three minutes for rebuttal your honor is today the case before you has three different theories and it's essentially pick your poison going forward as to the issues involving the use of non disclosure agreements as a means to stifle speech about well about how and when and what contacts michigan state tax assessors apply the principles that they learn as part of their class to dispute a public dispute about the the imposition of taxes community wide in a town in little township up in mid michigan area i have presented to you three legal areas for you today to consider based on the three claims that we perk that we have brought forward  the main one being today is that we are alleging that the use of a non disclosure agreement system is a form of prior restraint as this court said and a clone in a prior restraint of any system which forbid the court order says you cannot speak doing this and if you do there will be punishment if you speak on the topic that you're not allowed to speak about the same thing as occurring here which is the here is a contract as opposed to a court order that says you will not speak and if you do there is a punishment that decided it was a little bit of my struggle with the briefing is that the the indeed specifically since you may not show you may not use this training material your briefs argues we can't say anything about the trial and said but that's not what the indy i sent us you could argue in anything on the concept you could come forward and say you know they are still cheating the steps are still growing here's the law that relates to it you could take what you learned in the co and explain why that's the law in the steady and why the assessments are incorrect so here we set barring you from addressing an issue as opposed to barring you from using protected documents that trying well i would point the court to paragraph one of exhibit d in the in the nd amended complaint which i guess i would take an objection on the fact that the language of the actual n d a says it's the content of the course material and then it goes on to include questions and answers as part of that that you're not allowed to speak about it or and says you can't transmit an all in court in oral or written the mechanical not you cannot reproduce that documentary evidence correct well i don't read it that you're reading it more narrowly than i think the plain language provides for in this instance it says that the content of the course material not the documents themselves know of the n d a said you're not allowed to retransmit the documents now we may have a slightly different case so your argument is that because these training materials relate to the laws of michigan and their application in assessment that the m t a is barring from independently arguing the laws of michigan that govern assessed that would be what the language the plain language of the n d a agreement provides for because it doesn't say the documents themselves it says the content of the materials content would be the words concepts and ideas that are placed upon those themselves as going forward as being a basis to try to argue that the assessors themselves are improperly applying the law incorrectly he was using the content not the docking not necessarily the documents themselves but it's the content of those materials is what's provided for as being the basis for which miss frick proceeded to and the two is for punishment purposes so it was better was it actual publication well it was the so there's been informal hearing as counsel for mr os again that part of the discussion was also about the posting of these things on to facebook itself which included the concepts and materials from the actual so so before there was any question about its punishing or about examining what your client had done are you taking the position that your client had not replicated teaching materials to reach the end apply no i'm not i was saying that he would he used a portion of the actual document itself going forward as part of his communication his petitioning activity with township officials does he's being punished for addressing the whole concept well to be perfectly honest i don't know exactly what he was put he wasn't punished in this respect because of course part of the defense that we raised was at the it at the hearing was st amendment protections the informal subcommittee provided no basis or explanation as to how they reached their particular conclusion the place a community it's a bit before any activity was undertaken against your client portions of the training material he used he used portions of the physical documents themselves an electronic pitcher if you will as the heart of the part of his petitioning activity with township officials yes but their help to the extent that this was not national security related information that was in fact a violation of the st amendment to try to preclude the use or discussion of those particular documents these documents are not are not keys they're  not specialty items are not they're paper and ink paper ink records ideas concepts and thoughts which actually is what the idea here is that of course when you're petitioning to a township official you would like to show them the official position of the government as they've ever taught their us as township assessors because that would go to show that the local township assessor who was at odds with mr osterman here was in fact doing this contrary to both the law and how she was taught the council nothing would have stopped her claim from simply paraphrasing right i don't i don't very not yes but the problem here is is the issue that we're raising on this is even if you use the documents themselves the documents themselves do not contain anything on there that would warrant to be covered by an n d a in this respect for purposes of an n d a name the key here is i mean if you look at it now like let's let's examine a yeah you have a nondisclosure agreement because you've done some more to create documents or training or teaching that you want to protect you want to protect the sat the two have been protected because that's not what they're claiming the reason for the n d a was the specific reason that the government miss frick and the government here said they needed the n d a was to prevent public confusion of the concepts that mr  advocating for it wasn't because it was trying to protect the the interest now they may try to make that position here today but that's contrary to their position they took below there is no harm and there's no interest that the government has  suppressing ideas whether it's recorded in oral form written form audio visual you know essentially by putting things on paper the government is saying you can't talk about or share these documents even though