california and so the matters relate to that grand jury investigation and the court has granted the parties to the joint motion to keep the courtroom closed for the purposes of the honest may please the court this appeal involves an unprecedented prosecution of political speech and an a p a comment period never before in the sixty year history of the a or the false statements statute has such a prosecution been attempted until now a prosecutor in san diego is attempting to prosecute political advocacy critical of an agenc amendment barque the government from monitoring public policy debates selecting and branding certain speeches fall in seeking to incarcerate speaker we rely on the crucible of debate in resolving public policy issues issues relating to the government's proposed changes in law we don't resort to grand jury investigations to determine what is good and sound public policy and what laws should be  d that's part of our profound national commitment to wide open robust uninhibited debate and we don't stand alone on this issue but this congress agrees what's the question of debate here though  the statements that that your client has made to the government are according to the government demonstrably false and were designed to mislead the f d a these were not matters of political opinion i heard they were not matters and they were not matters of it would be a bad idea to regulate this would be a good idea to regulate that or if the rule ought to look like this not getting punished for that of two point your honor first there is no showing or finding of knowing falsity in any speech in this case what we have is the government suspicion that certain speech is all that's all you have it's never been proven there's been no finding by a jury or  you're on a race or want to respond to it it's political because it's part of a comment to admit it to an agency relating to a proposed regulation by the agency the supreme court in the riley decision made clear that it's not appropriate for a court to parse out certain sentences they're part of political advocacy and random and protected speech and other parts protected speech because it point they never receive that claim from a consumer challenging the safety of this product or a report of an adverse effect associated with the products you is that and the words in each of the statements that are challenged by the government there are words in each of those statements that are fundamentally and take us for example the word serious the g a o report in the exhibit  discussing in that regard was the fact that these medical experts and scientists last that government employed to extra many many many many words and language but when it's when it's true with respect to words or to be the subject of a false statement prosecution it cannot stand if the words are fundamentally ambiguous no false statement prosecution can result but let before we get to the to the words and i'm not a disability since i have no idea what the evidence for showing is that the government submitted there's a fundamental threshold issue for you about whether the government can constitutionally prosecute political speech and a p a commentary for falsity without first demonstrating according to the constitutional standard for political speech and overriding compelling justification and that this is the least restrictive means to do it and the government failed to demonstrate any overriding or compelling justification then if that's the sims then the first step the first amendment kicks in here i mean that the analogy that i first thought of when i heard your argument was an ar pennington doctrine in the any trust context and i noticed someone i think you cited someone may have cited the nor case but if you go back and you look at that and that's where you basically have in effect  lobbying activity to the government that could end up in a something that would be in any competitive situation for your client but on the supreme court of course said you get a free skate on that one right and that's the only quiet out of the circumstance i can think of but i don't think it really flies because they didn't based on the first amendment well and i think they set the course we have other rules that privacy under which you can be prosecuted for false statements that then brings me back to two questions one why why would you know that any press type of the unity apply here into nor pennington says there's other rules and the rule we have in section one or one which on face basically permits the prosecution i don't think we have our our role isn't to decide whether your client did or didn't make a knowingly false statement that's just the allegation and you're saying you can't prosecute that allegation and they're saying you can so that's all we need to know about the facts i think yes right but i'm still having trouble understanding what outcomes are first and then it rubric as political speech given the nature of the allegation well your honor process is very is very close to formal rule making which is as close as we get in any contact to having formal trial like procedures in the end result which is a rule and the f d a is one of the few agencies known for once they've received comments any party can request a hearing at which interested parties may come and testify now if you came in to testify would it make a difference whether you're put under oath let's suppose that we had somebody from your client who request an opportunity of coming and testifying before comment on that you still it's kind of for the f d a to rely on right i think every speaker shares the comments for the purpose that they'll be relied upon i think that's the purpose of submitting the comment that the point is what power does the government have to punish we're stressed people based on the government's believe that those statements are knowingly false that's the question and we have a constitutional balance between first amendment rights that are implicated based on the you keep saying well what right do they have when they can prosecute they may not win but it seems to me that i knowing falsehood is not an unreasonable intrusion into the first amendment in the context of a public interest situation i mean look at election law and everything else if so why why it is so i just take question is if it's knowingly false then why is there a problem there's no finding of knowing falsity we don't know what the speaker intended by words the g a o determine where ambiguous we don't know and that's the problem the stuff that's your argument to the jury isn't it i mean what you want to do is you want to shut it off so it could never be prosecuted at all and it seems to me that to say that someone could you know your clients may not be guilty because they didn't knowingly misrepresenting this is knowing false that's the i don't know but