the morning and may please the court this case is striking because citylink excluded women's health links had from its forum about and the ad was about health care because not what it said but the and it's not offensive if the problem is they don't like the organization women's health link and what it stands for another organization with different goals would have been able to run the ad and of course this runs directly into the supreme court's ruling in rosenberg or so that says that speech can't be excluded even from a nonpublic forum if the motivating ideology of the speaker is the problem and of course this  court confirmed that in the de boer case saying that if you exclude a speaker because of the bleep survive he is of the speaker that his viewpoint discriminatory and is violating of the first amendment in spa their heirs in the bus or on the bus that similarly are airds innocuous on their face but maybe there are people who dislike organization or if they knew about the organization they would find it was offensive and i noticed for example one of the answers for something called a lutheran hospital right as for the lutheran hospitals the health care ad in addresses the health care health the topic of health care which is certainly allowed in forum i think for instance the one that comes immediately to mind is the crime stoppers that if you so there are some and of course united way allen county if you go to their website they actually have some ads not so mad scuse me but have some advocacy for adoption of particular statutes regarding early child learning clearly political activity that some people would disagree with but on the face of its ad it's completely innocuous and fun and of course narcotics anonymous is a faith based treatment information in their ads actually a statement that about religion it was it was an attorney who was advertising his particular services and he said that david's disability group and he says the true test of christian character is how we treat people now that's not a public service announcement but this court held in indoor i believe it was that when you're comparing the commercial versus p s a's for every point discriminate torrie purposes it doesn't matter more importantly that indicates how unreasonable this restriction is this restriction on political religious and moral advertisements only applies to p s a and if if if  link is really concerned about offending observers they would make that apply to all ads on the buses and it simply doesn't what the primary argument that they make is that this case is like choose life versus white depriving argument that sibling makes at this stage in litigation is that this cases like choose like versus white they've excluded the topic of abortion and that case doesn't apply here for numerous reasons i think first of all the website even mention abortion or advocate for or against abortion in any way but secondly the city link has said that if you talk about abortion that's ok the topic isn't completely proscribed like it and white is long as you do it from a viewpoint neutral fashion and of course that requirement in and of itself is viewpoint discriminatory under this court's holding in de boer and of course the prohibition on abortion that they are now arguing isn't even in the policy in fact they didn't even begin arguing that that it applied in that of abortion was excluded until the summary judgment stage of this case so it was i think the third reason focusing on is whether or not the same general subject matter is allowed in the forum and as this as this court articulated the analysis in airline pilots and clearly it is whether you look at the topic of health care whether you talk about vulnerable member members of the community is as a judge sykes pointed out narcotics anonymous was allowed to advertise about health care and of course that's religious based in and of itself counselor so yes let me ask you you mentioned that the a bore you know abortion services are not even mentioned in the website for the organization doesn't the website indicate that the organization promotes life affirming health care services it does and what does that mean well it certainly means that it is a is a organization that has a pro life point of view there's no question about that we don't run away from that however that's not advocating for or against abortion in any way and that is only mentioned three times on the website it's not a prominent part of the policies of city link to prohibit material that's political moral or religious as long as it is viewpoint neutral in other words it would be certainly an issue if city leaders that allowed advertising in it based on counting are by organizations that had a  choice viewpoint and not a life affirming you point but to the extent that they would exclude all advertising on the subject matter or with the viewpoint of the focus of abortion permissible well i think though how is that not how is that viewpoint discriminatory well it's viewpoint discriminatory because just as the supreme court held in rosenberger excluding all viewpoints on a particular topic religion or religion as a topic but religion is also a viewpoint but if i can rosenberger the opinion indicates that the guideline in question violates the principles governing speech in a limited  the form you have to start the analysis don't you agree with it what with the form is it there is a difference between public limited public data designated public and nonpublic form in terms of what in terms of the analysis and what's permissible  well respect for your honor there is no difference between the nonpublic and the limited to the public for the test is the same viewpoint discrimination is not allowed and the restriction must be reasonable for both of those it is different for designated and for a traditional public forum but we're saying that even if this is a non public forum and we think there's some evidence that it's does it maybe but even if it's a nonpublic for you cannot discriminate based upon viewpoint and excluding a topic just begins the analysis as this court said an airline pilot's even if you exclude the topic of politics that only begins the analysis of whether there was viewpoint discrimination and here we have you point discrimination because even if they exclude pro life or pro choice views or require you to them that's viewpoint discriminatory because they're not they're there each topic has multi levels of views views aren't just bilateral as a supreme court pointed out in rosenberg and they've what they've said essentially is if you take an agnostic view on abortion which is a view then you're permitted to talk about it