i figure on a good morning for police officers violated mr jackson's rights and three principal ways they refused to protect him from his hapless instead encouraging the hecklers to disrupt and corrupt a speech unpopular speakers and open public forums by rolling up the police could not take the side of those who are hostile to the speech but had to protect the speaker to let them talk these cases reach their climax in the civil rights era when the supreme court pays the police arrest the speaker because of the reaction of the crowd but in this case the police gave the speaker's own conduct as a reason to arrest the and open public forum that's the hector's veto part they were heckling him and stopping him and talking to others and having his speech on but the university responds that this is an open public forum for other people to speak as well and so to somehow protect mr jackson from the other speakers they would have to shut down the other speakers speech i want to make clear that that is not our position we're not saying the police had to shut down the other speakers we have to say they have to stop disrupting the speech that was taking place and which was the perspiration and the open public forum  i think your argument on the facts essentially is that the police could have let the students use their counter speech against mr jackson but they let the students get so close to speech of others which is exactly what the heck are for doing here and the police officer on full and fair notice that this was what the law required their conduct showed it on day one the authorship eally move hostile kept speaking to another student and was this sort of dismissive of mr jackson which is that part of your part of your claim that that that shows that the officer was not at all interest speech rights well that's part of the trotter and the facts are worse than that because mr jackson went over to ask for help from the officers nestle's if he allows us yell in my ear like that help me here the students came as well they have pushed same as well and said can we keep on doing this now with us we don't touch it was ok officer cowan turns to mr law one of the hecklers and says yeah and then as you point it out he then turns to mr jackson and goes like this in the back of this hand so at that point what happened is that with that green light heckler sit right in mr jackson's space as judge jordan was saying the district court doesn't mention that mr jackson repeatedly asked the students to back off and to get out of his face the law told mr jackson that he wouldn't or the law said he was getting card right before the arrest they did that again mr jackson loudly and repeatedly asked law to back off law said he wouldn't and i'm mr jackson backpedaled away from him several steps off all of them step for step saying right in his face and not allowing him to talk to others the government depends on this was just a point counterpoint debate going on that they were was watching it wasn't the it wasn't that at all it was  court makes three major errors with respect to the arrest versus last the facts against mr jackson is that it taking them in his favor is to court doesn't mention that when mr jackson had turned to the side and then  racists are to try to continue preaching this time instead of a lot of voting the arm ilene's senate lets it brush ever so slightly for a touching to be a battery under georgia law your honor it must be done intentionally and it must be of an insulting or provoking nature just brushing against someone when you're looking the other way isn't enough now to make it sound intentional officer cowan called this touching a strike and has written the arrest report and the district court picked up that language as well of course if the officers in their brief but talent right after the arrest tells a fellow officer that jackson only brushed against contact between a child free speech i don't understand you're arguing that it might not be as it's not inherent it's all your honor otherwise the requirement for it to be insulting ergo he wouldn't have to be in the statu but it is well know what i mean by my point is i understand if it was you know if there were people in the crowd who were just jostling one another trying to get a better view that might not be insulting but we're talking about two people who have been yelling at each other and free speech zone one to just call the other her blouse leave the space seems and like i said the police officers have just told them don't touch each other the rules of the free speech zone is don't touch each other and then there was this contact now i've seen the video i think i think i understand your game but whether the contact itself was just fishing i understand that arguing but i really don't understand that one well there are two responses as a matter of law your honor one of them is that under georgia law you can't it can't be evidence so thing of provoking nature if it's defensive if he was acting in self defense and standing his ground so as a matter of law georgia supreme court said that's what's happening there is no crime at all it can't be insulting and provoking the other point i want to make quickly is that under the the supreme court said that when declarations of officers in support of summary judgment motions have evidence or yaps that itself requires your question please one of the arguments you make in the brief it's not the only one of course but one of the factual premises for your constitutional argument is that mr law and maybe one of the other students had already just bumped mr jackson right now here on the video is not all that clear about what you rely on the video or do you rely on mr jackson's testimony to that effect or what i rely on both your honor and that brings up the point again the facts have to be taken at this stage in mr jackson's favor it wasn't mr jackson who was running around trying to get in the student's face it was mr law and mr ackerman who were running around going under his arms and getting right myspace so he couldn't talk with others they got right up to  they're the ones who got there the initiators now from the from the angles of the camera it's very difficult to see ok exactly what happened it's clear from the camera that they hit three times but it was mr law who was the aggressor it was said the law was the aggressor and he just bumped him three times so so yes that have to be taken in the light most favorable to mr jackson the supreme court's and scott versus harris you don't have to accept our version of the spectators also were aggressive towards the speakers but i didn't see any indication and you get your video where any one touched whether it was a speaker or key to a firm s of that claim is the standard that applies which is of course argue probable cause well let let me let me ask a question before you dive into that part of the argument repeated here at oral argument that mr jackson contends that he was physically touched he was contacted by mr law