have to overlook binding circuit presidents asked this court to reject the th circuit's decision and pete of the starting which held that essentially identically situated plaintiffs had standing to challenge the north carolina law which the arkansas was modeled and must also take issue with factual allegations in the complaint which is inappropriate those motions as mistake each so briefly touch on each of the three independent bases for standing st there's chips where a statute restricts plaintiff's desired activities so they are no longer engaging in those activities the statute produces a current and i'm going injury of fact that is the presence of the statute itself statute that soley provided for private civil and for some and they sued the wrong defendants and in fact what happened is the court said you sued the wrong defendants but the decision to allow for minutely found there was injury in fact from the existence of the statute the statute which created private civil and forced and allowed for injury in fact to exist the question was then as a name the piper the friend says and blogs that no you should you can't name the government when they can't enforce the statute you have to go out in the in the private defendants who kind of force the statute that goes to redress ability and traceability which defendants here have said the court should not reach and the only issue before the court today is injury in fact but wow affirmatively holds that there is a jury in fact for a start should provide for private civil was a lack of standing for other reasons but using both went a step further i guess even though ended up holding no standing it may be debatable whether the injury part was holding well i actually don't point out to this whole discussion about whether in fact the c l u in that case knew that it was going to violate the statue in the so that's debatable but doesn't matter and then right after the discussion they explicitly say we hold that there is an injury back here then they go on but they take your decision a step further and that is the whole thing and to be clear this makes perfect sense the whole point of the chill doctrine is that where a statute exists that covers your desired activities then you then we should not require people to have to go out and violate that statute in order to secure their st amendment rights the point of the open marketplace of ideas is people shouldn't be afraid to go out and exercise their rights they the state can't outsource it's ability to chill then claim that there's no and then everyone can say there's no way to get into court that would gut the child aka that's i mean that's what they're saying here and ironically what the president legislative history shows that's exactly what the state was trying to do they were trying disgorge the cup the court from being able to ever hear these pieces so they can go out and show speech the exact opposite of what the shell doctrine is meant to do but even if the court disagree with that there's a nd an independent injury here that we've alleged which that we allege that we will be subject to suit by these defendants that's a unlike shell that's a future looking harm other than oppressive harm but we allege that we are positioned to be subject to suit by defendants and the allegations that we  ready willing and able to violate the statute we do need to show that there are no contingencies but we are just one step away from violating the statute and therefore we are have a future of looking harm and finally we've also alleged that we are suffering as listeners their st amendment recognizes a right to receive information and where a statute chills others from providing that information such that we can no longer it we have listener stand and really none of this should come as any surprise arkansas designed this wall to be used against these plaintiffs they empowered these private defendants to use the these defendants against them and therefore they've modified their behavior i think you know i don't think that i think one area we all agree is that this case is not very complex we think it's not very complex for different reasons but i think i don't it is that true and what's significant about that your honor the answer is no that's not true but it's also not significant so if you point out which the j h twenty eight paragraph seventy to seventy one of the complaint which makes because she sponsored this law these plaintiffs have been leaders in challenging these ag gag laws across the country part of their political speeches revealing how they've been used to suppress important information so going into dnd votes farm whatever they find there is important for plaintiffs political advocacy so those are two concrete facts or three really that we know about these defendants that we are going to be able to uncover and defend is the dispute speculate the answer to that question is no y b what's the need to go on the premises swaddle cheat couldn't couldn't there simply be this information that she say is already out there be published so we know the minute i think i mean maybe this understanding each other slightly or are we know what's occurring at the facilities we don't have video of what's going on at the facilities yet that's what your question is were we want to go out and document that to reveal that to the public what these plaintiffs do is that they show the information to the public and they believe that by showing the information to the public they can build political pressure for change and that's what they want to do but i answer the nd part of your original question judge sheppard what it doesn't matter because we defendants in the district court it was confuse the future risk of harm where we need to prove that we can violate the statute with chill chill only require that we show that we fall within the statues terms what we desire to do falls within the statutes terms and we don't have to go out and prove anything about what's going on in defendant's arms this is the initiative referendum institute to ten circuit judge mcconnell they're set right for the on bond court was that it would be silly to require plaintiffs allege all the facts of what they were going to uncover for chill because the whole point is with cho that the statute has stopped us from engaging in these activities in the st place stopped us from planning these activities even if you look at initiative referendum institute there the defendants are skipping the plaintiffs said that they had no idea what referendum they wanted to propose under the law but because that was stopped them from even thinking about what