good morning good morning your honor may please the court winslow taub on behalf of appellants and plaintiffs in this case peter reagan and lisa jacobson your honor this case concerns of fundamental first amendment right recently reaffirmed by this court and read the lyrics namely the first amendment protected right of observing a government operation for government operation plaintiff in this case you to observe is the activity of border patrol agents acting under the limit of already granted to them by u martinez where they conduct brief questioning of motorists without any reasonable suspicion could be for a moment just to help me with the physical layout they the there was a very small  and i didn't have a magnifying glass and and having read through everything thoroughly i still can't visualize it so could you help me understand what it looked like when the border patrol was first operating and then where did the rope  lines go yes your honor so when the border patrol was first operating the checkpoint i can't speak to the historical evolution of everything that's there but certainly at the time when the activity relevant to this case began there were a number of traffic signs  surrounding the checkpoint and on the approach to the checkpoint the lighter side it's going to east west and they've really only checking east is that correct it's correct ken and they have they had signs on the eastern road going up i n the east going west where they had signs and then when you got to where the border patrol officers were what was there so you know there are some temporary buildings on the south side of the road and other equipment there's a place right at the center of the area in dispute were vehicles or actually stopped to conduct the questioning authorized harm by martinez for taken without reasonable suspicion then what's on the sides of the road there so i there's barbed wire on either side of the road or what's on the sides so on the side of the road on both the north and the south side there is a a portion of the public right of way which is on paved to but again is it's public land and there are properties private properties on the other side of the barbed wire fences both on the north and south sides of the road so the barbed wire demarcates where the difference between the county property in the private property that's correct and then when they put in after the protests when they say they put up ropes where were the ropes put so you're on of the ropes were put and i think that i apologize for that the smallness of the diagrams are probably the case for the future you know when you're dealing with judges my age like a rectangles in figure one illustrated where the rope barriers were erected in response to plaintiff's attempt to monitor the checkpoint to go buddy so you've got the signs the bumps the temporary vehicles or the temporary buildings and then where the ropes going further further west down the road i mean east on the road or are they going further north and south where there were the ropes put up so just to clarify there were no ropes at all on either of the east or west side of the checkpoint area prior to pla attempt to exercise this right the ropes were not directed to first things that were put up or actually just police tape and that was put up on the east side one hundred fifty feet away from the center of the checkpoint where vehicles were stopped for that  that question though was it cutting off the the sides of the road or was it it wasn't on the road itself that was it was coming off the sides of the road on both the north and south side correct your honor is cutting off the side of the road the portion of the right of way which is pedestrians for example to like from the barbed wire to the road of one hundred fifty feet away from where they were actually doing the checking that's exactly right your honor and then subsequently the yellow police tape was replaced with rope barriers both on the fields actually three hundred yards is one of the focus for a second i'm sorry it's on your hundred yards you're right yards you're right thank you and i was really europe i want to focus for a moment on what changed to make this something other than a public forum and it's part of the same issues my colleagues have raised and that want to be sure i'm correct on this site as i understand it there was no physical change on the north side of the road the the addition of two street signs and a portable lighting is that correct on the north on this record that's correct your honor and of course the real barrier which was erected in response i guess from the south side here the south side as i understand it means a portable office a portable kennel and portable restroom but none of those are within the enforcement zone except the street signs are right your honor what the government first defined as the enforcement zone and this is a historical artifact the first sign put up on the road barrier designated this area as an enforcement so that so that was that was done after the protests correct your honor ok so before the protest what judge death was describing was the footprint there checkpoint area there was there was a few vehicles or or or buildings on the south side and if that was where the secondary inspection was correct your honor and so a couple of a couple things yes second that the area used for secondary inspections and again this is where vehicles were diverted if something comes up you know that the routine questioning permitted by martina's forte that harry is on the south side of the roadway and it's visible if you look carefully at figure one in the in the reply brief it's the it's the area there is actually a scale that's visible as a sort of black and white checkerboard the area directly above that on the south side of the roadway is the air and that is used for secondary unsplit when i was trying to focus on is what changed this from the government perspective from a public forum  for that's what i'm focusing on what changed physically your honor the only change that was made physically at the point where the government contends is the division between public and non public form is the erection of the real barriers and that really is the central and most troubling issue in this case is that that the definition and the alleged boundary between public and non public according to the government's theory of the case is precisely the obstacle that