district court erred in denying a pulmonary injunction here although there are a number of issues on the subpoena to suffice to make clear that the district court erred namely that one modest guideline twelve is both viewpoints criminate tory and a straightforward violation of the free exercise clause guideline twelve straightforwardly pants advertisements that promote or oppose any religion religious practice or belief that's wrong i'm up with model allows advertisements on a id of subjects including operating hours tourist attractions charitable giving and christmas it excludes advertisements that address those topics from a religious perspective but how does one moderate the find all i think that some of the likely with you that the fact that guideline twelve expressly discriminates against religious speech is ultimately what matters but in terms of figuring out what is the topic for analysis the supreme court case is teaches directly that for those purposes what matters is the topic the speaker has selected to address and not the topic that the school work the  to allow or prohibit and so let me use chapel as an example because i think that's the best example lance chapel of the supreme court said the relevant topic was child rearing now why did it come up with child rearing my friends when model and the district court seem to think it's because the script district in lance chappell had a specific policy saying child rearing can be addressed but that's absolutely wrong if you look at the opinion what the school district did is it broadly said you can address social civic and recreational groups can come in and talk but then there was a specific policy rule set that said you cannot address religion you can't be engaged in religious activities and that is what the case with the court said is that quoting i think it was rule ten so that the property could be used for social survey can recreational purposes right absolutely and it's specifically focused on child rearing as a topic that would otherwise be addressable in the forum but it couldn't be addressed because of the operation of rule seven which came in and said nope that's religious you can't do it so you can sleep here you can say that these this supposed to analyze this and guideline eleven service advertisements that support or oppose any political party or candidate or prohibited that's viewpoint discrimination too i'm not sure that it is because the i think i mean you know i think my friends at the a c l u in another eleven and twelve other than it says political party instead of religion or religious practice or belief three big differences your honor lance chapel rosenberger and good news club we don't have any analogous cases from the supreme court addressing something like the political parties so that's a harder question it's a question for another case as i said i think my friends at the a it but what makes this case remarkable straightforward for purposes of giving us a point there injunction while the litigation proceeds is there are three on point supreme court cases that address things that are directly analogous to guideline twelve  doesn't explicitly say that you can have religion as a as a prohibited subject matter but you could have in effect content discrimination but not viewpoint guideline there was a guideline to that specifically said that otherwise permissible speech by wide awake is the student publication there was reimbursement because it addressed a religious topic or did it from a religious it could knock it reimbursement because the subject of religion was non germane to the fore but what you can't do and what all three of these cases say it's the other rules for the forum and then we're going to superimpose a rule that says religious speech or religious groups are subject for disfavor treatment but we have to read the whole thing it rosenberg in terms of the fact that the university had placed no limitation and the student organization had otherwise qualified i thought that was key aspect of it so to hear judge rogers guideline twelve there is no question in this case is a comes to this court that we can r the in the case involving the political ad that started this distinction between commercial speech and barring subject matter i'm not going very your honor for  actually look at the guidelines the guidelines don't distinguish between commercial and noncommercial speech this ad was prohibited for a simple reason guideline twelve that expressly discriminates against religion what are the topics or subject matters on which  you want to speak well i would say that in this particular ad there are three subject matters we'd like to speak on one is charitable giving is operating hours and three is christmas and those are the three things that we think this ad addressed we think those are three things that only invigorate silly they never organisation could address from a non religious perspective the easiest to have to look at what the record says in the record says that the primary purpose of the ad was a pendulum right that that may be the reason we were motivated to address those topics but i take the question to be different what if you think of lance chappel being addressed to the topic of child rearing what topics are addressed to you i think it's clear if you look at lance chappell i mean you know i don't think there's any doubt why that group chappell wanted to show the subject of our christmas charitable giving and operating hours or hours for events and again i think if you look at this case it's particularly clear and charitable giving because the salvation army is speech about religion can be distinguished from speech about other subject matters from a religious viewpoint i think that's a difficult the station to draw what i'm most confident of judge kavanaugh is that the government cannot simply say that religious or religious viewpoint even a religious topic and otherwise allowable subjects is prohibited i think if you look at the court cases there are three cases that deal with something like twelve a provision that comes in and says whatever else you can do you can't do religion all three of those cases strike a then as you point to screaming nation under general a general policy that allows a firearm to be used for for a variety of things you come in and say this is the subject matter on which we want to speak is that permissible to talk about that subject matter