please the court my name is mark tenner and i'll be arguing on behalf of all the plaintiff appellants morning like to reserve three minutes of my time for a bottle with the court's permission ok the supreme court has explicitly an individual has a viable cause of action against the government when he is able to prove that the government took action against him in retaliation for the exercise of this first amendment we hear the frozen food oh no no that form the underpinnings underpinnings of the objective test they suggest as a matter of policy that the infringement of constitutional rights shouldn't depend on one's relative timidity or this a different question whether or not the person is point because we would argue that the plaintiffs in this case were particularly vulnerable to this sort of retaliatory misconduct as we played in our complaint as a consequence of the retaliation to the plaintiffs had to resign from their public positions t others were demoted from their positions at the philadelphia district attorney's office and yet they never had an opportunity to defend against these allegations which is what in essence were seeking through this case because we believe the allegations were on found a bit of fact false for the most part proper context is to review all of the misconduct by kate and see the entire target of retaliation which least upon these individuals and then determine whether or not that is something with could reasonably deter someone from exercising their first amendment count two strides conduct for which cain has been criminally convicted in terms of we can the grand jury information i'm violating the statute essentially creating so called evidence of misconduct on the part of criminal misconduct but there's never been a case where a government official has been convicted of crimes and that same conduct is somehow shielded from civil liability  officials conduct violates clearly established law when at the time of the challenge the contours of the right are sufficiently clear such that every reasonable official would have understood that what he or she was doing violates that right the supreme court has stated we do not require a case to recreate on point but existing president must replace the statutory constitutional question beyond debate in other words the court has to place their shoot themselves in the shoes of kathleen world of politics where is this something more than that and i would suggest it's something more than that for two priests first the five individuals that are the plaintiff appellants in this case had never voluntarily entered the political arena they have never run for office they were simply lied office prosecutors and investigators who worked under five different attorney generals their political parties their affiliation remains unknown and on disclose this isn't a situation where you had a bad and forth between political candidates who are taking shots at one another this is a situation where these mine office prosecutors and investigators saw misconduct misconduct on the part of a sitting government official i decided not to be quiet about it there was no political primarily there was the tyrone ali bribery investigation situation cain was upset because it was demonstrated that she had a conflict of interest in that investigation her own political campaign consultant josh more with  conflict i sent this to the f b i she didn't like that she brought that back she says oh no this investigation isn't going forward we say she made that decision because she would want to advocate her friends at her campaign workers  s say that this hinges on motive and that a government act which motive is dispositive that's a fact question we believe that her motive was to bring some legitimate criticism to light in the public arena but to infect destroy those individuals that had information and that we're going to give testimony that we're going to take her down that's the question and that's a fact question for the jury that's why this case should proceed be on the twelve including cases trumpets court that suggests that whether the conduct is sufficiently retaliatory to tara pace a person in the point of situation from exercising their first rights is a question that is reserved for the amendment right to speak out on quote matters of public importance so they attempt to suggest that for example cain's disclosure of e mail these individuals in connection with something else their names that was motivated by some genuine desire to speak out on a matter of public importance where their silence is why she chose these five men out of the hundreds of people on the e mail strains these five men who never bothered to original content of a single e mail never even said an e mail stuff wound up in their inbox no doubt about it just like hundreds of other people but only five people have ever been named out of the hundreds of people even when the games that report came out subsequently they chose not to  take official action against the person who's making the limits we can just make sure we understand we're talking about retaliation claim is the second element is whether the action was sufficiently deter the exercise a constitutional rights by the players that get absolutely or ed you you know if an employer criticize those an employee or reprimands an this will be six case right yes sir absolutely and so you have to take what is alleged as fact and say despite all that i would as a matter of law absolutely and one of these facts in their statements that he was going to hyper regulate a car company in other words make it very difficult for the coal company to operate because of the involvement of the president a company in politics because there was an actual strike to take official government action which there isn't here but it was a threat to take official government action back horses the one crosses the line if you fire somebody it crosses the line if you indict somebody before you do is talk about them matter how bad it isn't even if it's the honor that would become a defamatory statement and that's clearly within for us and the other cases that  an attorney general try to do his job with regard to some really significant safety concerns at mines that were controlled by blankenship and but this is nothing like that where you're under it there's a tilt to it if it's for the purpose of coercing or intimidating a person from exercising his first amendment rights but all the cases assume that you are with circuit i understand there are i mean the reason is because the case law if you fall those cases and i recognize that one is not presidential and not one is not in the third circuit but if you follow those cases or in the alternative the release of information it was a bridge to grand jury secrecy and there's a there's a process i'm sorry i'm out of time you know where there's a process to deal with someone has violated the grand jury secrecy  and you know that process has run its course almost it's the storm appeal but that doesn't you know that doesn't necessarily mean you have to tear up the first amendment war and created showing effect for public officials and also it's a communication to the public about these individuals then then that does not satisfy the point to so as a crime committed a crime in an effort to intimidate somebody else court has obviously already recognized we're here on a dismissal under twelve b six motion we are entitled to the benefit of every allegation plausible allegation in our complaint as well as every intrinsic can reasonably be derived therefrom we don't circuit protects a government actors free speech conditioned upon two things one that the retaliatory action consists of quote mere speech in this case it doesn't if the court has already recognized that a criminal actions the fact that the conduct is more than mere speech the fact that there were threats and coercions tris doesn't apply bias plain language under both of them there's no way it should apply finally i'd like to direct  attention to the words of this court in the olive versus equaling case which was the third circuit decision in two thousand quote government actions which standing alone did not violate the constitution nonetheless because to to tional towards motivated and substantial part by a desire to punish an individual exercise of a constitutional right that is precisely the circumstance that confronts the court in this present case case motivation has been played throughout this comply and has not even been challenged as being a single motive to destroy these individuals well we would argue that her conduct was not legitimate government action even if the court thought there was a legitimate element to it inches on her motive not whether it could be explained by sun public benefit or something else motive as this court stated montero versus city of elizabeth quote motive is a question of fact that must be decided by the jury which has the opportunity to hear the explanations of both parties in the courtroom and observe their demeanor the supreme court similarly stated in neutral versus forsyth in proper intent is a question of fact respectfully suggest that this case should be permitted to move beyond the pleading stage so that a full factual record could be developed these issues can be squarely addressed in light of the evidence that would be accumulated through discovery and that these men can finally have a day in court to demonstrate that they were the wrongful victims of retaliation at the hands of the criminal kathleen k thank you thank you