they are directed in response to express it  if so we've got the the road at the supreme court is the roads are from time immemorial public forums though i don't know why you'd be walking a road with the cars but but the sides of the road so there's like fifteen feet up to the wire is county property and what's is there evidence in the record or what is the evidence that they at a public forum i mean it could be public property but the supreme court hasn't said the shoulders of a road are a public forum it's f shows the row no unauthorized entry beyond this point but what it's roping off is like there's brush and there's some dead trees and you know that it doesn't look like a park or a sidewalk or anything like that that's correct your honor and again it's private property there are evidence in the record and there are some photographs of for example signs placed on property in jason to this roadway in the vicinity of the checkpoint making statements about either of you know opposition to or support  i had some of those i think it in the record saying you have a border patrol stay we love the border patrol or something like that that's exactly right your honor and i'm happy to provide the specific sites but so i work people was in an area like a public park was it had the county made it available i mean the fact that some people put up signs in the county and made it available as a public forum so i just i want to make sure i understand why what the basis is for saying that this shoulder area was a circuit case considering the right of way between a gas station and a road in considering that to be you know again part of the public forum that county permits again that the government submits in support of its case designates area as a public road and includes the right of way with and with the i mean i looked at the permit and it didn't have like any meets and bounds description so it doesn't really tell you what area was being granted the permit so the county  right of way apparently and authorized the border patrol to use it for checkpoint purposes but i didn't see any description of physical areas that's correct your honor and so the so the again the supremacy clause you know probably means that the permit wasn't necessarily required for the government to conduct law law enforcement operations on the road the permit does not specify a particular place on our of off the road where the checkpoint is to be set up there are of course regulations and they're legal restrictions on the mobility of those checkpoints and the fact that they have to be sent in advance and so the disputed area is the place where the government decided to to establish a checkpoint so i didn't understand your brief and maybe you can correct me to say that the original footprint of the checkpoint so where they had they were stopping cars inspecting them putting them off to the side continued to be a public forum is am i reading that correctly that that ad had been withdrawn for these specific law enforcement checkpoint purposes your honor i don't think it's possible to say on this record definitively definitively that a portion of that space or particular portions have been withdrawn from public use and you're not seeking access to the entire area or you know your honor but again the the limiting principle on which we're not seeking access to certain areas is the standard that's been repeatedly applied in cases where observation of law enforcement is what's requested and that's you should be able to stand where you're not interfering with those law enforcement operations and in cases like glick for example that is that the test that the court uses in evaluating whether it would be proper to exclude the plaintiffs who are so sure are you taking the position then so i must have misunderstood in the briefing that the entire area where the even the original area before they roped off additional areas even the original area where they were doing their checkpoint activities is a public forum  position i think at this point on the record our position is that we couldn't conclude a fact finder for example couldn't conclude definitively that portions of that specific portions are no longer a public forum i think there are there are certainly facts in the record that would allow the fact finder to deduce that certain areas are used for law enforcement operations and the court in evaluating where it would be reasonable to sort of restrict plainness from accessing could take that into consideration so you're saying  theoretically some portion you don't dispute that some portion of where the border patrol is implementing their checkpoint activities is a public forum you just don't know these the size of that footprint is that what do i have that right that's it's that's correct your honor it certainly was in on a fully developed record it could be possible to conclude that portions of the of the area around that place for vehicles are stopped are nonpublic forum but i don't think we have the facts on the record yet of two very important threshold questions as to which they are fact issues the other of course is is on the issue of viewpoint discrimination and even on the existing record the inference that a fact finder could draw on at the summary judgment stage the court is required to draw in the nonmoving party is that this restriction of access directed at plaintiffs was done for purposes that you point to superman nation i'm just going to highlight a couple of aspects of that the first of course is the timing of the  restrictions and regulations that are created after in the exclusionary context because of the risk of sort of post hoc justification the record here goes beyond that there are two very critical places in the record where there are direct statements the discretionary nature of the exclusion and this is at yarrow six nine this is from defendants and martine that state agents have the authority to determine who can enter into the perimeter that's in the record and the second is the statement by border patrol agents to the surveyor where they stated directly to the barriers or on place to exclude people such as protesters who might interfere with border patrol activities so they have protesters his viewpoint neutral right because you could have people who are protesting immigration policy letting too many immigrants and they would also be interfering with the activity the thing i was concerned about that