mr park good afternoon here are the names cohen clarke in here on behalf of intervener who is it jeff landry of the louisiana state attorney general the constitutional issue before this court is a weighty one and  first amendment question of considerable importance however based on this record this court ought not cannot and would not want to reach that question here in other words it doesn't merit deciding the merits a concurring opinion that we that i cited a couple of times society separationist versus hermod judge you wrote a concurring opinion that you were disturbed that the plaintiff would be without rim and in that case the damages claim was against a judicial officer that had immunity in this case if this court finds no standing as i just did it fin this court with this case would go back to the district court to determine mr seales as applied claim for which he would have standing as a damages claim not a declarative claim or an injuncti now why not this court reached the issue well the record is extraordinarily meager there are no affidavits no depositions no testimony in fact th revised statute fourteen one twenty two or public intimidation the problem is we actually don't know what happened in that house on that day according to the plaintiff you legend his complaint while he was being on lawfully seized unlawfully arrested and unlawfully pepper sprayed seals virtually objected to the deputy's conduct and promise to make lawful complaints against the deputies and about their deputies as he was physically and violently resisting lawful arrest and as all explained later i stay to louisiana's position is that the plaintiff's version of events is not covered by the statute but the defendant's motion really is and does not run across any first amendment considerations in order to in order to prove standing to raise a first amendment facial challenge and i'm quoting from this court mississippi state democratic party versus barber a plaintiff must produce evidence of an intention to engage in a course of conduct arguably affected with a constitutional interest but perscribe by statute and i as i appreciated in a footnote this court stated that it requires evidence of concrete plants to violate the statute and again this is only for facial declarations so what allegations do we have in this record about future in force a single paragraph in the plant in the plaintiff's complaint against states and says leave the statutes are unconstitutional both on their face and as applied and as it could likely be applied to seals and others at any time in the future and again the defendant oral argument in this case below he stated the district attorney has said we're not going to bring these charges at this time we have no intention to charge you with that with this and that appear court has said in judge smith an opinion offered by you last year and barbara versus bryant future injuries can provide the basis for standing but they must be certainly impending to constitute an injury in fact and allegations of possible future injury are not sufficient so what have we got mr seales states that he can still be charged until christmas eve twenty nineteen  fourteen one twenty two despite the disavowal by the district attorney and again i quote judge smith allegations of possible future injury are not sufficient that's our case on that we don't believe that he can have standing for this challenge because of the fact that the statute of limitation of what we call a prescriptive period in our fancy louisiana language has not passed yet the only other issue as far as i can tell in terms of why this plaintive believes he has standing is the fact that he was arrested but in a rest by itself does not establish that a prosecution is certainly impending and the past exposure to a direct injury only supports the action and damages and the critical case on this point is city of los angeles versus lyons which to be fair quotes o'shea versus littleton so both of them are working in tandem and it states that past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief if  companied by any continuing present adverse effects why isn't killing cognizable harm chilling is a cognizable harm judge will it however there's been no allegation of chill there's been no proof of cho you know we've dealt i've litigated cases with the bookstores challenging louisiana laws on first amendment grounds and they said if this law remains in effect we're all right down our internet library of books because we're not complying with this new louisiana law darting internet of senate that's chill your honor and we didn't argue standing in that case because there was evidence in the record affidavit concrete plans that show if this happens then we will do this and it chills the speech really when you're looking at first amendment standing chill is in action and then you have concrete plans to violate the statute that's actually you have to show one or the other in concrete plans they're going to change your course of conduct because of the statute here we don't have so yes chill is absolutely  for declaratory and jumped over me and he could show that fifteen other people or something like that had been show killed this way and it resulted in a couple of deaths and the u s supreme court said yes but you don't have any continuing present adverse effects so you don't have standing for injunctive relief and we assume mr lyons that you will conform your habits to lawful behavior in the future such that you won't have unpleasant or illegal interaction with an officer again now contrast that with a case like hill versus houston where we have a person who does the same thing on the same street corner and has been arrested five times for it and has and has there's evidence in the record he's going to do it again and he's going to get arrested for the same statute that is one way to prove it but certainly not the only way the center for individual freedom case which we case that we cited dealt with a louisiana election law that allegedly violated the first amendment and they had made plans to run certain apps and could show that they had this course of conduct but because it might run afoul of this state law suits and they had standing under this court's precedent