at issue in this case it's unclear whether they're own by the government the federal government or local property and to answer to question so mr askings was standing across the road in calexico in the united states right next to where he was standing there was a public park a state park i believe and i just arrived as being a street and intersection of a public street what does that mean you need people just walk around the street honor there's a store front so there's a strip of pavement there's a small curb and there's another strip of pavement those are streets that cars can drive on there's also a sidewalk that curves around a green area that's a park and he was standing just off the sidewalk in the street and the people who are driving on this road or they'd having anything to do with the border are not necessarily the road in question runs east to west entirely on the united states side of anything that would indicate that you were standing in on c b p property no your honor and that's part of the problem here as as this court's precedents have have said over and over again the expectation that one has a first amendment right to engage in speech in traditional public forums in areas that are public access a bill for speech to be restricted in those areas that expectation the government has to take clear steps to make clear to people that they can no longer engage in that kind of activity that's what venetian had seen no said and here there were there is nothing that would indicate to a person who has not had to cross any border or interact at all with the federal government in calexico for example that he or she is on port property while trying to take a photograph i recognized government well several this was all done in motion just miss that is correct your honor government is claiming the security interests essentially yes your honor although the only interest that the district court assessed and only end dismissing our regional not the amended complaint was an interest in territorial sovereignty  which was not an interest that the government actually put forward in any of its briefs but also you represent i don't know what the complaint says that it isn't even clear this is federal territory  ownership sense yes you know what is the complaint say about that the complaints the complaint says that the areas where our clients stood and to which they would like to continue in which they would like to continue to engage in the protected speech are considered by the defendants to be port property such that the defendants have applied the challenge policies to our client but there is no allegation as to ownership as such that to some of the twenty eight day letters there are cases where it may be proper to dismiss a complaint on a motion to dismiss for failure to state a claim because there are certain contexts in which the first amendment right is either there's no such they essentially assigned a motive or reason to the government some of the was in the complaint actually there were at least that the government was claiming that interest it was a it was a cough an immediate issue that there are deciding you know what the merits of the constitution that's exactly right your honor and that's not what's at issue here this is not a damages action and importantly if we can agree that there are interests in such concepts as border security and national security i don't think anyone can stand before anybody and say that that's not true the question really is the tailoring question and this court has said time and again even in nonpublic farms that's what the jacob case that came down this week establishes even on a summary judgment motion even in a non potentially nonpublic forum the government bears the burden of putting forth evidence that the interest that is asserted is actually being furthered by the restriction on speech and in this instance you know claim that he can stand there and see what he saw that's correct your honor and weak and if this is a very important and this is why i think the government citations to the right of access line of doctrine is inappropriate this is not about the right to enter into restricted areas that and take whatever photographs you want and in fact you know one of the questions that you may be wondering is what would a reasonable time place manner of restriction look like in this context there is one in the record at  hundred four paragraph nine of the media policy so one of the two pieces of the challenge policies very clearly says that people can't stand over the shoulder of a c b p agent or officer and photograph screens or photograph interviews and and we acknowledge that we did but that's a that's that's a very very different policy this is a policy when somebody has come in and said we're would like to do a feature on immigration and we can we command and applied much by because nobody's ever going to get nobody's ever going to get close of course not and orators and nor should they and but the right of access cases sort of are misleading because they're really about these enclosed spaces where the government has a right to restrict access to information over which the government properly has complete control and here because based on the pleadings of the the amended complaint which is of course operative at this point all reasonable inferences in our favor everything that we're talking about is visible out of doors and so there are a lot of questions that need to be answered my government has to bear its burden it seems to me you've got there are a lot of open questions about here you were asking is was it seems to me if there's fewer about r anybody get to that bridge who is not in the process of cross absolutely you do not have to be crossing the border whatsoever to be on that bridge now let me just be very clear the bridge that was no longer there it's not there so what i'm going to couldn't so the transit plaza is basically a cul de sac it's out of doors it's not a building and it's effectively a bus stop and a trolley stop and those buses are trying to just going in the city that they only run north of the border into san diego diego so i'm sure there are people who take the transit to cross the border you disembark you can also go start their own cow someplace and it's not absolutely and the bridge in question it's actually there's a sign on the bridge that says pedestrian footpath to outlet mall the outlet mall is to the east and it is one hundred percent inside the united states of america you don't have to cross the desk is that is the mall owned by c p b is that owned by g s a not as far as i can tell but so and is this true of the old bridge the one that was taken down that is my understanding your honor because when they were in a place they were in a place on a bridge or although they had come across the border they were in a place where other people not crossing the border could have easily that's exactly right and not only that people could have but that people routinely do because this bridge function that it serves is an is a pedestrian overpass over i five where i five points at the border is