done is permit eight hundred eighty two to prevent consumers from going to court i didn't rise to the level state action and as i said eighteenth he cannot be a state armont decision in the denver area case she said it doesn't necessarily follow if you're challenging directly challenging the constitutionality of a statute which is what we're doing it doesn't matter if the private entity that effectuate says the private censorship is a state actor or not but you need a you need an avenue to challenge the constitutionality of any statute that has the impact directly or indirectly of violating people's first amendment rights if you can't challenge it what you're going to wind up doing is giving rise to potential rash of unconstitutional laws an state legislature or congress knows he can't do something because it's prescribed by the by the constitution for example example we provide in the brief is gun control congress knows it can't say you can't carry guns on city streets that would be a direct violation so if a state wanted to affect you a pervasive gun control regime all would have to do under the is say well ok let's permit private store owners private businesses to hire security personnel to confiscate confiscate guns within one hundred feet of the stores and then you could i have main street cleared of guns indirectly without gun owners giving them any ability to challenge the constitutionality of of that statute so i mean it creates a rash of problems but this is another problem with what the district courts approach the denver area case itself is right on point but what portion of it i mean this is actually rolling i mean as i see it you've got supreme court opinion so what do i do with that i mean well which part of it you want me to follow it's actually not just the plurality opinion if you read justice kennedy's concurrence which was joined by justice ginsburg justice kennedy is saying plurality ruled so you have when you really have a six justice majority rationale for what state action is and what he said was that of course what what the  majority panel found which was precisely the same thing that the district court here found that mere permission is not enough to be state actions that supreme court unanimously rejected the very analysis that the district court employed here and what the majority rationale and state action was was that if the state steps in and issues a permissive statute that alters the legal relationships the existing legal relationships amongst the parties that's state action and that's precisely what happened here what the supreme court is for altered the legal relationships between consumers does it make a difference in denver area that we were talking about a resource a public television  broadcast band that is heavily regulated and in that case public television channels had been reserved and denver area challenge the cable owners judgment as to what the content would be of programming shown on a public television channel i don't think it makes a difference that the the material facts are identical to  private actor the cable television channel owner and i'm i'm trying to see the analogy here to the facts well what happened there was that in that the private cable operators were given permission by congress to do something that congress itself couldn't do congress knows and you know we could not censor the programmers so we gave permission to the operators the sense of the programmers what happened in our situation is that congress the supreme court knows they cannot kick people out of court so gave eighteen taney and other companies the right to kick people out of court said if you do that will enforce it in our courts congress will use the coercive power of this one of the judicial machinery to enforce your private censorship of people's right to go to court it's an entirely parallel circumstances with denver area i was just going to say congress were courts of limited your restriction congress tomorrow could tell say that the that the article three courts cannot hear cases involving arbitration clauses in acted in statute and we would be out of that business oh well that's correct how does that get you well i guess congress can do it but the supreme court's interpretation of what congress can do cannot well the supreme court's interpretation of a congressional act is that was going to be applied retroactively as if that one twenty five congress intended this result but i guess the core of what we're getting at is that congress cannot remove the discretion of a co equal branch of government to consider petitions congress could not tell the president you can't hear petitions from eight hundred customers congress couldn't tell the president you can he hear the petitions but but you can't rule on them you got to send him to a private arbitrator and then you have to defer to the private arbitrators decisions likewise congress can't tell the judiciary the co equal branch you don't have discretion you can exercise your discretion to hear this petition you've got to send it to a third party what's the difference between saying you can entertain discretion and saying you can entertain the case there's there's no difference both of them equally abrogate individual's rights to go to court just as effective and one is a direct restraint one is an indirect resource tomorrow could kill the article three courts they cannot hear civil rights cases that's that's correct completely within their power that that is correct but that's not what the congress is doing here congress is saying don't give that away because if congress is the federal courts you can't his own rights cases the state courts have to be open provided that there is a constitutional access to court that's going to don't give that one away you might lose anyway but don't g a thank you honor and and that's right i mean most most of these limitations that just as your honor was raising and eighteenth is raised are not limitations that prevent people from going into court have an issue and saying you know you have to go to a private the speed resolution instead of government court these are these are restrictions that allow people to go to different government courts so it's not the same thing now