because of their concrete plans to run out it's also want to point out george will i mean you serve on the state bench if mr seales was arrested and prosecuted for for a violation of public intimidation the louisiana state courts are open to his claim that the statute violates the first amendment and so his facial challenge would have a place have had he been prosecuted i don't think that and i'm so surprised the plaintiff hasn't responded to this case because we prosecutions and therefore don't meet the case or controversy requirement to maintain standing as to their jump to case in fact in word versus utah another tenth circuit case they specifically held in and the rest  if they relied upon it in phelps and society separation separation ists this court relied on lions to circuit case published and in the geiger case said well under lions you have no injunctive or declaratory claim and so twice this court is squarely held at lyons and that continuing adverse effect tests applies in the first amendment in the area now i see i have only three minutes left i do want to talk about the merits there are a number of exceptions to the first amendment not all speech protected this court knows speech interpol to criminal conduct is one of the cutouts where that is speech that is not protected categorically unprotected by the first amendment speech integral to criminal conduct does not mean any crime that the state chooses to pass but it is bit limited to instances such as bribery extortion true threats and here bribery and extortion figure large and i point out united states versus quinn this court's case where the expressly found extortion to fall outside of the first amendment louisiana's position is that this crime is indistinguishable from extortion and so if it covers nothing but extortion it therefore does not violate the first amendment that was the an already has a statute that criminalizes  is look if louisiana passes two overlapping statutes that doesn't present a constitutional problem yes there are statutes in louisiana that could be covered i was given a notice that my opposing counsel is going to show you a different statute that wasn't for which this man was not arrested yes there is over but that doesn't make one statute more or less constitutional in fact in the robertson case which is a haiti is case out of this court is court looks at the texas death statute and stead well texas theft is where extortion is covered and so because it's a lot like its torsion the state courts were not unreasonable in saying that this stuff statute covers non first amendment protected behavior because it's extortion the district court erred considerably when it sixty eight louisiana supreme court held that bribery requires corrupt intent and i give the definition in the brief i see that my time is running out i simply want to know that if you look at then the felton case the third in this triplicate which defines extortion that is indistinguishable from public intimidation as it has been challenges here and with that leave the rest of my time for a bottle thank you shaitaan for about mr clark but you're out of it please the court as as you can appreciate the state's main argument is about standing and frankly this is the worst and the weirdest way for standing to come to this court this is an argument raised by one an interlocutory appeal by an intervener who is given permission to intervene soley to defend the statute if then it's in defend the statute that in oppose a summary judgment at all or any of the facts underlying ending is jurisdictional is something that we need to examine regardless of how it was raised or who arranged it in fact we would raise it on our own motion if we had some sort of indication that  that's true your honor and the way you examine it in this case and i think we pointed this out there twenty a j letter is you look at the posture of the case so in this case it's based on just the allegations in the complaint there general allegations that this statute seals was arrested the statute can be applied against him and others in the future those are the kind of general allegations that this court have said on a motion to dismiss are sufficient they embrace the specific allegations the subject democratic party case all of those there was some kind of a motion there was a motion for summary judgment or cost motions for summary judgment there was a motion to dismiss a twelve b one summary lack of subject matter jurisdiction motion to dismiss which is the usual way standings addressed the plaintiff in that case the standing has been challenge gets to say i do have standing here is evidence of my standing he also gets to amend his complaint just as a matter of course within twenty one days did to put in allegations on standing in this case there's been no motion every single case the n r a case the clapper case the laird case all of the cases cited for standing by the state involve a motion for summary judgment and evidentiary hearing or a motion to dismiss something something that brings standing to the fore rather than a reply that in opposition to a summary judgment saying the judge dismissed it on the basis of standing well we have general allegations that sufficient zimmermann very the city of austin is the case we cited in our letter that cites acorn versus fowler talking about a general allegation embrace a specific allegations and if we're going to treat this as a motion to dismiss which is kind of where we are on standing those allegations are sufficient we don't have we didn't have a full blown eviden louisiana for the for the special solicitude given the first amendment standing somebody who's expected by law to to to comply with the law and not have another run in with police  that was the case in lines but in the first amendment somebody who does that is somebody who self sensis somebody who keeps is not shut down speak out on matters of public affairs and what we're dealing with in this statute is the highest kind  first amendment protected speech this is not about burning a flag it's not about heckling mourners at a funeral some of these other things that the courts have held a protected simply because the alternative is the state gets to decide what's what the docs and what's