difficult applied the correct standard in this record did not apply the correct standard the correct standard is whether the city's restriction is reasonable in light of the purpose of the form and whether it's viewpoint neutral but there's testimony accepted by the jury and his testimony was that they allowed some comments and some comments they didn't that's ok as long as the distinction is that viewpoint centered and there seem to me to record here supports a finding that viewpoint neutrality the district court said they were picking on him basically and he was singled out and is that the test for viewpoint neutrality give us give us that the case law that says what viewpoint neutrality is body and not allow a pro sanders despite such more an opinion or ideology aspect rather than singling out someone because he's perhaps a frequent flyer or created a disturbance he had i mean a sheriff's office was i was waiting for this guy he didn't he'd been a pain had an eight hundred guy and he'd wanted to make this noun and he'd gone to court and he'd let the sheriff's office know he wasn't happy and it was not pretty much it  that he wanted to speak and what he wanted to say what well perhaps no but when he won this thing doesn't matter what he does if he was cut off was beaking because of what he was going to say as opposed to the fact of the speech itself believe could cause someone rd party say to say i'm not going to get involved in this and they went on to say people sometimes didn't take in those men and that would be if for example say that morning someone got a bankruptcy and promote sales this is a share of cell form and get the most money and get the most money the benefit of the people person being for the center so the bank doesn't take it back etc etc correct in that sort of for i mean if you if you hid that fact from a buyer in a private transaction would be frog right i i'm not sure if it would be fraud but i've but i do accept that it's relevant so i can't why cannot a seller say hey he's not saying look the pain is bad neighborhoods bad i haven't done the carpets in twenty years you don't want this it's not work he's just saying look there's a declaratory judgment action you should know that because this is a this is this is a form for cells there are hundreds of people at the cells there are hundreds of cells taking place if every person did that the cells would not occur that's point number one you're point number two is is there were many on turns there were many adequate opportunities to make that point before the sale it's not like this is the only chance in the world and i don't think that would matter anyway but mr quarter i had many opportunities to to autumn of that what he was trying to do is protect his wife's interest and you have many opportunities to protect his ways interest he pursued those opportunities he lost it th opportunities it but as i understand it that the banks lawyer was supposed to come and make that announcement if that had happened with the banks lawyer have been allowed to make the announcement i don't think so your honor i think that that that the whe seems to me is a dispute it would not come it's your board well i think that's that's what we are debating but but i would in response to judge poorest question i'm saying that that  quote this is on page twenty three of the opinion not not of the joint appendix but of the opinion itself as the court mentioned repeatedly the uncontroverted evidence was clear that the sheriff's department had a policy  then this goes back to what i was saying your honor there's no linkage between even if you accept mr choose testimony there's no linkage between mr choose testimony and the city point number one and point number two is that's not a viewpoint anyway it the policy isn't it is however it's formulated is viewpoint neutral it can still be applied in a viewpoint discriminatory fashion right if they were if they said my motivation is to stop that guy because i don't like the looks of him i don't like i know he's going to say something i don't like it can be applied in a discriminate viewpoint discriminatory manner it could be right and you're right but the makup that would be a claim against the mitchells and they brought claims against individuals and they lost the claims against individuals you can't have enough to having applied can claim against the policy maker you have to show that the policy maker acquiescing or embrace that viewpoint discrimination there's no proof of that so you're just point out again they did have a that violation causes damage and there was a wink the put an affirmative link between the violation and the seven hundred and fifty thousand hours worth of damage but the problem is and yes to show that that was reasonably foreseeable superseding intervening steps and in fact clear his own closing argument so that said that that what it was this is page nine hundred and one of the joint appendix it was completely out of their conduct that was was according to plan out of character weird and never seen before so how could a policy maker for see that the policy of no comment would lead to violence most likely what would happen is if there's a policy you ask good morning your honors may have based the court ever present be at kelly james for you with me today i'm going to jump right to the issue that this court seems to be most concerned about which is the issue of form analysis and i would submit to the court that while maybe there is some room for clarification in that particular area this is not the case in which to clarify it because there are two things that are consistent across the board no matter what form you're in and that is a restriction has to be a point neutral and it has to be reasonable and based on the evidence here and the case is that this court asked us to review this policy fail both tests miserably how was this speech suppressed merely because the public officials opposed the speaker's  view point what was the view point it was out there the speaker had that that they were kind of crass it was very well known in the sheriff's department that there was controversy swirling around this property and that mr porter's viewpoint was his family had