referendum the proposed they found that was stand it and you know just call to another case that you've been involved with a reynolds which raises the iowa statute the i as you probably recall from having heard this case earlier this year i wouldn't even challenge playing to standing on appeal because it was so clear that w statute even if they haven't detail the specific plans of what they're going to do and that was true and reynolds points us to none of the specifics that are present here they can be chill because plaintiffs have these specifics they know that they will be able to violate the statute and reveal information that's of concern for them or i should say they are a position to have sufficiently allege that that they then fall within the nd basis for standing which is that they can show they suffer  future risk of harm that's distinct from shelves at shepheard's they don't even need those facts what about the practical concern here and if the state passes a statute like this the implication of the plaintiff's position here seems to be that they can sue anybody who operates in agriculture facilities hail them into court and force them to defend the state statute what should we make of that well i think i'm confident i'm sorry  cut you off it's cotton but i'm covered that's what you're going to hear from the other side but that's just not true what we could only allege places which we wish to investigate for want we have to fall within the terms of the statutes we have to actually be able to prove that summary judgment that we wish to investigate these facilities and two defendants have the option to come in saying no we won't use this statute and therefore we don't want to defend it they have that option from day one in this case it could have gone into court and said we have no intention of using this statute and therefore that moots chill that's what this court has set into it one care committee and what it said it enough republican that the party of minnesota excuse me that the defendants could have mooted art shell they just chose not to and if you look at page fourteen of the vaults greve what they say is they want to keep this out there's an option they're hoping that they can keep this out the statute out there their ability to use it to chill suppose the state at some point one might think would come in and the merits of the stand shoot if you got to that point and believe private parties of the need to retain counsel that defend the constitutionality of the statute is that an option too of course it is your honor and in fact as you probably noticed from our exchange with the clerk in this case when plaintiff five of the suit the very st thing they did was go out and notify the state that they had filed the suit challenging the constitutionality of the states not named the state has chosen not to intervene but that we have been trying to put them on notice from the day one of this case and as you know the state was invited to intervene here as well and again you know defendants have the option should they not wish to bear these expenses just to say we don't want this wall we don't want to be the ones defending it go ahead and investigate if you can you know if you can't better if there are no further questions at this time i think over serve the remainder of my time and turn to address two issues the st is the district court's findings on the injury in fact and the nd is the d broader issue of the jurisdictional basis for this lawsuit against my clients still can serve as an injury in fact where it is an objective really reasonable fear that was the focus busy of the district court's analysis that was the correct area to focus the pledge of some suggestion that they have different kinds requirement is irreducible constitutional minimum and so there's no you cannot reduce the constitutional minimum for standing by alleging a different kind of injury in fact you reduce for constitutional minimum for stand it no matter what sort of specific injury in fact hurts ready this court and visual recognition or even discussed explain possibility of an investigation also the results possibility of publication and a possibility of damage to my client and the possibility that my client might bring a civil lawsuit we are we're still servile hypothetical steps away from a case like a while where the a c l u published information that it later learned to be prohibited by law by regulation and in fact already violated them all so busy well i thought the plaintiffs here said we're going to take action that will give you a give you that will violate the state law and you've just you decline force while your honor we know some cases like our party can't simply manufacture standard or manufacture standing and that's precisely what they're trying to do here that's what they're trying to do with a synthesis letter to my clients saying you know waive this cause of action but there's there is no reference in the brief stating of a private party like my client has any obligation to waive anything in response to an unsolicited letter from a party that never had a deal and it hasn't and in fact anything you certainly don't have an obligation to but the question is whether that creates a reasonable objectively reasonable fear that there could be and the law firm said we're if you don't desist we're going to recommend suing as the th circuit looked at those situations and said well where the government is actually issued a notice of abatement will find an injury in fact however the counties we're sending a letter like that didn't send that bart so it we have a an example right there your honor of something far more informative that was not enough to constitute an injury in fact and there's a another component another element of this analysis being overlooked which is d whether a party is a private party or government party busy it may be fair steals confidential trade secrets and perhaps turns those over to a competitor who engages in more appropriate behavior that's more consistent with the plaintiff's advocacy and with what a cause of action exist under that statute perhaps but we need that's why that's why article three requires it through case or controversy these these things cannot are not supposed to be settled d in the abstract it specially where the  amendment is being used as a sword offensively against a private party who has done taken no action these are all servile steps removed and various ways from all of the case but we don't need to stop there there's no reason anyone with an advocacy interest and anything could make parallel allegations that they d would like to go out and