ok i think we're ready to person thank you may please the court counsel my name is peter marshall roe and i represent the appellate school district in this case with the five minutes for rebuttal your honors we believe the key to this case is the government speech doctrine but even if a form analysis applies we believe the result should have been the same which is the granting of the district's motion for summary judge castle i'd like to ask you a sort of a thirty thousand foot level question about how we should go about analyzing this case and for this purpose of this question i want you to assume that the r b does not have exclusive jurisdiction shouldn't we mean excuse me looking at the state constitutional claim first i mean that is the typical way as soon as you're well aware in oregon at least as to how decisionmaking is done you look first to the state constitution and if it doesn't protect the right only then do you look at the federal constitution why wouldn't we follow that construct while we perhaps never reach the first amendment question we have for more than happy to follow that construct your honor i don't have a negative answer to your question but i would believe that at least the briefing that has been done before you have certainly focused for the most part on the federal constitutional claims we have also briefed the state claims we do believe the claims under the oregon constitution are preempted by the administrative tribunal which is plate case much like walker much like the arizona case i'll talk about in a moment the organ supreme court upheld the authority of d m v to reject a proposed specialty plate ad we believe your honor had the walker case in the suman case been decided by the time the organ supreme court looked at that case in two thousand and three they would have based their analysis on the government speech doctrine or the factors used in those cases i don't understand how you could view this what happened here as being the government speech these were private individuals who sought to speak in a public place but i don't understand how any observer would consider the back and forth about union side management side as being government spe remember this was not a public forum what we're talking about here his school district property only this is a non public forum right but for it to be government speech a reasonable server would have to think that it's the government speaking regardless of the nature of the forum and i guess what i'm having trouble with is seeing how the statements of individual members of the union are supporters of the union would be seen by a reasonable observer as the government's speech this is our response that a hero and that's one of the three walker factors that the supreme court set out in determining government speech namely is there an identity in the eyes of the public public speaker in the forum and our argument is that for the constituency in eagle point the taxpayers if you will the patrons of that school district when they see striking teachers with banners or horns placards on district campus as opposed to on the sidewalks where they were blocking ingress and egress he chris there is an identity and it assumption we believe that one could infer that the school district has allowed in the middle of the collective bargaining process in dealing with the strikers the teachers to come onto the property and display their messages which according to oregon law when a strike is involved or to induce and core works changes in conditions of employment so that the speech that you're saying might be interpreted by the public as being government speech is not the message being conveyed by the striker's mean nobody would believe that the school district is supporting the strikers in its strike against the school district so are you with me so far yes so now it's it's that the school district somehow by allawi a differing viewpoint has done what other than recognize the first amendment what government speech is represented by a policy that lets opposing views be stated the speech your honor in this one of the three factors of walker is the recognition by those in the public that the school district has allowed during the school day while they're trying to conduct classes the striking teachers to be on campus and thereby are condoning by not excluding them from campus the messages they're trying to that but so you're saying this condoning this recognizing that there may be contrary views and permitting them to be expressed that becomes speech itself that suggests to me that if if the white house decides we're sick and tired of these protests against our travel bans we're going to outlaw any such demonstration on government property and that itself is government speech that makes our prohibit ssion of a contr  view effective how could that possibly be correct while we give me any authority at all to support that proposition i have no authority other than the argument i just offered an amendment then let's break it down how is allowing a contrary view point to be expressed itself government speech your honor all i can respond to you with this this statement this is one of the three walker factors and of the three water factors in this case not the most compelling we do believe there is an argument that in the middle of a strike when you have the teachers on the public sidewalk surrounding these campuses that if the school district were to say it's ok in this collective bargaining dynamic your premises of the school district has the right to say anything else the point of this case is that the school district does not have that authority so i don't understand how adopting the label government speech doctrine would give the school district more power than it would otherwise have let's look at the other two factors and walker one is the history of this district in terms of allowing public access to this campus there is no evidence in this record that this district has ever allowed demonstrations protests but there is evidence of of rules adopted immediately before the strike and rescinded immediately after this strike yes it's hard not to say that he the strike might have had something to do with those rules the strike did have something to do that had everything to do with the rules there are so how can because one of the things that that public forum analysis requires is that it be exercised in a viewpoint neutral manner what was neutral about a set of rules specifically adopted in anticipation and rescinded following the termination of the strike in the middle of a collective bargaining process and a strike this is the employer on whose property the teachers wanted to bring their placards their bullhorns and their s we believe your honor the district had it right under state law given the fact its primary mission is to educate the students to conduct classes during the day without interference from strikers in the who had kids in the school to meet in connection with their kids being in the school this was very much aimed at the teachers that were striking and prevented them from doing things other parents could do no parents could come on to the campus and give a the school districts position they're covered by the same policy or covered by the same policy and the fact the matter is your honor the speech that we believe is the most important speech that qualifies under the government speech doctrine here is the statement the school district made that it's going to keep the schools open during the strike and i asked the union