the concepts themselves are not protected by any sort of government interest that would warrant protection the government has no copyright here and i think that's the one thing if i can leave on this is that the government and we've actually pled that to again this is a twelve b six stage at this the other procedure of this case is coming we have specifically pledged that the government has no intellectual property rights into these particular documents or the items that are on the documents themselves so it's our position that you essential if the government can't use an n individual which i think makes it distinguishable here yoder was a young student who now and i say youngster in a college student who was trying who was who violated allegedly violated the  if you want to say the agreement to hold certain information confidential that information was private medical data of the individuals that she was observing as part of her nursing studies hipaa and federal law and the private aspects of those individuals that are there were the ones which was being parlayed or otherwise put out in the world here the the message the information that is supposedly being protected is michigan law and how michigan law is to be applied again i think we're getting i know they're we're talking about semantics but semantics are important here the language here that and i and i have attached a copy of the meeting minutes as part of the nd amended complaint it's at page id three hundred and forty nine dollars the language is that we will no longer in force the current nondisclosure agreement they did not say that we will not invalidate the michigan superscalar the u s supreme court in the city of mosquito versus a lens castle said even when an ordinance for example is rescinded that is not good enough grounds in order to move the case because the government could simply change its mind and take a different path forward the government here has the burden under the i think under the voluntary association doctrine to prove that they cannot ever utilize  course you know things change and i think they say you have a plan if they get punched in the mouth so some of that has changed based on the arguments that i just took part in here that i want to start out with a couple of things that i think need to be addressed right out of the gate content does not mean concepts this whole idea that that this and he it was meant to preclude speaking about property taxes by an individual taking a course to be potentially in the field of being a tax assessor in the state of michigan is absurd to me that's an absolutely absurd argument i don't mean that is to be insulting that's just a bizarre interpretation of an n b a it's absolutely about taking materials as they exist within of course and replicating them the that is what the n b a speaks to and that's what it's about any other interpretation would be absurd and that's what happened here i mean it's admitted that there were beta republication of these things and to say that there was only one potential reason why you might enter into such an n d a and sort of agreement like this is also somewhat baffling there's never any situation where there's one single solitary benefit of something like this and certainly there is a benefit two keeping course materials no nobody wants to take the current bar exam and disclose the questions that are exam doesn't want to do that test prep courses don't want to do that the commission doesn't want to do that it's a lot of work to prepare these things and they don't want to  repairing them every time they have to offer a course and part of keeping up the integrity of this program is making sure these things aren't just floating out there test questions and and and to be clear this isn't just one examination and then some some  materials this is a course there are weekly assignments there's a cumulative score going throughout the throughout the course and if you end a cumulative exam at the end of it so all of this they consider to be a part of their house a proprietary there may not be a copyright here but i don't i'm not aware of any situation where you can't have an end if you don't have a copyright i just i'm not a copyright attorney so i'm not going to go too far on that  and i'll just say that the language in the n b a that talks about content is very distinct just strange pointed out it's different from concepts it doesn't say concepts from it says the content  an end i will say it is not the official position i think that was part of the argument that these materials are being held out is the official position that's the confusion point here these are prepared for a particular course to try to put together hypotheticals and problems but they're not letter rulings they're not promulgated rules they're not statutes they're not part of the constitution of the state of michigan these are offered within a course for the purpose of trying to put people through a rigorous lifelike situation but they don't carry over into the real world as some sort of binding precedent and that is one of the concerns here so i'll say that i think there are three reasons why the lower court's decision should be of terms as it was well reasoned and correct the court correctly how this is not properly described as a prior restraint if anything it would be a potential subsequent punishments marial the other was not we're not talking about a court order a law or an injunction we're not talking about seeking approval in advance of some sort of communication we're talking about the potential and here we had an informal review and no actually taken but the potential for some action and again i'll point out that would only be for people who were licensed by the state of michigan if you took the course and failed i don't know what in that agreement would have any binding effect or impact on your life if you took that course and passed and ten years later let it lapse i'm not sure what impact that would have on your life and i'm not sure what impact it had on speech here at the changed from the day before he signed up for the course he didn't have those materials to reproduce until the day after he spoke know i think this court's that i'm a little dense perhaps that this court's order for supplemental briefing didn't necessarily strike with me i really tried to make the concepts now that i can see where there's overlap but i think if me and preparing this argument to be a little bit better than when i was preparing three unconstitutional conditions that tend to relate to a government benefit that is conditioned on  limiting one speech in a way that the government could not do prior but for that exchange and this court asked us to look at the government's spending line of cases and i think that as we briefed when