ship that it was temporarily removed only to be reinstated again by the by the end bta so if i just contend that based on the facts of this case that the forward issue is a public forum particularly for playing analysis the you determine the form not only by the nature of the form in the compatibility the form we certainly know that this form is of this nature that the advertising your argument doesn't in the end depend viewpoint baser requirements of speech restrictions regardless of the form they apply in a nonpublic war so even if this the form the facts have not changed to the effect that this is not a public form underlayment a night and i just wan mention because i think the the fundamental rule of law from the layman case which this court acknowledged was the was really the supreme court case on on point on the form and this particular context is in that case the court held that it was a that it wasn't a public forum created because the government had to consistently enforce policy where they did not know where the only allowed innocuous and less controversial commercial and public service oriented advertisements ok believe was white and unreasonable application of the no didn't eaning criteria to the first and the third was demeaning advertise well first you have to look at the advertisements and entire context and what the what the n b a has concluded in terms of what is and is not reasonable and this is where the second advertisement comes into into place i think it's appropriate for the context is the use of the term savage if you use the term savage as a noun it apparently violates this standard of demeaning or disparaging is that the idea i think it's their viewpoint that they're trying to express in this particular advertisement goes way back to this question to you is it disparaging or demeaning i understand it might be that they have a disparaging or demeaning viewpoint but that's separate from the first question is it disparaging or demeaning to call someone a i don't think it's any more or less disparaging or demeaning then the refugee and he said oh but that's not my question is it disparaging or demeaning to call taken apparently make that determination by saying those who engage in seven jacks is not demeaning or disparaging but saying that those same people who are engaging in savage yaks those engage in violent jihad as savages but that somehow is reasonable i mean to me that is the that  viewpoint issue because as this quote said ridley changing the thrust in the effectiveness of an advertising and certainly if you can convey that message by using the term savages opposed to you know lengthening it out making it more complicated and even visually because it because and in the context of those engaging in acts they kill innocent civilians is a is a seven jack and therefore there are savages well that is if you can say somebody lies under oath but he's not a liar it does that is just it it's absurd on its face that the first amendment rises or falls on the question of whether a particular term because we didn't hear the savage some readers would read that as demeaning some readers would not because you've added the word violent but what makes the  concern that some riders view it this way some might view it either way but they don't want to give offense meaning it's what makes that the court were to think it is not viewpoint discrimination that it at least but as staggering number three it's a closer question why would you be entitled to an injunction under those circumstances if if you find that there was a point to remember you know viewpoint discrimination is trying sign your argument  ok let's let's assume out why are you entitled to a preliminary injunction is the federal court really in the role saying the language of number three we ordered to do that palestinian let's say they never had been of health and right all we've got is this that it's the only ad is the third right ok your argument as to it being unreasonable to prohibit that had is if i understand you that there's no distinction between that ad and the second ad and therefore if the bta permits the second ad they have no reasonable basis for rejecting the third ad because they're giving functionally identical only hostile comments in both the second and third it is that the argument tightknit this where you are the the acceptance of the second and rejection of the first in third demonstrates that this that the application of the demeaning disparaging is unreasonable because it falls and it rises or falls on the question of whether or not it word that's not prohibited adjective or no that's not say for the reasonable the thrust of those messages are are different and to them and so just to say it twice it's not the same to run the second advertiser's the third because you subjective interpretation on each when they decide what they're going to run it or not in the does the end be yet in accepting the pro palestinian have some obligation my opening and this was this was back to the phone question my opening it to controversial speech public issue speech was such a controversial issue they've opened it up and when they become now the arbiters of what is the what is the truth and not the truth that's problematic if you look at the palestinian and they had credit they had actual evidence that it was dished that it was a meeting disparaging by the complaints but yet they reinstated it was saying goes back to evidence of the view my presentation each of the points that you have raised during mr muse's argument first judge gorton applaud the applicable standard under ridley for a limited public forum which is whether the m p t a reasonably and without viewpoint discrimination in rejecting the plaintiffs did so on the basis that they me muslims or palestinians and he followed the court's rudely directive that when you make that determination the standard does not create an exceptionally hi and necessarily involves some degree of discretion and there can be more than one reasonable decision now the plaintiffs go off the truck in several significant ways bully in their briefs deferring to rudely while at the same time on ignoring what it sets here are the points i hope to address this morning first when i call the open door argument the theory that criticism of what they call the civility standard created by the guidelines forth the so called unbridled discretion argument and finally if time allows i hope to take a moment and talk about the first amendment principles that are raised in this case first the open door the plaintiffs here all be a be grudgingly acknowledge that the m p t is a limited public forum but then they say well this is an exception because the m b t a consciously decided to accept the refugee advertisement and therefore they say once they allow discussion of the israeli palestinian conflict the t v created a does it made it public forum for that speech that's the arc of this theory is that if a subject is controversial then the forum becomes a public forum and it doesn't need a public forum but there is no authority that would support that proposition because if that proposition work correctly what it would mean is that you cannot have a limited public forum unless you will avoid all controversial subjects there is no law that