president this is he our three twenty seven three twenty eight how close to those buildings did you want to get values in play and in his words this is here are thirty three he said what a fantastic opportunity this would be have the school children on campus observe the bill of rights in practice nobody disputes that the bill of rights sanctions and a louse expressive conduct but the strikers were not advocating for the bill of rights the strikers are advocating as allowed under oregon law to induce  course the employer to change the conditions of employment and the students as far as the bill of rights experience goes to go down to the sidewalk and see this expressive conduct coming and going into the school grounds your honor there has not been a single case cited by any of us in this matter that they in which a court has not allowed the school district to exclude education association claim under the under the oregon constitution the result would be no different that in isolated incident of restraining a student's speech on the way into campus would restrictions that were enacted as the school district freely admits including at this argument either reacted to stifle speech that might dilute denounce or contradict the district position in a labor dispute with the user what is your response to my question about where we start our analysis why more shouldn't we started with the state constitutional claim first and if that supports the judgment why would we stop there without reaching without needing to reach any federal constitutional claims well your honor i i do agree that the case is much easier under the oregon constitution as a former state court judge and i'm sure you know that it's protections are much more expansive but i don't think that the entire judgment can be affirmed under the organs of a student working a student may be in a different position i would think the other issue is that all of the plaintiffs were awarded a nominal damages which is a form of relief that is not available under the oregon constitution and so on so there are claims for relief that rely only on the first amendment and also there is a three vendor under under oregon law oregon and the first amendment gorgon constitution the first amendment so i do believe that that both would need to be addressed and you know it in a sense i think that as long as we arrive at the that the position that these are unconstitutional under the first amendment i think it kind of follows a for shiori that they're also unconstitutional under the oregon constitution just because it affords broader and wondering is whether it is undisputed for the purpose of summary judgment that the people who stop to were acting pursuant to the policy or in violation of the power because i think seemed ambiguous to me as to whether they were actually acting as part of the official written policy or were just going beyond that on their own home so it was that that's certainly been their argument on appeal but i but i don't think that is in dispute or a disputable fact i mean first you have to start with the terms of the policy that are written very broadly and the defenders of argued on appeal that the policy didn't apply to parking lots and that's what their argument is but the record does not support that in fact in the record you have an exchange between and this is in the deposition you'll see at page two hundred  forty eight of the excerpts of record this is a question about the the sign and banner policy but asking about the scope of it is it the buildings does it include parking lots did it right up to the edge of the property line what is your understanding of that and this is the superintendent record responding yes to all of what you said it is the facilities it is the property line parking lots any outbuildings anything that's owned by the district so the idea that it was that it didn't extend to the parking lots doesn't really hold water and there's further proof of that in the policy itself which says that it applies to both owned and least facilities the only least facility at here was the was the kind of parking area across the street and so to the extent there is any claim that a policy didn't apply because it was in the park so is there any evidence in the record that when the security guard  but what you have what you certainly don't count is this kind of narrow gloss on the policy being announced any time before or after the fact in litigation on they can't point to anything saying that well ye happened she was approached by the assistant principal and he did not say a mistake was made that wasn't intended to apply to you he said he told her that what she did was in violation of the rules in place for the strike and that was that was principal assistant principal rupp who approached her and told her that so the idea that this was just the doing of a single road the security guard does not hold up i want to say that an inference that should be drawn at summary judgment i don't think that that declaration or statement that it got position where they say we never said anything to these security guards we just one of them there to keep the peace i don't believe there is but what you do have is the superintendent's own own deposition testimony that says this applied everywhere and nothing that it you know and when a school district and acts in extremely vague policy but they really shouldn't be able to benefit from the fact that it was  to each one of these forms of release i don't know that the court really needs to linger too long over relief that applies to one one plaintiff when the other plaintiffs in the case are entitled to the same  and there of course the court held that this restriction in the lanham act prohibiting prohibiting trademarks to disparage any group was a form of unconstitutional viewpoint discrimination and the court rejected the contention that this was just a restriction on government speech and the court when for out of its way to really discuss the dangers of overinterpretation the government speech doctrine the sec the court said that it was susceptible to dangerous misuse it said that if private speech could be treated as government speech the government could silence or muffle expression of disabled of disparate viewpoints and whatever you want to say of the school district's government speech argument here it would be a significant expansion on what the court held in walker and the and the time court said that walker marks the outer b of the government speaks doctrine and the court in town was particularly concerned about some of the imp occasions of of an expansive reading of the government speech doctrine there they were really concerned about what would happen to copyright law  but a few of the examples that that the people brought up earlier really show the dangers of expanding government speech doctrine in this case you know that the tinker court when it talked about public schools said that they are you any member of the public who comes on the school grounds can be conscripted as a government spokesperson where anyone's property brought on schools school grounds can be confiscated as a government billboard and there are other kind of implications  should be worried about as well if you were on or the school district's government speech argument here it would call into question a whole raft of those u s supreme court cases that would seem to be  untenable at that point rumsfeld versus fair rosenberger lands chapel all of the cases where the court talked about access to school property in