an interest in this multimillion dollar building that was going up for sale they knew that was his view point and shoot testified that based on that no known viewpoint he assumed that part of my trying to stop the sale but aren't you equating viewpoint with anything somebody wants to say i thought viewpoint neutrality had to do with opinion or ideology or someone's view on an issue it it was his view on an issue knew was that the prop there were there was he had an interest in the property and that if somebody was going to buy it they were going to take it potentially subject to his interest that was viewpoint that's that's a statement of fact i mean if he was going to say the sheriff's department you know thwarts everyone's ability to speak a is against the sheriff's department and they're doing this all wrong etc etc but he wanted to make a statement of fact didn't he well what you want to get that you know there's a mortgage here how is that a viewpoint what he wanted to say is very different from what who thought he was going to say and to testify or shin st well that's where i'm getting to to testify that he stopped him because he thought he was going to try to stop the cell based on his viewpoint so  and that's a valid i mean presumably the sheriff's sale would have a would be reasonable to say you're not allowed to say stuff that's going to going to stop the sale but that's not a viewpoint well i agree that's not the point and that was and if you look at the curb its case which seems to be the most on point out there there was what they call it clear constitutional right to object to the sale but that aside that's not what he was doing and choose to do that it was mr porter's viewpoint and it is a view point because when you say you point the way the supreme court has identified it is opinion or ideology for in say a held belief if you will and i just i guess i still having problems after the fact that the to this estate might chill the sale which doesn't even make sense because if porter did have an interest in the property he would want it to sell for as much money as possible so he had to nobody speaks out of that share sale the pirates are there like i'm a kid in the middle to speak and some people want it depended on what they wanted to say but nobody never heard that are you going to well nobody ever was some people were asked to sit down but nobody was ever violently attacked before they mr porter and mr porter's testimony along with a number of other witnesses including city witnesses is that he was violently attacked before he even had a chance to speak so it was an extreme reaction that had never happened before that in itself suggests that there's something more the testimony established that wasn't entirely true and those recordings encourage a group of thugs that's because they all admitted there's a policy there is a policy the problem is how it's in force and enforcement of this unwitting policy bishan carries with it the opportunity for abuse discretion it must be guided by objective workable standards more covert forms of discrimination a result when arbitrary discretion is vested in some government authority that makes the policy unreasonable and that's exactly what we have here it was entirely up to mr to decide if how and against whom he was going to enforce the policy and he testified it depends on what they want to say i won't let them say anything that will chill the sale which is another word content based i'm not saying that's the viewpoint i'm just saying he would restrict some of forum relevant speech if it was pro buyer but he would allow for irrelevant speech if it was  and there's a difference between content based and viewpoint based in rosenberg the supreme court said that viewpoint based restrictions are that which discriminate on the basis of a specific motivating ideology or the opinion or perspective of the speaker and that is viewpoint based as compared to content based which is permissible isn't this content based what he was going to say the content of it as compared to the view point  content based restriction in a limited public forum and then and this is a limited public forum depends on the purpose of the form if if there is a policy against letting somebody walk in and talk about the party they went to last night that's a valid restriction and it only needs to satisfy a reasonable standard because it's against the purpose for which the problem was opened here the restriction potentially isn't forced against forum relevant speech so it has to satisfy a higher standard we do this really but it's not viewpoint still i'm having problems with viewpoint but i want to parrot it and what are you how should that city formulated policy in a way that's reasonable and viewpoint neutral but still allows the sales to go forward so going back to what i said ten minutes ago i can understand the city's not wanting people to say look the elevators don't work well you know the windows leak it's a bad neighborhood and all these subjective thing he just wanted to make it a top point about the cloud over the title where they draw the line well the st big step in that progression is to actually put the policy in writing instead of leaving it to the discretion of one city official to decide public course that that's the problem policy without limits on the discretion of those persons and forcing the policy but the policy itself is ok so assuming that it is taken that this was opinion the parsley becomes in the individual's application of their policy in a but it i think the city is the one that gave him the discretion to do it so that was part and parcel to the policy that's the only way it could be enforced because it wasn't in writing so they had to be somebody who enforced it in the city that mr to make that decision when and if he was going to enforce it which in itself makes the policy unreasonable so are you saying there really is no there really is no policy no there is a policy the policy is generally we have a no comment policy you know animists testimony was virtue of the fact that you're saying the city let someone else go rogue with it maybe maybe that undercuts the fact that there is a policy that's in forced and in play