to strict scrutiny in this case the defendants apple e's have conceded in their opposition papers to make a distinction between our illegal and the only way to determine that they were not permissible individual protest of the same number of people would be to examine the contents of the message thousand eight hundred and ten to two thousand and seven the court provided a very clear articulation of the test for strict scrutiny that imposes upon just tell them and can you hear me  yeah my apologies that's just wait one second and i'm sure the judge will call us back probably not connected instruction mcmullen it is the government's burden to establish one a compelling state interest to that that restriction is necessary to protect the interest and narrowly tailored to ideas that cannot be achieved through meetings significantly less restrictive of associational freedoms and as we point out in our briefing the exact same conduct individuals protesting independently of one another is legal under the executive order but a group protest as my client wishes to engage and of twenty five to one hundred people and indeed anything over ten people asking is that still your argument or of more recent events changed your argument with respect to content neutrality or were you not you're not going there in other words or is there any argument that the message is relevant in other words  certain groups protesting certain things are able to gather but other groups protesting different things are having the executive order divorced in fact that is the nd point that i wanted to make this morning and that is precisely the fact all one has to do is look out the window all one has to do is read the formal press release issued yesterday in which  didn't simply say we're going to tolerate or permit the message of the demonstrators i quote was you i support and protect peaceful protest in the city the demonstrations we've seen have been generally peaceful we can't let violence undermine the message of this moment it is too important and the message must be heard governor cuomo i stand behind the protesters and their message but unfortunately there are people who are looking to take advantage of and discredit this moment for their own personal gain that statement was made in the context of letting all of the demonstrators know that there was now going to be  curfew but if your message is consonant with the demonstrations that we've seen looking out the window then not only may you protest and numbers vastly than what my client wishes to engage in but apparently social distancing is not even required in our case our client made clear that her protest between twenty five and one hundred people would abide by social distancing yet according to defend its athletes her protest today or tomorrow would be illegal but the current protest would not and that's clearly made is not something the judge coach was asked to consider correct the point the point that is correct and it's not important to this case now because the viewpoint and content based restriction when examined under strict scrutiny which takes place and a traditional public forum is exactly the same the distinction only occurs between content and viewpoint discrimination and not on public fora this is a public for case the analysis remains in exactly the same thing and that was the analysis that judge coat examined below but simply didn't apply in fact the final point i wish to make is that even if one looks at intermediate level scrutiny which the district court applied based upon the notion that this was a time place or manner restriction one still has to satisfy the requirement of merit tailing and is the supreme court in macau in stated very clearly and defining what that narrow tailoring is and i quote to meet the requirement of narrow the government must demonstrate that alternative measures that burden to substantially less speech would fail to achieve the government and tryst not simply that the chosen route is easier if ten people eleven people fifteen people can protest independent of one another in exactly the same football field sized public park bench certainly twenty five people who are coordinating their message should have the shame right under the  motion and remand for further factual development if necessary however we believe that this record is sufficient demonstrate that ms governor would not be likely to succeed on her st amendment clean under the law as it is now  lot it constitutional however it would certainly be appropriate for the court to remain on this matter but what what would not what we don't need would be appropriate would be granting an injunction at this point in time because you have not demonstrated a likelihood of success on the merits and again we don't know if i'm there for the public health implications of recent events reflects treating me differently to created not comparable types of perfect such as mass gathering where people are together for long periods of time in close contact versus and again we believe that you're on the record rabbit kind of person you can patent constitutional muster however i guess what i'm saying is it's just as a practical matter that the world has changed a lot in the last four days five days and if this is coming up for renewal today or tomorrow that would make a difference in terms of how that comes out and how it effects the others claim i think yes your honor and that her motion and the fact that restrictions are starting to be loose and simply demonstrate that there is forward progress based on events that are changing and that are happening on the ground but as chief justice roberts even observe the new but the new argument this is just so when the new argument made light of recent events is that it's not you point me to a little and so that would be strict scrutiny right full i hope it's not the position that's obviously the case that would be problematic i mean that's but your i think your point is that none of it has been explored gets coat has never seen this argument it's never been briefed and there's no record at all right for anything anything else you want to say in light of the argument always on remand question we understand any new facts on the content based analysis and further because this is a matter of prior restraint of free speech and assembly by its search to of that it is irreparable harm every day that goes by that our clients free speech and assembly