terms of a limited public forum where the viewpoint where restrictions on viewpoint were in permissible if this if the school districts argument were to be adopted all of those cases would seem to be questionable at that point and what things over all of this case is not just an attempt to insulate the school from a viewpoint it dislikes but an act of attempt to intimidate striking teachers who wanted to express that point the school already had him in place policies that prevented disruption and i want to be clear that that the union in the plainest were not challenging any of those policies that were in place earlier and that would have easily protected the school from disruptive conduct or anything like that it already had in place policies that protected its interests but unlike any of those policies that picketing resolution threatened to threaten to initiate complaint proceedings against any violation s the the same resolution said that no violations will be tolerated the school told stop striking teachers that untruthful picketing signs are on the lawful and the school east property just s deprive teachers of a spot near the school to organize their pickets and it told striking teachers that they would not even be able to visit their own children at school unless they refrained from picketing earlier that day a kind of a classic case of where voluntary cessation should not be treated as and you moving a claim to the general rule is that voluntary cessation does not nickel and that you know at and that the other side would have a heavy burden advocate that their conduct was permissible and here they are arguing not just that their conduct here was permissible but they can go much much further and recall that the union and the school district here are in are kind of locked in to a long term relationship where they're required to engage in bargaining on no ongoing basis and renegotiate a collective bargaining agreement every single time and so the pall of this kind of unconstitutional threat hangs over the entire relationship in the absence of an injunction these strikes if they occur often very short this one was only seven days and could often occur you know could be decisive in a strike or could occur so quickly that school district has made no effort whatsoever to argue on the merits that these restrictions were constitutional as applied to students i don't think they could i think this court's cases in chandler vs mcminnville and berkeley baker are are absolutely decisive on that issue and so i think it is fitting that they did not attempt to argue on the merits but i have just about wrapped up my time here and i thank you and ask you to affirm the just reports judgment thank you you your honor judged by as e r two ninety six has reference to the communications between the security staff and district personnel and i think you'll find that in that case the building principal had no idea what the security people had said to this young woman but that's the citation that you are looking for in the daughters of this court has had three separate occasions to look at the circumstances involving this under involving  school district to reject speech on campus indeed dealer at all in one nine hundred ninety nine this court affirmed a school district's authority to say to an advertiser you're not going to put the ten commandments placard on arse baseball field fence you have authority to exclude them that's the ninth circuit in the downs case in two thousand this court affirmed a school district's authority to tell  teacher you are not going to put on our bulletin board in the high school a message that contravenes our belief our being the school district on gays and lesbian rights and then finally in two thousand and eleven after sume but before walker this court found in the case that that school district had the authority to tell a high school teacher you cannot put your materials relating to religion and patriotism in your high school classroom because it contravenes the message that we are trying to deliver to our students all of those cases involved in exclusion of some kind of speech on campus and we believe that if you look at the way this case evolved in the trial court the magistrate relied on the arizona life coalition case that's a two thousand need to citizen that pre dated walker that was a specialty license plate case your honor we believe this case presents you with an opportunity to set the record straight and find that arizona life coalition is no longer a good law it cannot be squared with walk in between the time that the magistrate gave his findings and recommendations and the article three judge reviewed them walker it was decided and we cited walker to the article three judge judge machain and made the government speech argument and he affirmed of course the magistrate but for all those reasons we believe that the government speech doctrine is something that this court has looked at and affirms the authority of this district while school is in process to exclude the disruptive behavior only on campus of a strike involving bullhorns signs and what have you point me to where in the record there was evidence of disruption that the district court the report recommendation adopted by the district court said in so many words that there was no indication of disruption were in the record is there in evidence to the contrary well there was not a claim here on ars that anybody was that anybody tested the policy by going on to the school district property hear anything about anticipating disruption in the idea of the policies it was to avoid the disruption and can you point me to anything in the record that illustrates that or suggests what disruption was the concern of the school district yes i believe there is there is testimony from the superintendent the building principal that having the strikers on campus politics kids were in school in classrooms where they could hear the b where their own teachers were striking and some were duck then to use the magistrate's pedagogical view what it would be incumbent upon the district to put those who would cross the picket lines in classes to discuss the bill of rights for these students the counter measure if you will what would be a preexisting policy is prohibiting disruption have permitted the school district that's that's her argument you don't have to wait i'm trying to get at any answer to the question one of the preexisting policies prohibited disruptions sufficiently to have allowed the district is say you know you're yelling into a classroom stop yelling into the classroom no i don't believe so there are no i believe there is no policy that was preexisting about that i don't believe that once the district has allowed it an ongoing teacher strike picketing on campus that you can begin to parse it out and say there are ways to remediate the disruptive effects on campus it is per se disruptive to allow striking teachers within sight of the students within earshot of the students and after all your honor what is the purpose of having the strikers on the campus in the first place who's the audience as opposed to the city sidewalks when the taxpayers are out there and presumably would begin the lever of the school board perhaps its economic positions views of the collective bargaining but they wanted to come on to the campus and deliver this message depicted on the boards  their voices to those who chose not to strike or to the employer who disagrees with their collective bargaining positions or to the students thank you coun