rendered mostly irrelevant by this court subsequent decision and ts chasidim in that case this court rejected the only reason the government has ever given for the nine actually a distribution in this case which is the government's position that properly is that the court construed the word support in the statute to mean practical support in the orma answering an i p c questionnaire unless the party takes additional actions that negate that support and  the exercise of pointing out that they had supported in the plymouth mary and only took no action in the final and pointing out that the reason they say that supporting the blair is helpful is because the government needs a twenty five percent support response in order to proceed with the investigation so i guess my question is if it's the way that you just expressed the whole thing was correct it seems like the training has an awful lot of picton this opinion well they didn't include that side which was about in there i would at reasonable reading this whole i don't think so if you read the opinion of the whole to take the initial question of did it matter that been initially marked support box the court answered the question of what does support mean by looking at the statutory text and said look you can read this to mean two things it can mean abstract support or practical support we read it to mean practical support the reason trace in a word her exactly what i know you're giving sixteen seventy five seen legally has up to reasonably susceptible acknowledges that the government says that i t c and customs contend that it requires not just the mission of letters and responses but also the inclusion affirmative declaration and so forth but the statutes plain language does not require producers to indicate a expression of support other than through a letter or by phone in a questionnaire response that states that supporting producers are those who commit letters or responses and then the one i think this is where it's critical that the court cited both s k f and in this case we have construed the byrd amendment not to reward or penalize abstract expression by itself but that is precisely what the government's interpretation in this case that the only reason actually was denied a distribution is because of its abstract expression because it checked the wrong box in addition there are very good practical reasons not to read the statute to limit distributions to people who track if you don't track the post box and that is the government itself argues that it's a critical piece of data for the government's implementation of the statute that it get honest answers to that support question and given that this insolvable that congress would have said finally support i don't know any other area of the law in which congress has created such a financial disincentive to get an accurate information that is not i mean you may be right in terms of on policy but my  facts are really different they took no action and had prior supported you opposed how do you reconcile the interpretation you're suggesting so what makes it hard for me to do what you want to do is that it so directly indicate support of the petition by letter you didn't found that are right that doesn't apply to you or through questionnaire response did you indicate support of the petition by questionnaire response we did in the s oppose it was really hard for me to say that is an indication of support through questionnaire response but she simply didn't mark that it supported a view but that shaped the need called out in the opinion numerous times they did say that the whole but it significant public interest of political controversy it raises very real first amendment questions which is court attempted to avoid and it doesn't avoid that problem if you say that shea sidney doesn't give a distribution but actually can't solely because of what it said in that case because you're done so you're only way around that a plan and your argument really is that because we're compelled to try to construe a statute so as to be competent to show you should read the burd all right now we've got three people arguing on your side and i don't like this run the clock because we're not going to take responsibility for any of you if you run over with the plain language of the statute which doesn't provide for distributions to be made to parties that didn't support the relevant any don't think petition and that these arguments are waiting day to his argument about let's take shape in the first and  irrespective of whether you take the oppose box is not not for the court limited the reading most of the statutory language in a very minor way and footmen twenty six the decision to say that a party that did check the support box and has statutorily supported in the manner stated in the statute need to have actually participated fully not just checking the answer then i would but from the standpoint of the statute it would probably be that the act of supporting through checking that box on the questionnaire would negate the possibility of the producer being treated as opposing for the i i assume you disagree here and tell me why i'm wrong so i disagree with a reading because it is inconsistent with fish with the rationale that was underlying the finding the statute is constitutional in doing that in applying the central hudson test the court was very clear that it had to find a way to explain why it was not overbroad when the statute provided this benefit not only to the petitioners but also to the supporters and in in following that analysis the court explaining the reason why following this litigation analogy that a party that opposed and in a party that took no position were in a  way similar to a defendant in a litigation context and it was fair and appropriate for congress in that instance to feel that it was appropriate to reward the petitioners and supporters but not those parties this checking of the box isn't really abstract expression to begin with of the court but because it involves a flick of the wrist what well because the question itself has a meaning in a spreadsheet purpose in the context of these i t c producers which is a required factor that the i p c c is going to look at and terming material injury might but but it is true is it not that the i p c c has proceeded with investigation ago indicated it's just a factor it was a factor that the i t c was required to consider and because that was a factor the i t c was required to consider it was reasonable for congress to use that reading and it is more th just checking the facts it doesn't lock in to anything else i know a class action affirmatively takes an action that makes you a legal representative in a case makes you involved in a legal very legal sense but just checking the viewed by the court is similar enough to the actual titties in a litigation context of a party basically signing on and asking for the relief that's going to be provided to a class that this is a reasonable requirement in the context of what congress was trying to do which was to reward those parties whose who were actively seeking a remedy for unfair  that but it seems that that language of the statute says fifty percent of the production like product of fifty percent of the production of the domestic like product produced by that portion of the industry expecting support except in proportion for or opposition to the petition so i assumed well fifty percent of the number expressing support for our opposition to the op you're telling me you count the no support  plus completing the questionnaire that actually together has legal effect just like in litigation in judge moore just like in litigation i'm not saying you know it is perfect but just like in litigation when a party stands up to similarly situated party one says they object and the other one doesn't anything the party who objects is not engage in abstract expression those words have meaning they have meaning in the context of that a geisha that's what's going on here there is meaning to these words that isn't in the context of political speech or expression it's in the context of a long standing administrative process and words have tests meaning but what s k i said is it can't just be the expression it's got to