there any place in either of these two places where you areas no not at all however there are signs that the government has put up on sidewalks including on this elevated pathway which they claim is enough to sort of remove they say i'm sorry one of the signs well the indication that there are signs yes absolutely but and part of the problem is the configuration of this area continues to be under construction and so we have tried to put forward the most current facts but the but when i asked you whether you could tell that this was proper they claim the answer is yes or no because there's no sign right there well i suppose it depends on the specific place in question so in calexico where mr askings was standing there's no sign so i don't know how anyone would know that they're not just on a public sidewalk with the elevated footpath that crosses i five and connects the transit plaza with the outlet mall on the u s side in the in the colder sac part where the transit there's a sign there's no sign to my knowledge on the other end of that footpath if you were to get on the bridge from the outlet mall so how would you know somebody is not this transfer plaza where people are just going all over the place and want to take a picture of their friend they only that there are agents all of the actual inspection all of the actual interaction is indoors so you can see armed agents but you can't see what we're here is could see you could see people yes now on that bridge there you overlooking like i said where i five ends at the us mexico border and you can see agents inspecting vehicles in primary not secondary inspection and you can also see agents patting down pedestrians and so that's where he saw that the agents the officers in question male officer it's possible the government might have some concern about about the privacy interest of people who are passing through the border if you can if somebody can stand on the bridge and take a photograph i'm not sure what privacy interest the public has in information that's held out to the public people are passing through a public space their identities are known and in fact there are signs throughout the area that indicate that everyone's under surveillance so i'm not sure what i remain confused about that particular interest i may add like to reserve the balance of my time unlicensed i mean they didn't in the case can go in several directions once it goes on but they're there contesting the fact that you're the government is saying they can't take photos at all on this think it permission with no ask ins the government's got a tough got a tough burden here to show that they've got an interesting guy standing in the middle of a public street taking a picture of a building so i think it's important to look at what is in the complaint as opposed to some of the representation that council has made here and so all kind of stuff i mean this was it was this was dismissed by the district court with out getting any way without anybody even being able to submit a map so there is no allegation in the complaint that there was any confusion sorry what the plaintiffs have amended at one time and they have still failed to make some of these allegations and what have they failed to stay well i don't think there's any allegation in the complaint that there was uncertainty that this property was part of the port of entry now to be sure they assert that it is a public forum but i don't think there's anything there that this was  and if it's true then you have a situation where the government is trying to stop people from photographing on property when whenever it's official status is functioning as a part of the city of san diego for people with nothing to do with the bord r the same thing was true in the supreme court's decision in spock there we had public roads that traversed the military there you this was a military base you knew you were entering a military base you had been granted access for limited purposes signs well we know that there are signs in at least some areas because the plaintiffs have alleged that they haven't made any allegations and we can figure out whether we've got a sign that telling you when you entered the port of entry and where and what where the line of of why he was there on their own at least alleged at least ask and ask him is has at least alleged that this was a public forum so even if it even if it sort of implicitly concedes ownership by the government it still suggests that it's just a public street even if it's own by the port of entry or g s a or whoever they have made that kind of legal assertion that yes it is a public forum and do we have enough facts to be able to decide that question here well i don't think we have you know warning us some restrictions may apply that would it would have told them if it's ten feet back on the grass that it would be ok to take the pictures but he could do it where he was doing so we just don't know because the plaintiffs have an o have said that why don't we least allege that it's a public forum so what they came to do here was take photographs and letter asking when to the area for this purpose to take photographs of the secondary inspection process of that area which is one of the most sensitive areas of the facility and if he was standing two feet back on the park property he could do that yes but it's not clear that he could see exactly the same thing from there that the angle would be exactly the same the district why don't we figure this out well i mean he could have made that allegation in the complaint all that the complaint says is that the exterior of a building was visible from the park not that the specific part of the secondary inspection area was visible and several courts including the supreme court have repeatedly rejected the argument that the first amendment contains a right to go on to a view a horse roundup that this isn't really a forum case because what is sought is information it's not seeking a kind of dialogue that would implicate form analysis so to hear what the plaintiff seek is just information about how these government operations work now they're not getting the information as i understand it they're saying we can stand here and we can gather the information in our hands no one stopping us from doing that what you're stopping us from doing is recording what we can see and what i did my enough information it's a question of essentially creating  a communication for other people and there's myriad of cases saying that in the context of watching the police or watching government officials from if you could otherwise be there and and and  and watch them you can take pictures of them so that two things if i may one with respect to locations where people have a constitutionally guaranteed right of access they do not have a constitutionally guaranteed right to take photographs such  even when you have a right to be someplace there is not necessarily a first amendment or not at all a first amendment right to take   sensitive some national security operations are happening that it is entirely reasonable that the government would take action