the evidence of viewpoint discrimination that you  say created that anyone issue was that the surveyor who was an agent of the protesters was allowed in to view it and the individual who was anti protesters was allowed in and what was excluded was groups of people that the border patrols was interfering with their activities so it wasn't it was hard for me to see where there was strong evidence of  genuine issue of material fact that this issue that would support that of a viewpoint discrimination two reasons your honor and it's an important distinction that the point in time when there were individuals who were pro checkpoint allowed in the area for forty minutes or so was not during any of the incidents where there was a large number of of monitors at the checkpoint this was later where the number of monitors the checkpoint was very small and there is actually comparability in terms of the number number of people allowed in versus allowed out  there was an identified protest for example where there were more than you know a handful of people present so i understand you didn't have the opportunity to do discovery wondering if that's more a better argument because or didn't you just as you just it wasn't in the record that there were only two people or three people being excluded there's a it that i think even on the record your honor though given that there's thirty absence of any indication that the decision there was made based on number of people a fact finder could certainly draw the inference of viewpoint discrimination that's point one point two there's another instance in the record this is when reporters came to the checkpoint were allowed in on the very same day that the monitors were kept outside the barrier and this is exactly the fact pattern that this court recently considered in review learns where someone seeking to observe the buffalo drive was excluded from an area and later the same day others and other members of the public was in the best place for me to look at where the reporters were included so the border patrol established the air about the checkpoint in two thousand and seven so perfect you got from the county was very good didn't specify any particular location or size of the facility that's true there is a diagram to the back of the permit that has you know certainly not detailed but of vague description of what the checkpoint will look like and the permit also provides that the way out of the checkpoint has to be approved by county officials to make sure that it will be safe for  the traveling public but the checkpoints layout wasn't determine you know solely by that permit was determined by border patrol policy and by the national traffic plan that was implemented following a pair of fatal of the ropes was if you look at the record it you know page one sixty seven zero or page one seventy nine or two photographs that i think show where the ropes are you'll see it there at the edge of the checkpoint as it was already established so it was so with where the science and the pumps start but it's not where the actual people are located to actually look at at the cars is our that's right but i think that you know before they say that there's no other checkpoint that has this  was true at the time that the record was compiled in this case but it's also true that nobody had sought to congregate it in the center of the checkpoint so the problem hadn't arisen so our position is that you know for patrol tsawwassen checkpoint in two thousand and seven it wasn't government that roadway by definition became a public forum exactly at that point the government genuinely altered the nature of that public property such that it would no longer it meets both promise of the test first what's the purpose of the property is it a purpose that's consistent with public with the expression of activity no the purpose of this property is to serve border security will have the two cases the two principal cases that i think you rely on that found roadways to be nonpublic forums are grue or spock and hale versus department of energy in the ninth circuit but both those cases the entire road was off limits it wasn't a public roadway an withdrawn from public use and weren't open to the public in an unrestricted way but that's not true here revering still a public form a public roadway in the sense that traffic goes along the road i disagree with your characterization of the facts and both career and one in particular career where you had was a fifty five square mile military reservation with county and state roads and sidewalks that pass through it and the decision explicitly states that members of the public are allowed freely to travel through it and it's not as if there was a gate that they had to pass through people use those roads just as they use this road to get from one destination to another there were parking  areas that weren't used by the military on a daily basis that people presumably could congregate on and yet the court had no trouble finding that the entire military reservation was nonpublic forum here we don't have a fifty five square mile area we have a four hundred foot stretch of a road that has been marked since two thousand and seven clearly with lane barriers equipment on both sides of the road traffic cones rumble sticks and signs stretching out on either side of the checkpoint so if and as people left the courthouse they had passed through there and and you could interview them take them off whatever would you say that your establishment of that plant and the barbed wire or whatever you used would automatically create a nonpublic form in that setting i mean i'm hesitant to use the word automatically because this always depends on the context of the situation that's not devoted to express of activity then yes it becomes an unpublished it sounds like you're saying that no matter what the government does whether it's putting a policeman there or shack or whatever to do that automatically it's a non nonpublic forum no matter the situation you have to apply the test so is the purpose of the area now consistent with expressive behavior and is it clear to the public if it's not is a clear to the public that this is a different area so here with the checkpoint that satisfied now on the observation question there are cases including this court's decision for this recognizing a right to observe officers in public areas o safety issue or whatever and we found you