and maybe mr opperman because the chest bumped him if that is the case because we take the little evidence in the light most favorable to the plaintiff and by the way i'm not sure the video is key but it certainly doesn't negate mr jackson's version of events at least in my view how are the officers justified in arresting mr jackson for a touch and yet not interfering or doing anything when law touches jackson before that may not be insulting or provoking with your chest well they will be correct but when you look at the bigger recordings contact is not shown between the two gentleman i understand the video recordings that are are at an awkward recently stated a high as that actual probable cause bar so are probable causes an even lower bar it requires only that a reasonable officer could but not necessarily would have probable cause existed so to state that somewhat differently mr jackson has to show that no reason officer would have believed a battery occurred and he key cannot meet that high burden here based on the video evidence when you look at their earnings it shows that mr jackson raised his hand and his arm away from his body better but again i think the course president has clear that if it says don't defeat qualified immunity in this case it what do you do about it and you may you may ultimately prevail in this case given the state of the law but let me tell you from my perspective the police officers did not cover themselves in glory that officer cowan writes in his report that there was a strike and then it turns out that there was a touch or a brush and then officer cowan is heard in the video saying quote unquote we hit a home run and we took him down and that is not something that does not speak very well of law enforcement the university of georgia and and it goes to show it may not be enough for mr jackson to prevail but it goes to show that the police were really doing an objective job out there by letting the two students harass him as much as possible incite him and then the minute that something and a little bit or i arresting the person whose piece they didn't agree with i have two points to  your honor with respect to the comment about hitting a home rhyme that has been and taken out of context starting calland opposed that what he actually sat or what he was cusumano and so his explanation for that comment doesn't get accepted at summary judgment it just doesn't and i understand that except as if there's a video recording you that refuse that that version then doesn't it doesn't because it's his explanation for making that statement it's his statements well your honor if you look at that video recording in that particular part of the statement he is clearly saying that it was in the white he hit a homerun and he was an early describing the situation you know i will i will admit that certainly the officers it may have been prudent for them to have intervened here  the problem though is that the issue the issue also is that when you watched day one when you have the students who are clearly in the face of the speakers on day one and there clearly going to try to touch the speakers the officers very very quickly tell the students don't touch  and they did not know the ground rules and so the officers were educating them on what they could and could not do i actually i don't understand why they have to be ground rules we have a st amendment so anyone can say anything even if it's  occur and they had to explain to the students that book you you you may be fine is the bins but you cannot you cannot touch these creatures the nd day is different because on the nd day we're dealing with mr law and mr on had already had a conversation with the officers told him you have every right to infringe speech but you can't touch him and  the officers on that nd day that he understands that that he's not going to touch mr jackson and that he merely wants to counter bait howard to bait with mr jackson and and i any person in society has a st amendment right to scream in the ear of someone else yes your honor i do you you do realize what what principle what principle of law debate on public issues should be uninhibited robust and wide open it's neither of you felt they are on the opposite side you have a right to protest even at funeral but you not asking about the substance of the communication i don't i don't dispute the right of the students to say what they wanted to say to mr jackson my point is what as an abstract st amendment matter what gave them the right to scream in mr well st of all i don't know if you're recording show any evidence of screamy and mr jackson's ear and there certainly is there certainly yelling and elevating their voices but at no point do they get right to mr jackson's mr jackson and to that point was a strong point that he wanted addressed he waited for the end of that conversation to ask his question instead he turned around and he left  to intervene attacked one speaker at the potential jack detriment of another speaker that i think law requires everyone to be engaged and  put put qualified immunity we have the we have the option in this case when addressing qualified immunity of also addressing whether or not there was a constitutional violation before getting to the qualified immunity too little a time for you yes your honor given the fact that mr jackson was speaking for forty minutes that means he had thirty seven minutes of exclusively expressing his ideas and if i see might if he had been if he had been bothered or accosted by mr law for ten minutes would that be enough your honor i'm not sure there are new guidelines to to show what would be enough and that's the problem here and if i may continue for just a little bit longer you know i think a st amendment violation here would be problematic because what is the line f in a municipal liability case you don't have the issue of qualified immunity and you also don't have the issue of clearly established law if the municipality has a custom policy or practice that violates a constitutional right and meet all the standards of mono liability then you're on the hook it doesn't matter what the clearly established law what's that's sort of the trade off the supreme court has created with supreme court iterated that print decades the laws been clearly established that a police officer cannot arrest someone because of the content of the speech that's called a retaliatory arrest now what they're talking about and most in an airbase is they're up or to such a suit because the police have probable cause independent of the retaliation for independent non speech reasons and if so you can't make your causation proof so you have to dismiss the suit that's not going to the subject matter of the retaliation that's what has to be clearly established in the supreme court so this has been clearly a stealth so here you must apply the exceptions that both lowson and you have a point out one for premeditated the session to snuff out this meet another for showing that hey they don't arrest