within the forum and if you asked and then you're allowed to communicate about that from a religious perspective thought that that's right and what you can pick up your rules about the floor and say this is just about transportation this is about uva sports but you can't have a provision like seven in lance chapel like guideline twelve year old i'm sorry to interrupt but what about the original motivation for this which was the prophet muhammad ad how would that fail under your in your position here i don't necessarily think that would be protected by our position here because as i understand that and i don't even think it was really being put in there for a religious reason i think that it was being put in there for a political reason i challenge here doesn't go to guidelines nine and fourteen that address issue advocacy and take that out but we're focused on guideline twelve for the obvious reason is that was the reason we were that we couldn't run that this ad and guideline twelve with all due respect is the whately viewpoint discriminatory within the meaning of those three supreme court cases and the supreme court cases that are to the supreme court has consistently said that content discrimination or matter restrictions in viewpoint discrimination are two different things they have to have discrimination is any use a particular type of content discrimination but not all content discrimination is viewpoint discrimination so are you saying that to decide this case we can still maintain that oh absolutely i think h viewpoint they can do it but what they can't do is say here's the other words the forum this adds but for guideline twelve so if i find it i had my last thanksgiving dinner everybody you know the meal was spoiled because of arguments about the election and i said ok so the stakes giving no one can discuss politics at all at the dinner table is that viewpoint discrimination i don't know that it is and i think that's a harder case because you don't have three supreme court cases that are on point so i have the same one i said you know the christians and the atheists spoke of thanksgiving dinner now somebody wants to talk about sports and so their favorite team is the fighting irish because they love touchdown jesus they can do that because they're still talking about sports the fact that they saw it at a religious reference or even a religious viewpoint is fine but to say look i don't want to hear you talk about religion and that means you can't even talk about sports with a reference to touch them jesus i think that's viewpoint discrimination i thought the point was here there is to be no doubt being religion for example there's nothing here in this record to say that your client couldn't run or wouldn't be allowed to run an ad saying charitable giving well i do think there's something in this on the promotion in other words the text of the god i suggest you're arguing you can talk about football and if you want to talk about a team that has a religious i don't see that this is excluded is not because it addressed the subject matter of religion but because you've crossed the line into promoting religion with all due respect i think you're making my job easier because it's crystal clear scrim a nation and if there's one other thing that not going to spend a whole hour listening all the subjects i'm just going to tell you you can't speak about promoting religion that would not be permitted that would absolutely not be permitted and is it because religion is in a special category  make this case easier than the hypothetical political speech which i think is a much harder case but then again i do think if you think the reason this ad was excluded was because not just addressed the subject matter but that it promoted army did not promote or oppose religion whereas your client's proposed ad did what standard to review we applied that finding you know i think it's a mixed question  fact in law but you know i think i miss record you know i think the one thing i will say is even if it's clearly erroneous one thing the district court said is you don't see the salvation army mission statement which references jesus until you do a couple of clicks and that's just clearly erroneous i mean you can do it for yourself right there on your landing page there's a mission statement that refers to jesus and obviously there's a reference to jesus on the landing page of the find the perfect gift at wor website i think you know reference to jesus is a little more prominent i suppose i mean you know and that just goes to arbitrate enforcement if it's treated as a secular add the salvation army one that supports your point that they're allowing secular but not allowing religious ads on the same topic and that's exactly right and i think that's why the united states and its amicus brief focused so much on the differential treatment between the salvation army and the find a perfect gift advertisement because i think it's a nice specific application that illustrates the differential treatment i do think however that you know i mean you know i think that does illustrate the problem i don't think the problem is with guidelines well it's rotten to its core to be its would be our position it is invalid on its face there's plenty race for them to deal with the problem they're dealing with any time the government tries to limit speech because they don't like the reaction to speech they're getting into difficult  not just viewpoint neutral how do we analyze the reasonableness prong disaster is that the stink from equal protection of free exercise in any meaningful way i think it can be distinct from that and other ways let me say a couple of things about that if i may one is we don't concede that this isn't a public forum i know there's some back and forth about that and about that but let's get to the reason why it's ok i just don't want to say a word about one without saying we didn't concede it i'll give you time on viewpoint discrimination and you can't you can't have one reasonable restrictions on the form so i would say you know there are ways in which the un reasonableness of these restrictions which we very much think they are unreasonable map onto principles of free exercise clause and the like which is you know i think the easiest way to say this and this is really what say justice scalia said in his concurrence in the good news club case is given the free exercise clause