can't stop that you have the right to observe you have a right to implement your policy but what troubles me about this is that it seems like you're saying that the government sits down and flops some reason let's say that is correct it is what it what is the government prepared to do to give the public the right to serve what's going on well and that that goes to i mean the right of because the supreme court has made very clear that the first amendment doesn't entitle the public to any information within government control and under the right of access to ask what the court looks to is first is there a tradition of the public observing the sort of proceeding that individual wants to observe but i can't stop stop you know them well is that a secret no your honor and if it were in a public forum and the individual were legitimately at a location then there is some case law to support the idea that the police couldn't stop a person from filming just for the sole purpose of filming but all those cases have also said that there can be even in a public forum reasonable time place and manner restrictions on the observation crime scenes and protect the integrity and confidentiality of investigations so even in those cases in public fora not a checkpoint which is you know a different situation the courts are recognize that there can be a perimeter established that would broad and the suggestion is that there's a disputed issue on that and your argument as i understood it was well the ropes just went out the area that was already demarcated as being a checkpoint but i'd like to ask you how far that goes in other words if the border patrol decided that they actually it more security that ans of one hundred fifty feet it was two hundred feet or three hundred feet  is it i assume it's not your position that the bore victrola could just decide on their own where the limits was of their area and that that would then automatically as judge us as become a nonpublic forum so arbitrarily choose a place to hang the robes they hung the ropes at the edge of a checkpoint that have been in the exact same location for almost ten years since two thousand and seven so it wasn't some arbitrary decision but more  significantly harder to defend and i don't think we'd be able to make the same argument that even before the ropes were hung a member of the public travelling down the road would know you know as soon as there are within where those  lane dividers are in and the rumble sticks they know they're not and your typical sort of public forestry well it was sounds like you're recognizing that this has to be narrowly tailored and my question to you is was that ever dea analysis either way you look at it courts have never micromanage the government in terms of where they put these sorts of women so if you look at farm analysis we have career where again there was a fifty five square mile military the the idea that i mean the court could have said well you did a one hundred fifty feet but i think it should be one hundred feet but the core recognize that that's not the proper role in determining where the nonpublic forum has and then even if you're in a public forum you were given i'm time place and men are the case law when you balance these rights or the government has a legitimate right to perform this border patrol operation no question about it but its extent as you pointed out it wouldn't be nearly as defensible if you did what judge bates and  of several miles people say well why did you do that well there's no justification but by the same token where the ropes whent they may be perfectly legitimate but i don't seems to me that we're talking about people wanting to exercise their first amendment rights to observe where they're placed whether it's reasonable is a material issue that the court to consider well i mean the record here is it is pretty well developed  why the ropes were placed where they were and also why the checkpoint is laid out the way it is so remember again the ropes were placed just at the edge of the checkpoint as it was already designed and the reason the checkpoint was designed that way was to further significant safety interest safety issues issues have existed long before these ropes were put out right but the ropes and and the ropes were put up only because no one had ever tried to do this before right this is a checkpoint on a rural road where people are not naturally going to choose to congregate so i think it was clear even before the roads were put up you know to a member of the traveling public they're driving down the road suddenly there are cones and equipment all around them they know that they're in a checkpoint that is not a public know you're trying to keep them out the question is why are you trying to keep them out and that's a legitimate question isn't it and how far how far away you can place the ropes or whatever the r constraining issue is where people can exercise their constitutional right and the government can perform its governmental function that's a legitimate question but somebody has to decide that well again i think by the federal government which has allowed access here it's a property is owned by the county which has given the border patrol a limited right to develop a checkpoint with respect to the shoulder property does that make a difference because what what's the authority of the border patrol to to fence off this shoulder area that doesn't make a difference for purposes of the first and i mean i mean i suppose you could try to make an argument about whether the government has the authority to do that under you know the state or county of the the permit that was given to it but for example in greer the military reservation here is the streets there are the roads that are worst state and county roads so they were all there or they had a right way is i have asked opposing counsel are the shoulder areas where the public forums before the border patrol came in are being it's fair for the court to assume that they were a public forum because they were a right of way so we're not disputing for so so we have case law about what the government has to do in order to transform a public forum into a public forum and if we assume that the shoulder areas was a public forum when the checkpoint came into existence the government didn't distinguished greer saying that he greer the streets and sidewalks were located inside a military reservation separated