be combined with the follow through which is completing the questionnaire judge post on your question s k f the real reason why the facts don't matter there are two things one i think we all agree under the grateful decision the supreme court you have to read decisions as a whole the reason why that's important and why the ordinance care follows discussion of the facts with the specific litigation analogies because that was a facial challenge and if the facts actually really made a difference there it would've been more of an as applied challenge so when the court goes into the discussion the fact if you take a look at the court says indeed and then goes on to discuss the facts and wrapped up with the litigation analogy the reason is the court was making the point that looking at this as an expression and conduct that occurs in litigation it's consistent with the facts on the ground but it isn't dictated by those facts judge morris as i move very quickly here let me go through the three points why i think that you can dispense this case quite easily and what i would urge the court to do is do it in this way in a way that we can clear the doctor of these cases because i think there is a way to reconcile chasity in s k f that make sense and allow these cases to be results one is that the position taken by the opposing party in this case of its or its the plaintext judge moore again your question is right the one which an appropriate support terminations apparent absence one such important circumstances the producers participated in the investigation provided supporting information or argument in a questionnaire of your own or two points to that one is about the circumstances to civically the circumstances that occur in litigation and why it's so important that we comply what combined with a complete questionnaire this conduct has meaningful legal consequences both for the commission's investigation and for the commerce department and you'll see on j two forty three the respondents in this case specifically argue that there was not enough support and therefore the investigation should not go forward that's part of the answer he said specifically argues none the court you mean they actually like s k s involve themselves   what they argue was you should impose any dumping and dumping water continued investigation because we don't have to do with them because they did not indicate their support and the number of people that did not indicate support nine parties and seventy took no position that was significant to the commission's determination as to whether those injury to the domestic industry or not the commission looked at that as a relevant economic factor if there'd been enough parties that had not support makes it sound like every time i risk on to a survey right i responded with surveyor saying that's not my abstract expressionist piece it's my abstract expressionist piece the fact that the surveyor might take that information and utilize it in some fashion your own good you're absolutely right if you were responding to surveys outside of the court but if i was in court and it was a litigation survey being presented to me by the court or biologist or process the survey has meaning relating to that that you get toward a process we don't have the cases deal squarely with the significance of which petition in two other places in the opinion it also specifically indicates that there is action it never took any activity to oppose the petition including checking on her commenting your answer just clevenger on the fact that it never expressed and opposed to got this wrong is that there are two things that have to happen and staff when you have to indicate your support on the questionnaire and second you have to have provided data that the that the government is asking in order to provide the act further action to prospective in terms of that first that the can do that either statute to avoid constitutional problems and sometimes are part of the court to read the statutory text against agree it's absolutely clear from the touch of the statute if you read it without any constitutional concerns that sending in a letter in that plain language of fact because doing so would permit the government to award abstract speech alone and i said because of that we're not going to give that language in fact we're going to say we're going to read support the word support in the statute to m for this purpose which is that it demonstrates of this court has recognized you have to read the statute against the grain sometimes in order to avoid a constitutional question this case and shay sidney posed the flipside of the constitutional problem of the letter writers which is that if you read the statute to say that you have to express abstract support in order to get to the distribution then you are denying the distribution based on the habs track speech alone and that's also a constitutional problem in the way you solve that problem is to read the text of the statute where it says the word support is to mean practical support not abstract support practical support by answering the question or providing valuable information to the makes no sense because it wasn't because the court was trying to explain how this actually would be constitutional if understood the way that the government understood it and in order to do that they had to construe the word support to mean not simply abstract support in the sort of court made the same  distribution and companies like oakwood did it was simply because that of the box levitra and the government said that's not stage because we took that view into account in making a decision if i can say just three things about that what's being severed is a part of the definition of a petition or supporter that says you have to express our struct support and that certainly i don't you know nobody the government and i haven't argued that the whole thing several make are around one little piece of statues on posters from a vendor in effect a distribution yes i think that's right of course we haven't reached nobody's briefed of this question and these don't have the region can i can i say a couple more things though about the government's argument that this is not speech because they rely on it and one is that it doesn't make any sense the government holding this court and chasity that no support our taking a position to answer is exactly the same for all practical well let me correct what's been said about that commerce not the i p c c makes the fifty percent determination and they don't do it by relying on the i p c c questionnaire we're talking about here they conduct their own homes and so it's a red herring for anybody to c looks at the answers to determine whether there's been a material injury and with respect to that question the government has said that a no take no position answer has exactly the same effect as an opposing answer if a different shade said in they haven't denied it here and  that's the case then there isn't any reason for purposes of statutory construction to expect that congress would have treated somebody like she said they would took no position differently than somebody like ashley who said opposed there's no practical consequence other than the one that i mentioned before which is to set up incentives to garble the data that the government doesn't rely on by providing a financial disincentive to give an honest answer is we have an election time i want to go back for one second if this section is unconstitutional and several constitutional party realize that what's left under the header list of affected domestic producers is a list of petitioners that's it that's left i don't know why you think you're not a petition right now but what  the other side says this is not speech this is like joining a class action the problem with that is that the question that we are asked to answer isn't the question do you want to join the litigation it's what are your views about as an abstract matter about the which actually actually follows the question that we're asked is simply a question about the desirability of imposing sanctions on one of the nation's biggest trading partners and it's perfectly valid for somebody even in their tears down pain even when they're injured by d