what's heretical in speech this is this is core the mount everest pinnacle of what the first amendment is all about the court held that last year it again in the turner against driver case on the right to film police and film police stations you get a right to hold government officials accountable this is goes back to the founding it goes back to the english bill of rights it goes back further than that you get a right to say the king is wrong the kings are going to doing their job incorrectly is there anything that has been alleged regarding an intention gauge in speech or conduct in the future there has your honor and i say to general it's in the record at page sixteen in the complaint paragraph thirty eight seales we allege that the statutes begun overbroad both on its face and as applied to seals in this case and as it could likely be applied to seals and others in future so that's a general allegation but it embraces the specific allegation of it's going to be applied to seals in the future he can be arrested in the future if he if he makes a complaint just thinking of just looking at the mississippi state democratic party  sure it seems to me that it's on parallel here where there was there was no expression made of an intent to engaging in future conduct or speech and that was the case on closed primaries versus open primaries again you honor that was a was on a motion for summary judgment by the defendant where there was standing was was examined in a sort of a full blown way or at least more more comprehensively than just looking at the complaint which is all you can look at in this case even the court's going to say we really need to look at standing there's been a credible challenge to standing whether this is an article three case you look at the complaint and the the president of this court is that's the general allegations are sufficient this there's been no allegation by the state or anyone that there's a disputed fact about standing about what seales is going to do or not do as a result of the statute as i say the defendants opposed the motion at all i don't know that the court could even give an address statute well i think i think what there is to take cognizance of is that the the prosecutor said we have no intention to to prosecute you at this time so to me that's more of a more of a plus factor we have the general allegations that support is subject to chill plus we have the fact that seals can still be still be prosecuted not only in the future but for this very crime just as a matter of louisiana law at the i certainly can that the da said we refused the charges and we're not going to bring about this time we don't have any presentation to bring about this doesn't mean it can't be brought in the future but again that's not all we're dealing with not mr clark the assertion that if there's no standing on a facial challenge that your client was don't have standing in on as applied challenge do you agree with that i agree with that your honor but that one of the reasons why this motion for partial  judgment is a facial challenge is to avoid a lot of those factual disputes there is it's undisputed that mr seales was arrested for supposedly violating the public intimidation statute he could have engaged in tru based on the merits and how the state characterizes this statute the biggest challenge might be pretty good if they're right because to say that this statute is is indistinguishable from extortion and that the district court erred in in basing  decision on what the statute said i think is just is just wrong that's what you do when you when you read it when you want to know what it actually means you read what the the language of the statute is and you usually don't need to go beyond that unless it's absurd it lea some absurd consequence in this case and what i would have printed out is our statute orest fourteen one twenty two uses the term threats it criminalizes threats all kinds of crap threats the benign threats that public official that criminalizes true threats and only true threats that's a more narrowly drawn statute than the statute we're dealing with the state has never conceded that this statute regulate speech based on the content of the speech and yet they at the same time say the intent is to is to regulate and attempt to influence a public official well speech that regulates based on the intent is a content based restriction a content based restriction is presumptively unconstitutional they've never rebutted that presumption they didn't try below they really try here they kind of added in a new argument that satisfy strict scrutiny but it doesn't there's there's no compelling interest that the state has ever put forward the district sort of hypothesized well i guess since we don't what public officials and school bus drivers and all these people to be to be unduly intimidated in their job but the court can't supply the interest and i can i can assume that as well but even then even if it was a compelling interest it's not narrowly tailored because it is a more narrowly tailored statute or threatening a public official that's limited to true threats and likewise i think to say that that that this statute is indistinguishable from extortion and it regulates speech that's integral to criminal conduct that's also a think a little bit silly again this is about talking about how government officials do their job and attempting to influence their job but if i say to a police officer if you violate my civil rights i'm one of i'm going to file a civil rights law suit against you that's a threat under the grammatically it's a threat covered by the statute it's it's threatening to do something that's completely lawful and the state says well that's and we think that's that's a ridiculous position what is your best recommendation hot if we agree with you is it merely just say that the district court was never about it as to standing the complaint the general allegations of the complaint alleged standing it there was going to be a further inquiry into standing in an evidentiary hearing the defendant or maybe the state in this case would have to file a motion  o do something to provoke that so we have general allegations of standing that the court recognized the court or a lot in