good morning arnold justices of the judges i should say of the ninth circuit my name is tom reilly i am a senior citizen city attorney for the city of sparks we are appealing this first amendment case  based on what we believe is improper law applied by the district court judge this case deals with a kind of a narrow aspect of the first amendment and that is the right to sell merchandise in the public fora and this particular case applies to essentially all types of merchandise the first amendment you're aware of specifically states initial point i'd like to make is that you have to be very careful with the terminology that's used in the first amendment cases i was initially very confused and it took a lot of sorting out to figure out what these terms meant but in the case law of the u s supreme court this circuit and other circuits who will use the word protected  any artistic or materials or expression any type of expression you get more narrow when you get into the term fully protected and the case law refers to fully protected as essentially the equivalent of speech if it is fully protected merchandise for example has got to be given the equivalent speech whether it's pure speech or whether it's merchandise that contains speech for sale in a public forum we have limitations on commercial speech both in our city parks and in our downtown core area cynic in sales anywhere else within the city we do acknowledge the first amendment we open our our one of our parks is deer park we opened it to the pagan  festival which are individuals that are in groups that worship pagan symbols and it's their thing but it's a religious right and we acknowledge that open it up and allow the sale of their merchandise all this is not a case where the city is acting contrary to those who want to express their freedom of speech we're trying to just make sure the speech is an issue  value wait to see whether it is or is not speech when it's an artistic piece constitutes a prior restraint can you it absolutely what we have point where its main holding which is that merchandise offered for sale in the public fora has got to the message bearing that in order to qualify for sale in the public for those messages come under four categories political religious philosophical and theological very broad categories the city of sparks when confronted with this  lawsuit actually we heard about a similar lawsuit was filed against the city of rio we spotted what was going on over in reno and enacted our own policies on the administrative level to deal with somebody that would come in and request to make sales of merchandise in a public forum in doing so we created a committee to review the merchandise proposed for sale to see if it contained on its face a message that fell into one of the four categories or if it conveyed that message either on its own in combination with the speakers the proponents own statements pertaining to generally his organization is beliefs it could also be we had no idea how what merchandise was going to qualify and what merchandise was not if you simply take the proponents viewpoint everything's going to qualify and there is a lot of merchandise out there that they would claim to be protected or partly fully protected when in reality it is simply protected  that is less than for the fully protected your honor that there is a difference the protection when you see matters that are referred to as  constitutionally protected and the plaintiffs the whites counsel uses these distinctions all uses these terms all the time protected under the first amendment constitutionally protected  and similar terms those are terms that are referred to in the law and the case law dealing with censorship and they are increase incredibly broad they are almost all encompassing virtually everything falls under the prohibition against censorship and almost everything is protected now the term fully protected in the case law refers to in the case law dealing with merchandise sales that's my specific area of talking about in that particular area the term fully protected means that it is the equivalent of speech and therefore therefore is entitled to the same protection as speech and must be allowed in the public for what occurred here in this particular case pleadings i thought oh boy we're going to do something over here because we're next and so we put into place this review procedure because guyana neva gave us no guidelines on how to implement the we would have applied it here if we had been given the opportunity however the artist quite simply went to court file this lawsuit and made a facial challenge against our proposal at that point policies those policies by the way have been put into the form of ordinances and rules and regulations for the parks department which manages merchandise is qualifies unless you find that the merchandise qualifies under the first amendment as fully protected for sale the court the district court in order to say good of this neighbor did not make any presumptions that merchandise was automatically fully protected there is no such automatic qualification as fully protected somebody has got to make that determination in this particular case that the district court adopted its own new standard that  common understanding of the words that are used and any implicit abstract expression that may be created or discoverable or ascertained from this merchandise the court or the district court then went one step further and said ok i'm going to apply the new standard implicit abstract expression to the ninth circuit test and we're going to also make a finding that all of mr white's paintings qualify as fully protected under the first amendment only by instituting that new uncalled for extremely broad application to the guy out of the action of a test could the district court find that these that the whites materials whites paintings were fully protected once it found they were fully