to simply say the one thing we're not going to allow in this forum are our punch of stuff we're not allowed a religion that's unreasonable in a constitution governed by the free exercise clause and can be reasonable say work schooling religious speech or religious speakers because of religion no i don't think that will ever be reasonable but i also think the independent reasons why there's a reasonable us problem here and i would just focus on two one is you know the test for research on this is supposed to be based on the purposes of the forum the purposes of this forum as i understand it to raise money and in that context to prohibit every religious speech that doesn't seem particularly reasonable then the second argument along those lines that i'm that they're they're concerned about  a reaction i guess the original genesis of this was the prophet muhammad and then surveys where riders said we don't want to be bombarded with religious ads and other as the we don't  does that make it more reason was that something we should take account of for how do we factor that work that segues into my second sort of case specific reason why i don't think this restriction is reasonable which is those right or service they relied on did not say a word of that religious  speech and religion with all due respect i don't think that's good enough for government work i think in this context if you're going to take that step you need to have evidence that one specifically to the idea that religious ads  fundamental problem with having a restriction that just says no religious speech that's just first say not reasonable under the constitution would be our position but it would be reasonable if this were a government speech right so i mean one of the fundamental divides here confusions is if this were government speech the government cannot express few points and can remove religious symbols say from the town square foot once but once it becomes private speech and there's a for the government can't say no religion into the into the square and that's if this were the government if for metro itself wanting its own promotions it wouldn't have to include religion absolutely not and we're not a god so against concerns about mistaken into or spent and that by making clear that the ads have to be clear that this is private speech not government speech so we're far far removed from the government speech context here but i absolutely agree that once you are in the government speech context then the government has a much freer hand and you know that's why for example we continue to burn decision from the second circuit as having a helpful analysis of what's viewpoint discriminatory but that decision although it's now says some people discriminatory with the bottom line conclusion there is probably no longer good law because license plates thanks to the confederate sons of the confederacy case are now consider speech but i don't think there's you know i can't predict what mr truly will say about a lot of things but i can predict he's not going to get up here and say this is government speak but it's just if you look at the record one of the sources of confusion metro seems to have is they were concerned about audience reaction and attributing this private speech to metro but that's that's not government speech so it's not not that that bucket of the and it's no and nor would this be a reasonable response to that problem i mean if that's the problem then you know a prominent disclaimer perhaps you know a brief educational session on the nature of government speech nongovernmental very much like the layman that once will moderate decides to have this commercial activity all comers have to be accepted a couple things about women judge rogers i mean the first thing is limit is certainly not good authority for the idea that government can have something like guideline twelve that discriminates against religious issue but there's just nothing in the supreme court cases that supports the idea that the government can have something like i'd want twelve and certainly laymen does not support that proposition obviously with the opinion if we're going to go to the realm of excluded this i will be back here but i'll have a harder case but this case is so much easier than that because guideline twelve is the direct in a way of rest seven in lance chapel the guideline in rosenberger and the same alternative you argued as it should not be considered just a limited public forum but a public forum so women's about the interior of the bus how does the exterior of the bus different for purposes of public forming else i think there's two principal differences one is you don't have the same captive audience problem and it's visible from quintessential public fora and so the inside of a boss i don't think anybody thinks is a quintessential public forum but the streets and public sidewalks are quintessential public forum so i think this case actually poses a relatively difficult if that position were correct then political ads were that of course then have to run on the sides of the bus and the exterior that that that it's absolutely right and so there is a difference and that's why we urged the quote that didn't need to decide this issue and we don't think you need to decide this issue i do think though you know this in a footnote no opening brief and i think the analogy here is the right analogy and i think it's a quite a difficult issue which is if you had a billboard in a public park that the government purported to restrict is that a traditional public forum because it's visible from the public park or is it a limited public forum because the government said we don't want any political speech on that old board it's a really hard question i think it's the analogous question here i think fortunately you don't have to decide it because this is viewpoint discrimination under the clear teaching of three supreme court cases i they specifically intend to ask to run this exact ad in the next advent season and therefore we think this is a case capable of repetition enervating review and therefore not moot and so now turning to the merits let me go right to the heart of the matter on viewpoint discrimination the key consideration in under viewpoint discrimination analysis is the baseline that is set by the lines the government draws when it creates its form now in the cases that my friend mr clement relies on lamp chappell