i don't know well to the policy i mean it was undisputed as we said in our group that there was a policy and their share of dealey testified to that and she was the policy maker and the testimony was here's the policy mr to enforce it so given that the city trusted mr as an agent to enforce this no come policy that's the policy of the city that mr to gets to enforce it so the part of this it was the city's policy the policy was not reasonable and in this case it was not viewpoint neutral so when we're talking about form analysis while i would love to get into that discussion i don't have time but we don't get that far in this case because it doesn't matter what form you're in you can't be viewpoint discriminatory and you can't be unreasonable and this on its face and reasonable policy here it was unreasonable as applied as well but we don't even have to go to that step because under minnesota voters just the fact that two was the one who got to decide made the policy and reasonable the rd reason i don't think we get to form analysis is because here there was no objection all of the parties agreed that it was a limited public forum and all of the parties agreed to the standard and the jury instruction which mr judge belsen took begum from the problem galina case so even the city was promoting the limited public forum of the city promoted the standard that was applied nobody objected to it so even if that was somehow error and i don't think it was it's both waved and it was actually invited because nobody disputed  that's a rd reason i don't think we get to analysis to form analysis in this case of we if we find the standard that the district court used following the lena was wrong even if the parties and the judge all agreed on the standard i mean you can still be wrong right well but judge belsen was bound by going up that was binding rd circuit precedent he had to follow it i think it was proper and i think i'd love to get in discussion of the kramer case because i think the kramer case is the one that helps reconcile what appears to be just the discrepancies in the cases but under kramer just very briefly the library there was a limited public forum with a set of rules but the standard that the court applied in reviewing the girls depended on what the rule was so if the rule was consistent with the purpose for which the library was open which as prohibiting disruptive conduct then it applied a reasonable reasonable standard just like in a non public forum but if the rule was the one based on personal hygiene the court said that potentially you're going to end up ejecting somebody who's actually engaging in legitimate st amendment activity that serves the purpose of the farm so we have to subject that will to a higher standard of scrutiny as if it were designated for traditional form so in a limited public forum and i think this is where some of the some of the confusion appears it's not the nature of the forum that you're looking at so much as the nature of the restriction and here the nature of the restriction was to prohibit forum relevant speech so it has to be subject to a higher level of scrutiny than nonpublic forum unless you've designated it as a place for speech and reasonable and viewpoint neutral are you saying that because galina was the case law at the time that we can't say that it was wrong no but i'm saying it's not wrong it's not wrong based on kramer well that was a different situation i mean that was a that was a it was a designation the speech here we have a situation where it really is a nonpublic forum it's not a place for speech well it can't be judged on their standard though because the restriction is implemented in such a way that it is potentially contrary to the purpose of the forum in this case and that the announcement mr porter wanted to make was directly relevant to the forum but they restricted it so it has to be subject to a higher level of scrutiny and cramer and i will say this what the money is there that says the policy was that there was a place for some speech it was the that that was the policy i don't think i said that but i mean there was testimony that people did stand up and make announcements there was testimony were pulled aside sometimes they were asked to sit now the testimony was they made their announcement they were asked to sit down or pulled aside but they weren't there was no testimony that people actually did address the crowd without any ramification well i think there was i mean if you look at all the city employees who testified they all basically kind of said yes sometimes people do sometimes it happens in fact even darrell stewart who happen to be in charge of the say all the time said it happens yes people mak a content based restriction is fine if it's reasonable in his reasonable if it's content neutral i don't hope galena seems to me to be internally inconsistent and i don't know why i'm curious to know why you think it's it makes sense well in the restriction was potentially contrary to the purpose of the farm he was a city council meeting to speak to a subject relevant city caste mean she's doing it the wrong time so the restriction was potentially rated purpose reform so the court applied a higher standard test which i think is appropriate especially if you read the kramer case so while i think the language has been less than clear in some of these  standard because the restriction that it was addressing was one that ran contrary to the purpose and so when you say the sheriff's sale was a limited public form what you mean by that is that it's not mom public and it's not designated but it's something in between absolutely because there are four not three categories yes and the definitions are very clear if you pull him out of all the cases and set them side by side they are different they are not the same and i will i will say and the case in a footnote six to a footnote  interchangeably and as of two thousand and fifteen it was still defining for separate categories but didn't it in minnesota voters set forth the three for the free types the traditional public forum the designated public forum and the non public for i think that minnesota as with some of the other places i think they define a