protected if then could find that any restraint on their sale would be unconstitutional if the the district court creat its own means of finding unconstitutionality here only by violating that's how the prior restraint was found one of the big questions before this court is whether or not local governments are going to be able to make the initial  termination of whether more the merchandise offered for sale in a public forum is fully protected on its face or in combination with the proponents  words other pure speech or whether the court is going to say and hold no local governments including i guess all governments federal state county and city all on property that could this could be a political to local these government units cannot make that determination only the courts can make that determination think that it it goes against the the president of this court even that court held that local governments should be able to make some determination of course any determination they would make would be pre very well aware must be followed by local governments we try to follow that law and the only way we can follow that law is to try and find out who took to analyze it and see if its message bearing tell me same standards to both areas same standards but victorians where as pre selected who it is you'd turn to to make that evaluation the review committee handles all of the questions  has been full of a lot of the city's restrictions dealing with commercial merchandise but in the victorian one of them has a list of of criteria it has to specify a specific list of criteria the other seems more general is that ac that the review committee has several things that it must do and must fall one they must apply judicial precedent existing at the time of the review it must use the dictionary definitions of the four terms used by the ninth circuit and got a vision a the religious political philosophical and ideological dictionary definitions have been the staple of  interpretation of words for ever and are very solid in the court and the other one other i aspect they mostly use common sense which is a struct hand term for logic and there are things that are not logical out there and common sense does have an application to these types of matters and the other to prevent any unbridled discretion being exercised by the court committee the committee has at least three members no one person is going to make a decision one of the members has an assistant city attorney so they were proper judicial precedent can be applied and the other  non legal members of the committee can be overseen doesn't the decision of the committee have to be done to record and attain a legal opinion regarding the decision whichever way it goes yes and why is that important the purposes of judicial review if the if the applicant wants to go to court we've got a record and it just is just to protect the city well it if i understood correctly you obtain a legal opinion from the city attorney's office as to the decision made is that how it works there the attorney that is sitting on the moon explain the attorney that is sitting on the panel on the review committee would be the one to make the legal opinion it would be some precedent that existed at the time yes and the application of the definitions of the four categories also in i in that there is a review committee there is a proper administrative appeal to the city manager and of course just judicial review is available so i think we're trying to do whatever we can to prevent unbridled discretion nothing wrong mr white never submitted one of his paintings to the city to any city employee to have facial challenge exactly exactly he made a facial challenge prior to the time that his any court or any city governmental agency had ruled that his paintings were fully protected so if can make a facial challenge anytime you want you're going to be varied in cases you have specific authority that i outlined in my september first two thousand and six rule twenty six twenty eight j supplement specifies clearly that unless the constitutional right is firmly established you can not simply run into court and make a facial  he's claiming that this is prior restraint and there's a lot of law that prior restraint i know that's what they're claiming again i would simply reiterate that the only way the judge co restraint was by applying his own new implicit abstract standard find that the matters are within that extremely broad category that includes a lot of things that are not speech and that's the only way you can find a prior restraint he can't he can't find a part restraint by the city because the city didn't do anything the city's laws on its books were legitimate he never followed thank you my name is terry kaiser cooper i represent appellee stephen white there are five reasons why the district court opinion should be affirmed mr white paintings are purely expressive communication in purely expressive communication no particularized message is required sparks policies regarding his committee represent content based restriction on speech parts pre approval committee there be a form of something that takes a visual display that doesn't qualify as protected expression like the easy one first take for not graffiti even though there's a visual expression there i take it we can see the city has the power to limit somebody's who's using just well on a graphic photographs in the park of course there's a long history that congress has not protected by the first amendment so certainly  is there a kind of art that might be not pornographic but not necessarily qualified for first amendment protection because it's not expressive well there's two ways of looking at it and you can the way the master of incense here case looked at it looked at to find out whether certain items in that case it was graffiti art on hats and on t shirts and the question was were these protected the court very simply