the final point i want to make is that if this isn't encouragement what the supreme court has done what is a district court below felt that there wasn't enough examples of what effect parties that discretion but does not mandate arbitration as a dispute resolution because the encouragement here was very successful here because they gave been free to negotiate a contract that included arbitration the historical record is very clear and the courts would not enforce specifically enforce arbitration agreements before nine hundred twenty five and the record is equally that for the first fifty years of the f a a if he's an contracts against consumers we're not being forced even even recently the supreme court noticed the mortenson case describes this that in fifty percent of the cases consumers were were avoiding he's you know arbitration clauses and then there's the ninth circuit said in mortenson the supreme court was motivated to step in and stop if that's thank your honor may please the court andrew pincus for t n t mobility i'd like to start if i might with the state action doctrine issue and just to set the stage for the breadth of the argument that's being advanced on the other side i think it's important to step away for a minute from arbitration and think about confidentiality agreements which are routine in business both businesses with their employees go shaders with potential counter parties trade secrets lots of confidentiality agreements i think the theory here would mean that the substantive restrictions on speech imposed by all of those agreements would be measured by the first amendment strict scrutiny standard and i think that illustrates the problem with the approach that that's being advocated that the supreme court in the luger case sort of explained the limit that the state action doctrine tries to  draw by pointing out that it's important to restrict state action to government actors and actions because otherwise private parties would face constitutional litigation whenever they seek to rely on the state statute governing their interactions with the communities surrounding them and this court said something similar that we quote in our brief in the ono case so the question here really is is what what is that dividing line and what the supreme court has really said is in the contractual situation you don't look at the underlying agreement is not measured by constitutional constraints obviously there are lots of constraints on what courts can do and in the in the possible enforcement of that agreement but the underlying agreement itself couldn't be subject to constitutional constraints because that would mean that that very private ordering that the contracts are designed to do would be subject to the constitutional limits that apply to the government so that's the line that the court has recognized in the flag brother's case and in the particularly in the american manufacturing case which i think is very much on point just to talk about it for a minute that's a case that involved a statute a provision in the workman's compensation process that said that the workman's compensation insurer could withhold payments if there was some dispute about the legitimacy of the service and that was challenged on procedural due process grounds and very similar to this case the challenge was was asserted on a facial basis the argument is this is facial we're challenging the statute itself so we're not this is not really about that private act or the insurer withholding the money this is a challenge to the facial statute that was an act that by the in that case by the pennsylvania legislature and the supreme court said no we're not going to look at the case that way we're going to look at is more to address that case in the ono case judge berzon speaking for the which was another case about the question of judicial enforcement and underlying agreements and what judge berzon said in that case is and it's been recognized by other authorities that that really is a unique rule for racially discriminatory covenants and the court expressly declined to extend it beyond that because the argument was being made i don't know that that was a justification for looking at the substance of the legal regime of the find state action unfortunately for the other side you know loves arbitration therefore is not going to reach out well and i think even even in context of an arbitration like the on  case that i was referring to courts have said that shelly really is restricted as you say exactly right to something that was so up noxious that the court really were reached out to find a way to get at it but that decision really subsequently has been confined to its facts  and so in american manufacturing the court said where where yes there's a statute here but what that statute does is leave room for private action the withholding of the money and that isn't state action and therefore there's no challenge that can be brought even though it's being framed as a challenge to the terms of the statute and i think the luger decision also talks about flag brothers which as you know was a question about the enforce sale by a bailey  permitted under new york law there the new york law the uniform commercial code gave the baileys the permission to sell that the authority to sell the goods the owner of the goods went into court and said this is violates due process i want to challenge this statute in flat brother said no that's private action you're trying to get an injunction against a private person and exercising the rights confer the power that confer to him or her under the statute there is no state action here and the court says in luger describing flag undoubtedly the state was responsible for the statute the court the response of the court focused not on the terms of the statute but on the character of the defendant action by a private party pursuant to this statute without something more was not sufficient to lead to a characterization of a state actor and i think that's our submission is that's exactly what the situation is here turning to the denver area case  let me just mention the gun control example that my friend raised there's nothing that gives to the extent a state law gave a store owner the power