to prevent the dissemination of information about its most sensitive operations  later responses will be tempered by concerns for ongoing investigations sensitive foreign activities operational factors detection targeting so selectively factors techniques and capabilities exchange of intelligence and investigations no that's correct but in this type of when we're dealing with a kind of highly regulated government facility selective access and bags are subject to search at any time when we think of other places where those types of policies apply airports for example courtrooms other government buildings those are not applicable principles are different for several reasons one is the claim in jacobson was not just seeking photography there were there were issues of kind of physical access and specifically  more like a dialogue then we have a different type of analysis the traditional form analysis levy cells arts and this is more about gaining information about a government operation so we look at the right of access cases and the right of access doesn't involve a right to photograph other differences from jacobson we had different allegations one about inconsistent application of the policy i understand l salazar was it was the rule that you anybody can come here and look at this question around up no i think that was part of what there was an access question because of the government role there was you can come here that's correct but at least for me ownership is still very much in question it doesn't it doesn't tell us what i want to do i mean you know washington d c is a federal enclave but you get to walk up and down the streets and take photos of government buildings all the time yes from places that are not going to and so one reason why this is a little different that the plaintiffs have pointed to is that some of this happens in outdoor spaces but by necessity these government operations happen in outdoor spaces like council i mean you look you've got you've got river spock running completely in your favor if you had this off and and said you know you consent to these these  the terms this is not restricted area drive drive through common park go to mcdonald's go to jack in the box shop within this area but watch no it's a it's a restricted and controlled area and certain restrictions apply w and on the other side was not the court didn't point to any kind of signs or manned gate or anything else and so i don't think that is necessary in career there was a gate but it wasn't manned and there were signs a limiting activities the supreme court looked at the purpose of the facility and whether the government had abandoned the right to  so i apologize i don't know all of those details but my understanding is that there was a road connecting the kind of main highway that led up to the main part of the facility and there was a special parking and demonstration area and the agency there had said department of energy i suppose had said that demonstrations were limited to this demonstration area and the plant just there did not want to be ok but you had what you would actually had an area there that was that's not marked at all well i guess we don't know whether it was marked or should we figure that out council just tell me you don't don't we don't know that i agree with you we don't know that shouldn't we figure that out also at a minimum we know we would be able to make a much more refined argument i think that's true but i wanted to know why there is some set of facts consistent with the complaint that would seem to say this is a public forum and you do have a there's any there's no just again i don't think the plaintiffs have alleged that they were not actually on the port of entry they're just saying that part of the port of entry is a public forum and even if the court were a little unsure about  i'm sorry i misunderstood that no because what we do know as i said before is that the government is applying these policies to these areas whether these areas are properly but i see anything in the complaint that actually called that in question i don't see anything in your in as clear as you would like but if you look at the excerpts of record at seventy four it's important to note that what my client mr haskins did was he sought permission and when he didn't get a response because he was on a deadline he said he left a voicemail that said that he would take the photos that he was interested in from off property basically and i could make that clear he might have been might have been in the park i mean when i was talking with him on the phone he says oh don't bother i'll just amended complaint that's in the excerpts of record seventy four to respond to counsel's point that we are seeking an unfettered right to photograph that's actually explicitly contradicted by the complaint itself if you look at paragraph twenty of the excerpts sixty nine were very clear about the kind of photo photography that's at issue in this case the i think that on at this stage on a complaint all that is required are these plausible allegations both regarding the form status of the particular places in question but also regarding that the that there was a first amendment violation i think this court has held time and time and time again even in cases involving nonpublic forums where the standard is lower scrutiny that it is the government's burden to put forward evidence to justify restrictions on speech and that is because as this court recognized in  as the on bank opinion of two thousand and eleven the speech restrictions are supposed to be the last resort not the first resort and so we think you know i don't want to believe or any point i think that the issue here is there may very well be a compelling or significant government interest there may be information that would allow us and the court to assess whether that interest is furthered by the restrictions here in question none of that is before the court it can't be because the government bears the burden and all we have are our amended complaint and so given that there are no facts before the court given the holdings in summer tano in caltrans in jacobson it's all the more important that the government come forward with the information necessary to help us clarify what the boundaries of these places are even the signs you're on or even even though there are some signs in the sand a secret called the sac area because it's a plaza that involves a lot of movement that doesn't necessarily have anything to do with the port crossing it's not actually clear where those restrictions on photography apply and as i said although there may be a sign on one side of this elevated sidewalk there isn't on the other and how would someone know if they started walking on that end and came over on this and that along the way they weren't supposed to take photographs there are all kinds of questions like that that we submit are improperly decided at this juncture in a dismissal with prejudice of an amended complaint and so we ask  very much and the case of skins versus u s department of homeland security will be submitted i mean will take a