said  does this item contain an expressive component if so is that the dominant purpose of the item if yes to that then it has a high claim to first amendment protection if you know it can be regulated as  commercialism so at least at some point there's something that can be regulated as as mere commercial absolutely i'm sure after that point how is it what can the city do to say concede that the city hasn't tried to go down that road and i don't say they're trying to go down that road the question is their position and i'm sympathetic on one level in that they don't want to turn the park into a shopping mall and if there's something that isn't deserving of first amendment protection they're trying to control that even as they're purportedly trying to cite anything that does qualify for a first round of protection ok we'll step back we won't do anything not even time place and manner so they're trying to find the line someplace and apply the line is there any way they can do that that wouldn't constitute a prior restraint under the argument that you've offered not for items that are purely expressive communication those are incentives that c standard i understand that i'm moving to the other part that is the procedural one the prior restraint argument what is it the city can do if it applied the right standard with the process that they've got be inappropriate or would the process be appropriate if they apply the standard that you say they should the process would be inappropriate under any scenario well no that's not quite true i believe that they could use what do what the master of incense you know court did or what the very court did in both of those courts they were faced with a determination of how to regulate if to regulate what to do with expressive materials expressive materials that were purely communicative and others that were intertwined with a message that had an intrinsic value that was either the spirit communication in master of incense you know they use this dominant purpose test sparks can do the same thing sparks doesn't need to have any confusion they can look at an item and let us know that you're expressed even if your expressive will step back in the coast is clear but if you are not expressive we want to make the evaluation of we don't think that applying this standard you qualify and then we're going to say no and deny your permanent well i think it's easier than that i mean i would also suggest that there's an easier scenario would be to adopt what barry did in new york which was say all sculpture all paintings all photographs and all prints are purely expressive communication they don't qualify then look at everything else now and if they did everything else right to disassemble the case it seems to me without a lot of talk about prior restraint and the process used by the city for me the issue is much more as to what the this is the expression standard is what qualifies for protection because if the city's position is actually a very simple one if it qualifies for first amendment coverage expressive well step back we're not going to try to impose time place and matter most in that the the city or not mean that you know there's a pal of the local government problems that i've seen or where they've got time place and manner restrictions with unbridled discretion and somebody is deciding whether we want to let you do it at this time or that time so for the city here is not trying to do any of that they are making a very simple first tier decision does this qualify a protection order or not and understanding you've got an argument and that the district court found they apply the wrong standard but if they apply the right standard are you really objecting to the process that they're using to apply the standard yes we are because you can't apply that standard purely expressed of communication and that's what they're doing here when this case is really about it is that the city of sparks insists that an expressive communication has to deal with religious political philosophical or ideological subject matter there is no case and there are whole close to first amendment cases we deal with that say that the first amendment protects more than political speech and verbal expression we've we've got music we've got peaceful marches we've got theatre we've got praise with him we have banners we've got all kinds of things going on but in none of these cases does the courts say that the message is used in any of those mediums must exclusively about religious political philosophical or ideological subjects and that is what sparks insist on so you have something purely expressive like mr white's paintings painting is a needy and it's a way to express ideas it's like you know it's like theatre it's like music painting can be as wide ranging in its expression of ideas as any book or any speech there's no bright one and the court found this and it's true between furball and visual expression and you cannot have a committee trying to hide whether or not something is religious political philosophical or ideological verbal and visual expressions don't other than communicative in that case the san francisco ordinance said we're going to take out all books printed up bumper stickers we're not even going to rule on those because they're not up for consideration it only looked at items that had an communicative stuff in with the mugs and the t shirts and the jewelry mr white's paintings are purely communicative they have no intrinsic value other than to express his ideas they are his ideas mr white uses paint instead of words to convey his nasty well i team in europe there are more than merely his expression because if he is asked to articulate his feelings does he get paid by anybody for having articulated his feelings but people are willing to pay for is the particular expression and i visual manner so it's not simply what you translate feisal imitation of language you