kind of based on what the restriction says to me where the limited public forum falls on the spectrum depends not on the form as much as on the restriction so some  apply one standard and some of the cases apply the other standard and they don't clearly explain why they're doing it although that does define a nonpublic forum in a way that suit it seems to fit here and that is a space that is not by tradition or designation a forum for public communication and says the government has much more flexibility to craft rules limiting speech wouldn't that wouldn't this fall in a nonpublic forum no i would suggest that definition excludes this from being in a public forum because it was open to the public anybody to come up like but wasn't isn't a share sale by tradition or designation of for him not a form for public communication it's a form for share  sales much like a court is a forum for judicial proceedings it was a forum that was designated as a public forum that not traditional was not a traditional public forum with a limited purpose but it's designated as a place for exchange of ideas or just need for communication and guess where the confusion is bumping it well and the designated forum is it's not traditional obviously but the government opens doors and says come one come all come in and speak right and i learned what this was you're saying you know in a limited public forum not traditional but the government opens its doors and says come in and talk about this particular subject or just committed don't talk what that but based on the purpose of the forum the limited purpose of form any restriction that potentially runs counter to that purpose has to satisfy a higher standard but it is what communication did it did they say come in and speak in the sheriff's context what what was the limited speech with and it didn't say because it's up to two to decide i mean both of the foreclosure attorneys and the foreclosure judge all believed that this was a relevant a court announcement and assumed that there wouldn't be any problem making it they all expected this announcement to be made but edward chu was the one who got to and he's the one that did the trooper in his favor well the jury found against him on i believe it was retaliation if i remember correctly the jury did find against him that that's not part of part of the case here but but the judge instructed the jury that this there was a constitutional violation here clear i would submit that the judge instructed the jury because the evidence was undisputed both that the policy was unreasonable and that it was not viewpoint well i'm not saying why the judge should but the judge instructed the jury that this that this prevention of his speaking this prohibition violated his constitutional rights judge instructed the jury that if they believed porter's testimony there was a violation right away his this one day right what happened on that day but the the purpose of the sale was that buying and selling the property and his announcement was directly related to that purpose and he was immediately silenced and wasn't allowed to say anything and then again if you look at the curb its case which i think is the best case we have the western district of michigan affirmed in the th circuit concluded that he clearly had a st amendment right to show up at a sheriff object herself because it was far moment speech this was certainly formal and speech and he wasn't even objecting to the sale he was just trying to figure out when with these issues and the judge made a conclusion a legal conclusion that there was necessarily a violation constitutional rights is this the kind of case where these issues was it content was it viewpoint neutral was it reasonably related was there you know what's the nature of the policy these types of things are typically jury issues as compared to judge feels and saying i'm instructing you this was a violation of constitutional rights if you believe porter's testimony wasn't that error on part of the  i don't think it was i don't think it was because given the evidence and much of which was undisputed and given the fact that i believe the stricter scrutiny standard applied the city presented no evidence whatsoever that its no comment policy was narrowly tailored never mentioned it went merrily taylor isn't doesn't oh you're still under a different forum them and i'm still thinking nonpublic or a guy and also the city presented no evidence that there was any alternative forms of communication let alone ample alternatives and the evidence established that there was no alternative because he had one opportunity to let potential buyers know that there was this federal declaratory judgment action pending this was the only opportunity here saying it's not just a matter reasonableness and viewpoint atrocity you  category as a nonpublic form so is that we certainly made that argument and ultimately i think it pretty clearly is nonpublic formin in the sense of the least restrictive of the types of a forms because or the government can restrict speech the most and and even when it is is a slightly different case in that and that could mean it did open a form in the middle of the city council proceedings for speech there was a speech form within the city council proceedings there so that that that was properly decided in terms of its result but even in this case is is should give broader rights to the government because there was nothing open to the public here well that's the policy but couldn't a jury find after hearing all the testimony that has applied the government sometimes data allow people to speak perhaps individuals did yes not to not not in the city but perhaps individuals here and on that point you're on i didn't hear anything that that that this life argument there and this is also twenty two that the district court's opinion on sales she was the policy maker not mr chu so no matter what mr chief said about what he did he don't he doesn't speak for for the city's policies and regardless we do not believe that all these cases talking about how there has to be a discrimination as to ideas or ideologies and not not simply a fact so for these reasons the court should reverse and enter judgment on the