says that and ridley indeed says the contrary now the plaintiffs here accuse the m b t of sweeping under the once crossed created a point of no return insofar as the plaintiff's submissions are concert which is simply incorrect these guidelines in addition to the demeaning and form we have the reasonableness and the viewpoint issue and none of these were council question council just a moment ago if we put aside the palestinian ad for a second they make an argument that i the same officials who had rejected out who won accepted that second because they saw a difference between labeling a group of individuals some budgets which is how they saw a difference between high up on the one hand and the use of this way how many sentences constructive how these words are you still makes a difference if one criticizes the nazi party for committing against jews during the holocaust not surely is in my view a least a reasonable doctrine of the libel proof plaintiff there are to be sure certain people in history and in life who are libel to reasonable way and look at the viewpoint of the ridership of all of this transportation system which as we've been emphasizes involves a captive audience and  to address a statement that does not quote justice frankfurter quoted in the really case burned  barn to roast the pig or worse without effect so what i'm saying is just that the discretion that is imposed on the m b to officials to act reasonably will call upon vem to make  difficult judgments to be sure and it does not teach or the nature of the judgement you want the m t a to make is to suss out which groups the public really despises and which ones they don't there may be to some extent my question is in a case in which the n p t is certain that the public really despises a group it's ok then to demean them that's your view judgement about the group here other than you thought it to muslims and particular how that stinney and that is a different situation than i here it has to be reasonable conclude that the third ad was demeaning of palestinians or muslims in the way that the first ad was wrecked originally tell the client could you explain how you can say it's reasonable to think that it was demeaning of muslims when the word violent precedes the word jihad given that judge gordon explained that joe hot is an ambiguous word it might mean everybody just reflection he does not say that raises a point because if you look at the website which by the way the sixth circuit in the smart case says you can and should citing ridley then what do you find you find on the overtly antique website that refers to islam as this savage seventh century culture that's in the website and which further in the latest posting the one that announces this argument today overtly you choose is the m p t of being n t semitic for having refused their ad so it isn't just that the third didn't search the word violent jihad it is that it remains reasonable to interpret the thrust of th individual or any group of individuals but one point two judge in court took umbrage with that third and it raises another question here because what he accused the plaintiffs of doing was engaging in a form of gamesmanship after them bta taking the second reading considering it agreed to accept it but they were willing to take yes for an answer and so on that score it seems to me the standard of review with respect to the third davus a little different i suggest he did not abuse his discretion when he rejected that out all right stripping away the question of the palestinian and stripping away the  y my my view is that savage and violent jihad violence does not equal being a savage to many governments use violence even if it is a violent jihad that does not mean that savage acts will be performed at this point in our history if this ad were to run i would think readers so that on the term violent itself one a reasonable person could still draw the conclusion that this is stupid meaning or disparaging israel and palestine had been at war for years all sorts of violent acts have been performed on both sides it's now judge gorton did he stated this as an independent basis to label what they did bad faith from their point of view they're trying to get the ad with the most hunch possible but it would seem to me that in issuing  tweaked because in order to be reasonable and to comply with judge court accepts them by putting the law into this whole notion about viewpoint discrimination the other point i believe that you raised earlier not to mention the fact that the t has accepted all of these other pro same as one showing that this was not on her part an effort to get across a message it was an effort to engage m makes in response to the plaintiff's contention that the distinction between use of savage as a noun and the use of savage as an adjective is a incoherent or  meaningless statement just in the abstract because i take it when argument and e t a is a viewpoint is just a style or form regulation and if you use savage as a noun doesn't matter what group use it against we think that's disparaging what's the entirely different meaning now it's my answer to your question that meaning being what that meaning being that you are doing demeaning or disparaging an individual group of individuals who are making reference from the earlier way which targeted disparagement of only certain protected groups religions etc and the extension of it to the protection of the use of the word disparaging language towards any individual and just to of certain groups that it believes the ridership would view as not really hated this is the understand what the regular applying  the ridership a captive audience not ride to the t v i do not take the position that all individuals no matter who they are are entitled to the benefit of the us standard i think that is an extremely low necessary position to lie i do not believe it is the n p t s position  if i may just do i have another half a minute i just want to mention del kahlo versus porritt which is the more recent first circuit case for women rudely to the postoffice son and i mentioned  only because as in the supreme court case there is this important first amendment notion that if you take an all or nothing view which is essentially the plaintiffs who in this case you may end up with less speech not more speech and so in a broader constitutional sense i would suggest to you that the n p t is policies and how they have been administered in this you thank you appreciate all of the patience but this site really it's an important case certainly from from my perspective i want to say on a quickly you know government censorship of speech is not a game and so we take it very seriously no one's ever ties and were submitted for any purpose of  regulations to say that night in these are savages why isn't that demeaning or disparaging to germans under the same this are advertising everything it really are advertising it doesn't mention his long doesn't even use the word doesn't mention muslim he doesn't mention palestinian point that was made about new york times applying to this kind of speech is the problem with why now if they've opened it up to this is a very contentious issue that we're no longer in that limited public forum known public forum where we're just doing