to deputize private marshals and have them go out into the streets and impose their will without a contract or anything on passers by to prohibit guns that would clearly be state action because the state would have given its power the only way those private people could be subjecting passe by on the city streets to some no gun rule would be because they were exercising government power and obviously conferring government power on a state actor is state action on a private actor does make that state action but that's not what's happening here this is briar's opinion for the plurality i think it's clear that the sentence that my friend relies on is a description of the lower court it's not a holding that every statute can be challenge on state action right because that's the very argument that several years later the court rejected an american manufacturing it seems to us that it's best analyzed on the on the ground that as justice prior describes the petitioners argument this is an industry that was very in tangled with the government uses the public rights of way reliant on government authorizations this is a situation where the government had targeted a particular had had prohibited censorship broadly and then gave back in a specific area so it's a very different situation than the than the situation that we have here turning to the encouragement test it's a pretty tough test to meet the supreme court in blonde said the courage when has to be so significant that the act in law is that of the state so mere encouragement and approval are not enough in american manufacturing for example that statute created gave the insurance company the right to withhold the money and was structured in a way that encourage that because that was a way to double check against fraudulent services and  court said that fact was not enough to find encouragement the skinner case that was referred to was a case about drug testing by railroads and in that case of the court specifically addressed this question of encouragement and why it found encourage minuter and relied on a couple of factors that aren't present here first of all the regulations permitting drug testing superseded any contrary provision of collecting agent agreement they gave the federal government the right to receive any drug test that was taken so the federal government was sort of in the drug test in the drug test process and it barred the railroads from divest themselves  contract or otherwise of those rights so what the court said those that combination of factors none of which are present here created the sufficient encourage men and really turned the railroads decision into that of the state by basically saying you can't decide not to do this in any kind of contractual way and if you do it you have to give us the results clearly making the government very very involved in that decision and in a way that the government is not involved in the decision here  turning so unless the court has any questions on state action i turn briefly to the petition clause question and as we raise in our in our brief an alternative ground for the court  to address this issue would be to say that even if there were state action that there is no petition clause violation here and we think the clearest reason for that is that the petition clause provides only a right to present a petition it doesn't confer any right to have that petition decided on the merits addressed it doesn't even give you a response a right to a response to the petition the supreme court has said that in the smith case in the minnesota editor writer to an appropriations bill saying there will be no remedy there will be no action by this administrative body with respect to and then named a few characteristics that singled out this company that was providing charter service to mariners games and the d c circuit faced with the petition clause challenge said all the petition clause gives you a right to do a petition you can still file your complaint with this body true they can't decide  t but you can file it and you can still go to congress and complain about the fact that this restriction has been put on this body and that's really all that the petition clause gives you in terms of relief the reason it is clear is  otherwise the petition clause would be a check on every limitation on court jurisdiction every statute of limitations question everything to do with court procedure would have to be looked at through the lens of the position clause because all of those things conceivably could be argued by someone  to be limitations on the ability to get a court decision if there was a right to do so unless the court has any further questions i'd rest there i don't think you  pennsylvania statute that gave pennsylvania insurers the ability to for paying certain claims it wasn't the radical transformation of arbitration law that we're talking about here it's entirely entirely different on the merits of the petition cause again the right to present a petition is one thing one aspect of the petition clause right to go to court but but the text of the petition clause is very clear it says you have a right to them it simply says you have the right to raise them that's good that's that's that's correct but that's been ter period in the sosa case a ninth circuit is meeting meaningful access that's been interpreted in the california transport case water transport case of the supreme court  being a right to be heard but again the central point is that the government can take away judge's discretion to hear a petition if we if we if you wants to hear a petition sure it's got theoretical discretion the supreme court the only court the article article three talks about has in civil cases absolute discretion as to whether to hear cases but congress cannot tell the supreme court you can't exercise that discretion in favor of hearing a case and that's really the fundamental difference here as far as the judge garland decision again very different facts the end result there was that congress gave a remedy and congress took it away it's not congress telling the while we're doing a conference some of our law clerks will talk to the students and then following conference will come out and talk to the students