know people articulate the words everything he's trying to express in a and in a painting but it's the painting part of the visual the is that it's satisfaction that someone may receive from it not necessarily the specific message or expression that the artist was trying to create there is no difference and purely communicative expressions from being paid and not being paid that u supreme court case which i could look up in a second is much like what i'm saying what people are willing to pay for it's not necessarily the idea that can be articulated is the visual ideal or expression i would say that there is absolutely no difference you can look at a painting for example a painting with words and his and his painting which has words on it what what is that there's no neat separation or has there ever been between how you can communicate ideas you can have ideas that as robert indiana's love painting have words you can have images that convey stories but what they d talking about is items that have intrinsic value other then purely communicative if you've got a t shirt for example of president bush on it with a grimace it may convey that the designer of the teacher didn't like president ideas and with items that have intrinsic value separate and distinct from ideas and when those are protected it never ever addresses items that are purely expressive a coffee cup save the whales logo on it may convey the designer's feeling about the environment but it has an intrinsic value as a drinking vessel and that's the deal was about is what are those items the coffee cup with the save the whales presidential characters on it when are those items protected never ever talks about items that are purely expressive because it couldn't we believe that the district court reached the correct result but used some faulty reasoning the district court expressed in its view some confusion it held the distinction between art and merchandise was at times a blurry line and it sa that the distinction between protected expression and unprotected merchandise may be arbitrary yes but it helps mr weiss paintings were protected because they contain a particular mass mr white's feelings as expressed in his paintings all the all with the environment they all deal with mountains and trees and lakes he holds very dear the environment he holds it sacrosanct in his in his mind it is that matter theatre parades these are expressive conduct we're saying that painting is no different then movies theater poetry books they contain ideas they are expressive are selling these stores that sell paintings for forty nine dollars probably color on the wall i got the artist's expression have much to do with any of that it may be just impossible to draw  lines but the notion that anything that comes under the rubric of art is inherently fully protected or is inherently expression it's kind of a tough sell in some of it really isn't expressing anything it's expressing a way to make a little money well that may be your view and maybe when you look at the scribble also jackson pollock that's all you see is trials it's rebels people see all kinds of ideas in art and what we want to stay away from is evaluating that we're hoping this court will find that mr white paintings are his medium pression we hope this court will find mr white's paintings are his idea in visual form we hope this court is going to find that his ideas and paint are protected by the first amendment and his ideas then paint do not have to contain a particular rise message religious political sociological ideological or political you we think you can find that you  ideas or express his ideas when he goes into business makes a living out of his ideas record starts when the line gets a lot harder well picasso made a living off of his art people who sell books make a living off of their books does not mention expressive activity it totally excludes it it only deals with items that have an intrinsic value other then communication it has it deals only with jewelry with has very little relevance to this case and what's wrong with sparks dictionary definitions are please tell me how this would apply under religion and this is under the excerpts of record sparks to seventy two to sixty three they give the dictionary definition religion the service and worship of god so a painting of jesus christ would be all right is long as it's clearly recognizable a painting of a church this cannot be so there are many things that may convey a religion they aren't that may not be easily discernable to committee members what about people sitting around the table celebrating a feast day that may be religious or it may just be people sitting around a table  philosophy this is impossible to discern the drawing that i held up of robert indiana with the words love on it many people say love this about philosophy with the committee we don't know restraint because there are no standards other than common sense and dictionary and that by itself is absolutely insufficient as a matter of law without standards sparks officials are free to interpose their own personal judgment cannot allow that the first amendment has to be allowed for expression of a multitude of idea deals with the with or not products have an intrinsic value other than ours was a test that was put in by the san francisco ordinance and it was rejected by the court in they that in that letter she's one hundred percent wrong on that point it's our position that any piece of merchandise could have  expressive value expressive i mean by expressive under the ninth circuit test it could be a coffee cup i have a coffee cup in my office says my lawyer can be a pure lawyer so i thought ok cute but i'm not sure expresses any first war very clear self definition of peace without if it was the right dove in the right especially in the right posture i want we've got i've got your point even if the words alluding you appreciate your argument