rosenberger good news the government deliberately chose in each of those cases to create an open forum for discussion of matters of policy  and public welfare and if you look for example at page eight twenty five of the rosenberg decision the court says specifically that what the university of virginia was trying to do was encourage the expression of india logical  including those that are controversial and not widely accepted so what you heard councils push back when i tried to focus on the context of the holding he's reading the case is simply on the ignoring whatever else was around i think even with respect to the holding your honor i think with respect with respect to each of those cases the the situation was and the context was critical in the holding of course is embedded in that context in each of those situations the forum was widely open for discussion of a huge range of topics and in if that's the baseline a decision to exclude but then but then the party that wanted to speak came in and said here are the specific topics we want to talk about those were interested in a general general policy so childrearing in lambs chapel character and morals in good news and then said we want to speak about that topic is that topic permissible to discuss within that form answer yes ok and we want to speak about it from a religious perspective so to hear they want to speak about charitable giving and christmas and so i ask you are those topics generally permissible to discuss in this form the answer on this question directly but if you permit me to make a more general point you're first because i think actually the key to this case is that the forum here is basically the opposite of the form the choice that will modern media is basically the opposite of the choice that the government made in rosenberger and good news doesn't really matter how broder how narrow the question is the subject matters they want to speak about are those subject matters to just be discussed in this forum so as charitable giving in christmas presents were discussed in this form christmas is not a subject that's permissible to discuss in the forum in the sense that whether the speech was religion christmas ads in this form you can you can do as for commercial products in this for reference christmas i think that reference the holiday season or christmas you say find the perfect gift macy's dot com i think you could if you then clicked it you then went to the u r l and what you saw was a photograph of a toaster or  an the stress on machine you might support that but that's not viewpoint discrimination and and i think the key and the well secular christmas that i'm not a religious christmas that is not viewpoint discrimination is the secular ad is a commercial ad to promote a product the find a perfect gift dot org and it's an invitation to worship the archdiocese itself describes it as proselytisation it is not within it this has the exact argument there was in good news in lands chapel and rosenberg or that there was a distinction between religious religion as a subject matter or religious worship on the one hand and religious viewpoints about other topics on the other and what what rosenberger said was can't divide those two things that religion sure it's a subject matter of inquiry but it also provides a perspective of a standpoint a specific premise from which a variety of subjects may be discussed in consider and that's why you have to look at what is the subject they want to discuss and and but i think and i think the key difference in rosenberger was that in rosenberger the forum was open so that there could be debate by student organizations about birth control and abortion and gay rights and a whole range of topics you just couldn't discuss those topics that were otherwise open a form from a religious perspective so to hear you have charitable giving this away from a secular charitable giving perspective but not a religious so that reference christmas from a secular perspective but not a religion is let's break those down charitable giving i don't think that's right your honor i think the salvation army ad proves that that's not right if the archdiocese wanted to come in and run an ad that said please give to catholic charities that would be like the salvation army ad the fact that it was a religious speaker would not exclude it from the form it would be included in the form for the same reason but that's not what this at duff's oh yes it has charitable giving and that would be allowed yes it would be allowed but and that would and that's what and this judge rogers indicate is that different from find the perfect gift well well because find the perfect gift when you go when you follow the link you go to the what you find is as an invitation to worship an invitation to an embrace catholic principles and included in it isn't charitable giving those requests but it's imbedded in a context in which when you click on it that's the message you get and it's the message they intend it's the message everyone understands and we think that's a fundamental difference now with respect to the subject of christmas if somebody wanted to run an ad saying look there's a war on christmas we would reject that if somebody wanted to run an ad saying the war on christmas is overblown we would reject that ad if somebody wanted to run an ad saying christmas has become too material we reject that if somebody wanted to run an ad saying celebrate kwanzaa instead of christmas we reject that and the reason for that your honor is because if you look at our policy i think i think that would be an guideline twelve well the key yes but the key thing in my right that would not be an guideline well probably the last one would be of my examples the others probably wouldn't be but i think the key thing here is that you have to look at the policy as a whole because the baseline matters and if you look at six you'll see the policy is that unlike i think just in the stink contradistinction to the forms that issue and rosenberger and good new hampshire will what what will moderate did here based on its experience was make a judgment that it was going to close the forum to all issue oriented advertising including politico it's one of the things that's a bit of a distraction but correct me if i'm wrong here is why i think it's a bit of a discrete destruction you have all these other guidelines that may exclude a particular ad