here and of course it's important to note that that they haven't excluded the topic of abortion  completely and that's what that's why this case said they have not they have not you can talk about it as you as long as you do it in a viewpoint neutral way or include all views but that in and of itself is viewpoint discrimination we have ants and with that content are a  finally i'd just like to point out that there is not reasonable to include this it not only fails a few points commission part of the test but also it's not reasonable not only because we don't mention abortion but because they allow other organizations to talk about political and religious things and if those are if there's a concern about captive audience they should say that not only p s a spec any commercial advertiser should be able to talk about these things and then finally unbridled discretion that is involved here is this incredibly wide they don't define political religious or moral even though those topics are purported to be excluded and this policy says that they can modify the policy as it deems necessary as citylink deems necessary don't the policies also provide for an appeal they do and in this case your clients did not seek an appeal did not seek an appeal it's not required you i but when you agree that an appeal is a check on just what is is is a check on this unbridled discretion that you describe in other words if not unbridled discretion there is an opportunity to appeal to it to it to a different committee it's  different committee but in the past they've came to the some the same conclusion for instance the adoption support center was denied it appealed even though it was a commercial speech and they said no you can't do it because it's controversy and of course that's one of the things that they that they're  talking about that the check on the what you called and right of discretion that was a check on discretion it is it is a check but it's not it's not sufficient because they've been able to since then to for instance in this case add modify the policy to include viewpoint neutral requirement not in the policy an abortion prohibition not in the policy and a prohibition on controversy all of these things allow them to adjust the policy as they like to engage in few point discrimination subject to the right to  subject to the rights of the people but you know if their right to appeal is futile as it indicates as the record indicates that it would be in this how would we know it's futile if you didn't try well we know it's futile because the adoption support center which didn't mention abortion either what appealed and their a good morning may please the court this case boils down to one very simple question is it reasonable on the part of city link to misdirect from ads within its buses any ads on the topic which shows the girl and you know women's health it does not contain any reference direct or indirect to abortion that is correct but what you are what you are doing you going behind the advertisement to what you know about the advertisers but you don't do it in any other case there is no evidence that we have not done that in any other well look at all the look look at all the  advertisement you look through the books of the various lines there are obviously questionable aunts now what is the lutheran house spittal for example does the lutheran hospital have religion you know because i have represented the hospital in the past it's a privately owned hospital it's not owned by the lutheran church why isn't it all the way my hospital because it was at one time part of the lutheran church but it was sold to a private organization so the there for that that all the advertisement of busses you were someone of the city or what have you has satisfied itself has investigated the company the enterprise the what have you that placed the head and you have verified that there is no you know improper controversial material in this in this enterprise in this company that united way there's nothing you could find in united way that would offend anybody disability unit or whatever it is which according to mr theri it advertises its christian character you've investigated that and you found there's nothing controversial about about having about mentioning its christian character well this had the women's health and had wasn't rejected because it was from a religious organization it was rejected because the ad as well as when you look at material the inverse mint contains prefer profane language it doesn't say anything about the enterprise that has placed the advertisement the advertiser as opposed to the advertisement  provision that when the identity of the advertiser is unclear that that city link may look to the website the number of raised by a dennehy unclear there's nothing unclear about health links that is the advertiser when you look at in the context of how this ad was initially placed it is unclear does the city investigate every advertisers when the identity of the advertiser is unclear it has the right to investigate what i mean it definitely the advertiser there's nothing unclear about it's a yes or an estimate when they haven't so initially submitted it was submitted by becky ragna us who's the communications manager at elon county right to life in the email that concluded that advertisement included the allen county right to life email address their website but this is right you're doing their address look this is what you have done for health claims but as far as we know if for nothing else you have gone behind the and to the enterprise to see whether there's anything offensive in it but your regulation your policy just talks about the advertisement cit doesn't talk about the advertiser well in addition to our policy that allows us to investigate website when the identity of the advertisers unclear we look for case law from this circuit as to whether or not it is permissible there's only unclear about the advertiser health likes it gives you a website and a phone number you know what it is there is no unclarity there when it was submitted the second time it was submitted by julie perkins with allen with our women's health link but it used the same address and phone numbers allen county right like this is all and it mission to a fairly obvious case the point discrimination you're rejecting the ad which has nothing to do with abortion on the basis of the viewpoint of because going to be unclear to you that that's the advertised says on the advertisement health link because it was submitted to us by allen county right well that's well actually it's going to be submitted by somebody by a person you had that that is the advertisement