investigate someone about plaintiff's logic anyone has standing d if they are sitting in their office and think they want to go investigate someone else in arkansas all and are willing to allege that hey i'm going to do this you might sue me i'll sue you in court that cannot be the basis for the existence of a case or controversy because under those facts the controversy exists but everyone in arkansas so at what at what point would you say i want to pin you down on this or make you say something that could be used against you later but just kind of speculating here when would there be that's why we need facts the district court concluded that if it were a situation like peta where an investigation had occurred investigation has been to work and they're going back again and they were doing it again state actors so d well it refresh my memory in the complaint in this case is there an allegation that agents or person in arkansas could say i would like to hire someone to sneak into a wal mart d i would like to hire someone to sneak into the mom and pop restaurant down the street to monitor their kitchen there's there's no girl case or controversy example where the party was actually in arkansas with cameras doing something obviously you're married you're making an international parade of horrible well isn't that isn't that a question of the merits though as opposed to standing with a valid cause of action that would actually prevail in the end though the other question is whether an object of fear prosecution clerk what's going on with the timer come back and say get up the court have any questions i'm happy to use that answer i didn't have a chance to address the underlying problem with the federal lack of a cause of action here are what you had three minutes left so madam clerk go ahead and restart the as an alternative ground for a firm and why is that relevant to standing no you're out of d our origins is it goes to jurisdiction about standing at all and this is the court's jurisdiction respects the basis for the federal court's jurisdiction over federal claims it's not an independent statutory cause of action now the district court didn't have cause to reach that issue but we argue d below and argue representative of an appellant before they were seen no investigator has ever set foot on their farm no investigations ever been conducted on their farm the appellant's have no information about john that they could use use being an operative part of the statute to then cause damage to john in the end and create a private call that action against john  in two thousand and seventeen and they're sending this letter in two thousand this is a family bar and there was a question about the allegations regarding employment there very is a in there not specific at all with regard to believe it means that you used your three minutes and we understood you were going to take three minutes out of the twenty is that your understanding that's right that's right well that we passed the argument i think we'll hear from rebuttal thank you and what you what you just heard was the same sleight of hand that occurred in the briefs right to you what was constantly being referenced was the question about whether there is going to be suit against  explicit no threat is required that's been true of numerous was there's no need for the defendants to have threatened them it's the fact that this statute exists and if you look at people actually look at the facts of peter rather  that there can be no chill standing is if they state outsources its power to a private party in other words if this state wants to chill speech and just tells a private party you go and force this law and them around actually have to go out and violate the law these activities and have standing what's unique about animal legal defense fund it hadley qualities they allege and are going to be able to prove that they actually can engage in these activities these are specialized activities no one could just walk up the street and say i want to engage in an undercover investigation you have to you have this court is reasonable to put plaintiffs of the test to be able to say could they possibly actually carry out those activities that they claim they're choke from engaging in and how does the th circuit say that we do and as a result of that fear that the documents are going to violate the statute we're not publishing them and therefore we have standing and this court said yes you have standing in judge calls and this is exactly the exchange i pointed she had to earlier because there's actually a factual dispute about whether the documents could ever violate the statute of course is that as a matter your fear that they fall within the statute is sufficient for you to have stand eccles is not a chill case in echo's the standing that was found  about financial harm from a threat of suit again that's different than chill stand they do go on and say that there's not standing against the county defendants that's what the county defendants can't enforce the law that the exact opposite of what we have here these provides for any if any person but it's the law and as we've explained plaintiffs can get access through be hired as employees or hired as delivery person now or hired as contractors for  they've just misstated the statute to try to make it be confusing as to whether we could actually violate it finally on cause of action this is directly addressed by davis the passy but that but the supreme court says there is that congress has every right to create or remove cause of action for statutory violet and that's why we have statutory cause of action what the court is odd to say though is that different for constitutional c action there's no way he's equitable power for the courts to intervene on constitutional claims and then it one thousand three hundred and thirty one does provide the court jurisdiction to exercise that equitable power finally just in ready willing and able to go in that separately provide stan you think the cause of action question is part of the standing analysis or separate it separate your honor it's either it at the very least it's a separate question of a kid to redress ability and traceability oh it's certainly not part of the injury in fact questions are going up part of standing whether it's your procedure follows i can't tell you right now whether i have a thought about that but it's certainly distinct regress ability in causation or part of now i just wanted to get your thought on whether cause of action is part of standing or separate and if that's your thought on it thank you very much thank you know all counsel