part i believe it was on judge this opinion in the carmouche case the center for individual lives where the that the regulation to be want to make sure i understand your remedy response to john wayne or are you saying that if we agree with you not the statute is overbroad yes on the remedy would be to strike the statute as a home strike the threats part of the statute or something else i think to strike the statute as a whole is being is being overbroad the district court found that it was overbroad in so far as it it addressed threats that aren't true threats but i think the federal courts remedy is to is to say the statute is overbroad in its entirety or certainly we don't we don't say that there's anything wrong with with regulating violence might be a stupid thing to say but it's not really a threat but there's any number of threats like that and that's the statements to say well if it's confined to two two in tempting to obtain something from a state official that you're not entitled to as a matter of right well what is that something in a mandamus on the very few things that i'm entitled to them i can demand as a matter of right from a politician or police officer  have a you have a right to all these other things i guess i have a right to a to a marriage license to marry a man or a woman and maybe i can sue for a mandamus but if i if the threat is give me the to the county clerk give me the marriage license or else it is well under this statute that's a felony so i've certainly anything that i'm entitled to as a matter right is nothing within the discretionary function of any of the state actors and to read that into the statute like the district court said it is to find requires the specific intent to influence the state actor in his job how he does is shot that's core first amendment activity do your job the way i say do your job i don't agree with the way you're doing your job governor representative a police officer a school bus driver you should do it the way i said they can listen to me or not listen to me but it's hardly criminal and it's not inherently criminal to say that so w yes your honor justice oliver wendell holmes wrote the exclusive authority to enact laws carries with it the final authority to say what they mean therefore the louisiana supreme court has exclusive authority to determine the reach of this statute if this court does not understand what a threat is for example what constitutes a threat whether louisiana supreme court has never spoken on that precise issue or he said we have power to define threat to mean only violent threats and saying this court doesn't have a power to define the word threat at all in this statute i asked this court to certify the question to the state supreme court but i would can i mean if you want my column clerks opinion it's a threat to file a civil suit or things like that don't qualify as threats under the statute but again we're pretty far afield of the facts in this case to the extent we even know what they are not satisfied the actual mind which of the statute i'm sorry may have your hypothetical again no i mean i just don't know how but detect if you look at black's law dictionary the textbook definition of extort or extortion requires illegal what about correct how does blacks define threat  saying that in the reporter's comment in the company which is not the law but the reporters who wrote the statute in the comment stated that it covers threats of violence as well as threats to character and i think that what they meant if i would argue before the state supreme court is that they meant defamation or other unprotected conduct the louisiana supreme court hasn't had an opportunity to to really give this statute any breadth or length since one thousand nine hundred fifty nine before i mean at that point you plain ski was basically the state of the law and so to then rule on this statute without giving the louisiana supreme court knopper to need to construe it as it has the right to do i think disparages federalism the injunction order in this case says that they filed a motion for partial summary judgment so why we're talking about motions to dismiss in twelve pieces is beyond me the general allegations do not embrace the specific facts necessary to support the claim in this case because this was not filed as a twelve b six or a motion to dismiss and i quote this is from our response to the twenty june letter when the defendant moves for summary judgment because of lack of standing however the plaintiff must submit affidavits and comparable evidence to that indicate that a genuine issue of fact exists on the standing issues so i we really do not get beyond standing in this case the defendant did not stipulate to any of the facts they allege the statement regarding undisputed facts as to the partial motion for summary judgment does not discuss anything relevant to what happened during the arrest so all we have is this allegation that's likely to be applied to seals or others in the future how what's the plan what's it going to do and i hear again and again that he says that there's a presumption of unconstitutionality because this is strict scrutiny now the district court did mention strict scrutiny and we've said that this is not strictly true but the court ruled on over breath and an overbroad claim there is no presumption of unconstitutionality in an overbroad claim which is a variant of the first amendment which deals with third party standing the mover has the burden of proof not to respond i think judge smith you hit the nail on the head to mississippi state democratic party controls this case in that case this court said although a plaintiff need not expose himself to actual arrest or prosecution in order to challenge a statute for infringing constitutional rights the plaintiffs must be seriously interested in disobeying the statute that serious interest is expressed through evidence and allegations that are stipulated none of that is here and while there are interesting constitutional questions for which this court might choose to certify none of that is necessary because it's quick reversal and standing is all that is required and thank you for your time or thank you mr clarke your cation all of today's cases are under submission