from the streets and sidewalks of the city itself and that's not true here and the only way in greenwich there are separated for purposes of someone driving on the road was you know sort of a signpost on the side of the road as you drove through it it wasn't as if you had to go through a gate and hodgett the do the plaza case there wasn't a fence or a rope it was just a couple of stairs so here is there well there's a clear men if you look at the pictures i think it shows that the equipment does stretch some length and individuals border patrol officers parked their cars at various locations on the north side of the road but the cones and the lane dividers and rumble sticks certainly did stretch so you're saying if i'm i'm a hiker and i'm going down this county right of way along this this two lane highway even though there's nothing obstructing me in the side the shoulder area once i see signs on the road i know i'm entering into a different area is that your position right so hikers walking on the road they see signs leading up to the checkpoint same border patrol checkpoint coming up and you know five hundred feet two hundred feet etc then they get well two traffic dividers rumble six cones i think as soon as they are there parallel to those that equipment they would be on notice that this is not an area devoted to express activity just like someone walking up the stairs to the supreme court plaza would be on notice that this is not the rest of the sidewalk this is a different location it doesn't take a fence or rope to do that so your your position is that from two thousand and seven on as soon as the government got its permit but some stuff out there it became a nonpublic forum nothing else needed right that's right the my time is running yes thank you very much council for shit a few minutes thank you your honor just a couple of points and this goes to judge include his question earlier about the state of the factual record as became clear in that last line of questioning there are a number of things around this area where law enforcement activity takes place including signs starting from a long way out the document that specifies that which was produced in redacted form is the traffic control plan a reference by the government the condition in which the traffic control plan was produced does not allow a fact finder to decide what areas are actually used for law enforcement for example at year one forty there's a section of recommended inspection equipment which just says the following inspection equipment is recommended depending on local needs and everything else is a big  under personnel that's at your one forty one to one forty two there's an introductory sentence and then a big black box run with the actual details are so this is the state of the record on the actual use of the property which again is one of the factors that you could look to in deciding whether something is been converted from a public to a nonpublic form there is no detail from which a court or a fact finder could decide what is actually used i gather your position does not agree with your opposing counsel in two thousand and seven when this checkpoint was demarcation so the public knows that they're entering into a separate area so your honor i think that that's not the extent of the inquiry because even opposing counsel conceded that the use would have to be legitimate so there would have to be some is that right correct so it's a legitimate purpose but are you saying that there would have to be a justification for all parts of the area and the courts inquire as to whether there was a justification for all parts is that your position i think it's a little bit narrower than that it's that if there were in two thousand and seven which is again not the facts that we have here and i don't to get too far into speculating but if if a large area had been set off and there were a policy adopted that reason as for the scope the size of the property are you not doubting that a checkpoint is a legitimate government purpose right now that all your so you're saying there would have the court would inquire as to whether the size of the area was for a legitimate legitimate is that what you're saying yes your honor and again it's viewed through the lens of first amendment law it's whether the exclusion of of plaintiffs seeking to exercise their first amendment right to monitor from that very large area was proper tent if they wanted to over the i mean if that if they had a legitimate government if occasion then we wouldn't be looking at exclusion right because there's nobody there at that point asking to to the circus getting concerned about people wanting to observe it they expand that to four by four and claim it's all of them and that's when the question comes in about whether it's legitimate your honor i think without getting into precise dimensions i think there is a point at which and there is certainly a role that the court has to play in examining whether the exclusion from that area is legitimate are we looking at legitimacy or motivation other words and i'm just trying to understand what the test would be the opposing counsels as normally a court doesn't fly specked the government's determination that this large an area for law enforcement as opposed to this a smaller area i mean we we normally wouldn't say the crime perimeter has to be any yards and any ards so are you saying that because there's a question about the motive for putting up the ropes that that's what trigger is the legitimacy issue or what are you saying they're actually both your honor and both could be reasons for finding a first amendment violation so viewpoint discrimination absolutely is a question that has to be addressed and tailoring involved as well and there are tailoring well narrow tailoring would apply to if there were some sort of content based based discrimination for example used loosely you know narrow tailoring there has to be some a valuation and even if you live you look at a case  for example the case involving a highway overpass and signs hung from it even there the court and this is undisputedly a nonpublic forum the court even there looked at the reasonable us on the relationship between the restriction and so that would justify i mean the nar tailoring would be to justify content based regulation but we aren't and here you're i think we're at that point yet is that right i mean what your position is that there