you're simply saying you can't even prosecute them for a political sphere and we don't turn to criminal prosecutions to decide matters of political speech but i also believe that the statute while it does not explicitly carve out false even prosecutions for administrative agencies it leaves a very dangerous and unacceptable anomaly because it would allow if the government's argument is believed the same speech communicated to congress with respect to its law making function could not be prosecuted clear legislative congressional exception they somehow forgot to include for example administrative but the statute is so clear i can't even conjure up that argument so doesn't that suggest to  is clear according to the supreme court well i think it shows what the government's purpose was in respect to the carve out for false statement prosecutions for the law making function of our government the fact that it didn't address the ministry of agency is this is quite understandable since no prosecution in the history of this country has ever existed for political speech in connection with an e p a comment period this is never happened before it's never know she's trying to protect particular commercial benefit or a property right from the government and the government does not solicit fifteen thousand comments from the wide ranging public engage in debate about whether this person is qualified they have to look at the person's tax returns or their application sometimes they're sort of fired sworn maybe not but they look at that person's particular information for this particular commercial benefit here we're talking about a proposed change in long law that people interested in the proposed rule not specifically it was not a personal invitation but it's a public wide national number of patients to make comments we have first amendment rights in this country to petition the government and be critical of prosecution it ranges the danger specter of you can't discrimination the government's unlikely to target folks who frankly support their proposed rules for false speech and when we look at just the federal register in this case sixty two federal register three zero six nine zero there's a statement by the government that could appear quite false and misleading the government states the available evidence strongly supports that adverse effects are caused by fed the supplement they all going to be subjects of alterable grand jury investigations there's another statement by the government that i think is very important at sixty two federal register three zero six seven nine the government states there's a virtual absence of publicly available safety data on offenders satellites absence of publicly available safety data if we look at page three zero seven one five of the federal register sixty two there are numerous references to human clinical studies double blind randomized placebo controlled clinical studies that are published journals like the international journal who basically now contain safety data there are references in the federal register am trying to understand your argument and i fear this i think that goes to show where something on the part of your client or anyone else has knowingly so there's all this data to the contrary and so isn't that a question of rather than permission to bring the prosecution i keep kind of stumbling here us too the difference between what one would present in defense of the prosecution as trying to understand i believe i do i think that our position is that there can be no prosecution for political speech because these issues of falsity whether they're perceived in the government statements or industry statements the standard of demonstrating an overriding government purpose and a compelling justification and that that criminal prosecution thrown people in jail for speaking out against government action is the least restrictive means they haven't met that they haven't met the standard and so they can't prosecute this speech the court wants to look at is a no win deliberately false statement ever something that should be countenanced by the first amendment the type of speech that should in fact be countenanced because somehow it adds to the productive dialogue comments and that an individual or corporation can and deliberately knowingly come up with a plan to mislead that federal agency to either get it to promulgate rules that are in accurate or to get it to promulgate rules  that don't apply the words a particular product is absolutely in my opinion absurd there's nothing in the case law whatsoever that suggests that this should be appropriate but for help and mr mansfield suggested one of the problems here my viewpoint so that we only publish those we only punish those who say there are no planes or no complaints about our products and we don't punish those who say there are millions of claims out there against against these health products i would suggest that he's mixing apples and oranges your honor the reason i say that is because there are in fact very sound judicial doctrine to prevent the government from engaging in selective prosecution however i don't think you can use those arguments to try to boost strap yourself into in view point discrimination to i think if you want to analyze this through the guise of viewpoint discrimination and analysis that i think would only be embarked on by the court if they did find it to some type of speech that is worthy of personal protection but if you do that you have to start at the very beginning and that would be looking in the words of the turner what the court would say the supreme court the principle increase determining neutrality would be whether the government has adopted a regulation of speech because of agreement or disagreement with the message it conveys i think that's a starting point what happened was that one thousand and one that the government did not adopt one thousand one to suppress any type of individual idea in less you get to that point you don't even enter the area of concentra viewpoint discrimination whatsoever if in fact the government i and try to convince them to do something that would basically be illegal would give you a monopoly in a market why isn't this analogous where they're basically trying to convince an agency not to take this action and in doing that they're exercising they strictly their right to petition the f d a so why why isn't there an immunity zone well i do think there is an area you can analogize between the two cases you're on a break i do think they're different in fact i think they're very different the first thing i would point to that i would look at from analogy is what we're looking at here and this is the area where conduct and speech overlap and here we are moving into actual conduct as much as speech which is one of the reasons conduct at all does that it prosecutes speech