when that spending is attached to a requirements related to that program or that specific thing that it's being handed over in those cases money but here coursework course materials examination materials the government has a right to place reasonable limitations on those things handed over it gets in trouble when it reaches outside of those parameters of the things related to that if they had said you can't speak up about the commission you can't bad mouth us disparage none of that happens here it's in that regard it's it's not content based at all so i think that's what distinguishes this from an unconstitutional condition in that it's the significantly related other than the argument i heard a few minutes ago to these exact materials that answers your question but i that's that's my take on the unconstitutional condition claim i would also like to set the lower courts working through these fairly novel claims it was an excellent job trying to trying into the case law that we have available is really not much on point actually that you're going to find like this other than your letter and and i'll admit those planes were somewhat different but factually it was striking similar say in the your case as you know there was a student and role in a program signed and agreement that said that they would limit their own speech and that limitation was related to things that they would learn and see and and and  talked about things observed about it didn't even identify people so it's not clear that it was a tip of violations would have been some much bigger problems for the student i would assert than just violating the university  i would say you know it was even much more broad broader and broader broader than the current provision that we're talking about and that was upheld in her st amendment scrutiny so i know that the claims were somewhat different but i think the lower court was was of the concepts from that case because here we have a student up for the enrollment would not have that access to this information agreed to limit the use of that information in particular ways and violated it but don't i don't think you have to be redundant saying that you have a contract you have decided that you're not going to enforce it and you publish that to the people who are the other signatories to that contract unlike a local ordinance which i'll admit that you go back and reenacted a local government at a later time i don't know how you unilaterally retro re buy a contract that's been just about that's been we're not going to enforce it i mean i i would discourage a client from trying to do something like that barring some unforeseen circumstance that i'm not thinking of here you could introduce it again for new punctual or new material i think that the re certainly could be a future commission and that's the other piece of this that's you know ok i want to say a wildcard that's not correct but a little bit of a variable is d this is a commission appointed staggered terms by whatever governors in office when there is a vacancy and this commission that was at issue in this case was completely different from the one that enact it in and put this in place and it's not the commission this case that said that they were going to use these and they haven't beyond that i'd say i don't know oh i would say having to pull from yoder which is not ideal but that is the closest i think in terms of guidance we have on an issue like this just shows us that there is not clear guidance on this particular kind of problem and for that reason that there was no  my client certainly had no reason to know no clear guidance to say that she was violating a right she's entitled to qualified immunity i would finish also by saying going back to the comment about  this no longer being a place that is moved expertise young relief is not appropriate because there is no current class or individual impacted by these agreements it's not in place it's not even it would be purely hypothetical which  certainly could happen in the future but there's not a likelihood at this point with that unless the court has any questions i would rely on my brief and then over the rest of my time you need question not publish in an exam part of the exam did not publish any parts of the any answers to the exam it's the materials themselves the concepts that were in the actual documents that were actually the ones that were published to that's what i have not heard from the government today as an explanation as to why they would need this and da to begin with why would you need someone to be precluded from being able to speak about what's being taught to the public officials who become public officials in  the application and implementation of our taxing laws in the state of michigan i mean what we especially heard today would be as if this court for as was a weird analogy would be as if this court said you're not allowed to discuss publicly the contents of the briefs that you submit to this court as a condition of coming to this court to have public services rendered in the form of a decision and when i hear my brother counsel say what you can talk about you can you can you can trash the judges you can trash the court i say it ok here's how much it costs and i have a way since we've created these documents you can't make them public it's in india and you signed off i mean that that's what i'm struggling with why is it not just  just a simple contractual right that could have easily been avoided by using all the ideas and concepts and everything that he learned from the course and even  likely with and actually read what he did agree on track not to reply to points in response one is the government can't create secret documents in this respect that's the whole point we can't create you know that's part of the openness and transparency of government as required on the st amendment that these documents outside of the national security context is a st amendment violation you can't use a contract law to in the place of a rule no i would have met this case would be a lot easier to me if this was a rule or a statute in some way as opposed to a contract governments can't enter into contracts to to force people to give up their right to share these public documents created at public expense and what i'm hearing is is that we want to create through contract law the ability for government to create secrecy that's never has been that is that is that an anathema of the st amendment and i would argue that this court should not be the st in the country to be the one to create that sort of system because the the u s supreme court is explain any system of prior restraint contract law or otherwise is precluded under the prior restraint doctrine thank you and your counsel thank you to both of you the case will be