that is the advertisement some clerk who calls up and says i'd like to place and then you investigate that person the identity of to be disregarded if you look at all the other if you look at all your other sin the bias there all the while they don't ever a den of some individual who hauled  said we want an end to the advertiser is the entity the healthy indiana plan or goshen saves lives organization or consumer credit counseling service is involved in that all these conflicts and they look to the website to determine whether or not this wasn't what i was in a town of the city here it was the suburban mobility authority it was in the detroit region let me see if i can tell you exactly specific policy that allowed them to go beyond the four corners of the advertisement itself but the sixth circuit said to fully understand the purpose of the ad we may look beyond the four corners of the ad to the website that's incorporated in that advertisement but i mean they understood the purpose of the and from just looking at the end to it substantiate our understanding of the apparent message at the end ok but there's no apparent message in health links an ad that that has anything to do with  it just says women's health care let's use an analogy let's suppose if someone wanted to post an ad that said defend our children and there's a website underneath it you go to the website and it's an organization that supposed to tranship gender bathrooms i can you say that that is not an ad dealing with a political issue because it doesn't use that term in the ad of course not i'm just talking about what your own policy says which is about the extremely this and you will discover that there are a great many controversial companies that have perfectly innocuous and is supposed to have an ad for exxon or from o b l you innocuous right but there's nothing in your policy which suggests that you go behind the head to the advertisers to find out if there's anything controversial about the advertise for example one of your bus provision on our policy simply because it's a commercially i don't know because you haven't looked maybe this law firm you know is is highly controversial maybe it's constantly being disciplined right but you don't look you just picked on the one that you knew that you that you knew it was a child with a porsche or opposition to bush if this had been a ad by planned parenthood was advocating a position on pro choice we would have excluded the f s a or speak because everyone knows what planned parenthood stands for you see that in the ad the ad contains material namely planned parenthood that that is controversial but the term health ling's this is not controversial but when you look at the website because i don't know but you don't look at the web site of all your ads you don't investigate all the answer in the buses right to life and we the identity of the advertiser was unclear to us i know you disagree with that but that's why we looked at the website because it wasn't clear who the identity of the ever ties are was we don't investigate every ad you're right but in you have some i think private universities private colleges advertise in the bus there was one there was one on one of those but private college yes well do you investigate you know private colleges  profit colleges very very controversial and considered a racket by many so did you investigate to see whether this college was one of those where it was obvious that the ad was not advocating a position on a religious morrisey ad and this and does not for health claims the ad does not advocate anything you have to go behind the ear yes now given the bad reputation of for profit colleges you'd think when you see an ad for a for profit college you say we have to investigate to see was is a reputable college but you don't do that it's not in our policy to determine whether nothing is in your policy about the advertising it's all about the contents of the infers that the web site the you know the url and that phone number on the how on the health link add these are not  these are not part of the care there is something you go to to find out about the company just as you with a private with the for profit college to be a phone number in the ad so you can find out more about know we don't investigate and say well maybe it is what it is a racket you know we have an obligation to strictly enforce our policy what if we allow this sad but your policy i don't understand  read can't you the your policy says the advertisement contains material not the advertiser you know it's it's doing something right if we allowed this  draw the line best the problem we don't want to be charged we don't write laws of crime is to look and see whether the advertisement itself is offense we did not do that whether the company or whatever enterprise has sponsored the advertisement does things that some of the bus riders reflectors on the bus will be at the store by this ad was not rejected because it was offensive it was rejected because it was educating a position i just like to speak quickly to the six circuit case that my colleague was referencing and i think the difference is in the face of that ad it was clearly violet to of the policy prohibiting political speech as mere fact the name of the organization was refuge from his long dot com and it said fuck was a refuge refuge from islam dot com and so there were messages on the ad itself that indicated hey we ought to look into this a little bit further and i got why is a religious term sure it is it's a religious term and there was you know the face of the ad was arguably anti religious that's the reason why oh fuck a fatwa isn't yet always the name of the organization the name of the organization was refuge from islam dot com so so both of those were in there and and so that justified going to look at the website however as your honor what is a thought wasn't like a death sentence i think it's a proclamation from islamic clergy regarding a certain issue and in a fatwa can be issued against a certain individual for instance somebody who's anti islam so i think that's that there is certainly some religious overtones there and i think your honor pointed to the real issue is the policy doesn't allow it to go beyond the ad unless there is some uncertainty and they have to have guidelines to make sure that their discretion is isn't unbridled and they can just investigate people they don't like and and that's what's at bottom here is they didn't like women's health link and what it stands for and so they disallowed to get in unless the court has any and for the questions i would thank you for being there thank you thank you to both counsel