well you know again there are indeed a number of statutes one thousand one think is the one that we're looking at there are other ones that we may go after but it's speech as conduct in a way religious freedom and even setting up these churches it was only to determine if the churches were simply another way to avoid taxes by setting up these churches the individuals didn't pay their taxes or the way  is i don't i don't think there's any conduct involved in part two of section one on one you have to make materially false fictitious or pride elance statement as to that as to that when you write the other isn't really the statute we're talking about so i could understand if there were conduct related where we divide between conduct and speech but it seems to me that unless i'm missing from my own when you agree that one or one that some part to which we're would first have to make terminations if this was the type of political speech that was worthy of protection i think you have to look at the relevant case law on the second fifth and sixth circuit all which has considered the issue of political speech most of the time he look at that piece in deciding that it was ok to strike down this law in that it didn't prove that the compelling state interest of keeping the fraud out from the voter voting process the court noted ask about garrison because the language in garrison kind of read it straight up would seem to support your position because they say it doesn't matter that you use it for political and if you're  doing something that is is basically a calculator falsehood you kind of fall outside of the protection but i think i heard mr mansfield say that he didn't believe in the context of an agency in this kind of a interest that the supreme court found to override the first amendment in a person's reputation is somehow greater than the interest of the federal agency that  reputation but i think if you look at it across the board i think that argument can be made and i think it's a powerful one and i think he's decided by this circuit and by the ninth circuit have in fact made that same point of the matter is although this court need not and bite no circumstances would i urge that the court go into a test and look to see if in fact under a first amendment test you need to go into into media scrutiny strict scrutiny as i said i don't believe the statutes that are content based addle record i just i don't see that argument and clearly there is wide support for passing any type of intermediate scrutiny test but even if you look at compelling interest i think i should know that there are cases that make it clear that it's a traditional exercise that the government police powers to protect the health and safety of it statements not only in these letters but statements on t v to the public in general i think if the government came in front of you and said well we would like a wire fraud case here based on what metaboli see this coming up in an environmental context for example where there's disagreement about whether something is toxic or affects the environment and somebody is petitioning the eighty eight say don't you know don't pose those restrictions this doesn't really chiro political speech or speech in terms of petitioning the government if you know that everything use of medicine of a sudden under you know the federal register becomes the blueprint for i would strongly urge that wasn't the case judged by the ask the question i believe our earlier mr mansfield about whether this would matter if it was under oath or not under oath well frankly conduct one speech which every way you look at it that merits any protection whatsoever it's a type of conduct that i believe is to be condemned it's certainly its type of conduct that is subject it's true and again we're assuming it's true but i serious adverse events because there are statements also that were made in the letters and just talked about adverse events and in that regard i think it's important for the court to note also that that adverse event is an it is a defined term in the f d a about serious adverse  and any of them causing hospitalization the less serious adverse events are headache noise etc and those are listed in our brief and they are listed in the federal register as well so they don't if you believe that it should have been critical but it's the petitioners understanding and we presented a great deal of evidence and the district court found that we did in fact show reasonable cause to believe that metabolite knowingly made false statement about this although clearly on to some of the outliers in that definition give could have been some questions with some you know let serious ones might have slipped over but that's a far cry from the facts that were presented with point response to it by this question i would respectfully disagree with what the prosecutor urged about the definition for serious adverse event reports it is there is no singular definition for it is troubled the government conceded below in its papers that there were multiple definitions for the phrase there is no regulatory definition for this industry the dietary supplement industry for the phrase adverse event reports were serious adverse actually don't know as we stand here today the current status of it but certainly there was none at the time that the challenge statements were made the last point on the definition the g a o found not just in imprecision but ambiguity in effect in the way in which this word in this phrase curious adverse event this used even with knowledgeable medical experts put aside ordinary citizens with varying degrees of education there was imprecision and room for subjective opinion technical language or terms of art in the it's imprecise they may have been your client might have chosen some other language but it was using the language of the f d a it was using words that the government used in connection with this side of the debate but the government can impose particular definitions on speakers in a political debate every citizen's entitle to infuse the words they utter with their own subjective meaning that's what free speech rights are all about and  commitment in uninhibited wide open debate that's what it is and what happens when when when prosecutors are allowed to target undefined words and launch granger investigations it has a media chilling effect on all those and they want  future if after in fact it with respect to future comment period we want citizens to respond by saying you know i respectfully declined to comment on a proposed change in the law on the grounds that it may tend to incriminate meaning and not to have the government launch specific targeted investigations of opponents which have immediate ramifications they subpoenaed all the lawyers into national law not all the lawyers but many of the lobbying lawyers for two nat