but if eight proposed that makes it through all the other guidelines then you get to guideline twelve and guideline twelve is going to say you're in if you're not religious and you're out if you're religious and so guideline twelve is doing overwork for that subset of said make it through the other guidelines you're in if you're promoting or opposing religious belief or practice and that is one of the and that is in  pocket of ants that the woman has decided that as a categorical matter give rise to the kinds of contention and to visit innes that it is trying to avoid having a core suppose suppose and i know you can answer this hypothetical but i want to use it to explore your position so a policy that says no advertising means that promote or oppose judaism any jewish practice or any jewish belief constitutional or unconstitutional i think that that would be unconstitutional eyes that different from religious rule religion any religious practice or any religious was in that situation i think it goes back to the base line in that situation discussions promoting or opposing christianity or islam or any other religion would be in the form right and so ok and here's here's the problem which i see at the heart of this one of the two problems  believed that discriminating against all religions is ok to screen against individual religions not ok for the supreme court has said that's wrong that to discriminate against catholicism protestantism not judaism as a class it's discrimination against religion and that in the words of the chief justice last year for search for six just says is already a strong constitution and but i  think the right way to think about this your honor is we understand we acknowledge that these topics are important topics for discussion and in our society we understand what  models running a transit system its goal its mission here is not the mission of the it's running a public forum you can't get out of the you can't get out of this by saying oh we're just a bus company once you open it for private speech not your speech metro could do whatever ones as its own speech there once you open a form for private speakers you know as the chief justice again said last year the idea that you can say no churches need apply is  constitution what we don't say that of course if a church wants no church that wants to do religious speech or promote its belief no church that wants to promote its beliefs can get a spot where they're excluded because of their religion so i honor that the starting place for the analysis here is that this is whether you call it a limited public form nonpublic form whatever the nomenclature is that's what it is that means by definition that the government is entitled to make content based categorical judgments and the constant base categorical judgment that that the government made here was that it was going to exclude all issue oriented advertising that's different the issue ads are different from god one in twelve you could have you could then issue ads and we could be a c e o use going to be litigating that in the other cases that's fine but then on top of that you have a ban on religious set so i know i know where you keep selling it back in the issue ads and i would do the same thing but i just don't think that i get sued so i do think because they hold the potential just like ads about politics or just like ads about social issues like abortion or gay rights they hold the potential to create the kind of divisiveness and disruption will modest trying to avoid because that is incompatible with it carrying out its mission of running an effective transit system and that is true whether the ads are religious or not what would happen on an effective transit system if you  which was an ad very critical of the catholic bishops that was a highly contentious ad and the way in which it affected adversely the operation of the transit system is it's damaging to the morale it's damaging to the morale for example of catholic employees who may be driving that that's a reason to close the flooring this is the problem once once a government opens a forum it's going to for public speech guess what there's going to be some offensive speech in there respectfully and that's that's what the supreme  in very strong terms in both for justice opinions that the government can never say oh because some things is deemed offensive by society we can we can remove that from the public square that private speech from the from the public i think your honor that that's it was exactly the basis on which the policy at issue transit posset issue in layman was up held in the language now admittedly it's a plateau for plurality opinion but i do think justice douglas agreed in all respects with this aspect of the five votes and courts of appeals for forty years have been applying it as though it were the law it was specifically specifically what the court said in that opinion was that the transit authority does have the discretion i'll come back to you just to go back to a question that you asked judge wilkins about the political ad layman answers that layman was a political ad and the court held that that advertising could be categorically excluded and certainly that certainly religious speech is a very great value one of the first amendment but it's not of greater value than core political speech on the subject of who should be elected to office and the court held in laym that that core political speech could be excluded and so i think on the case law well i understand that to be as you can well off politics is a subject matter and your point would be we can wall off religion as a subject matter and the problem i have with that are the cases the three cases that say you can't really distinguish religion is a subject matter from a religious viewpoint one should then a fine other subject matter someone read from good news we disagreed at something that is quintessentially religious or decidedly religious in nature cannot also be characterized properly as the teaching of morals and character development from a particular viewpoint and then of course judge jacobs when the subject matter is morals and character it is quixotic to attempt a distinction between religious viewpoints and religious subject matters we're sure what do you think we should make about language in the supreme courts i think and i think the critical point there  e i think the court is saying is that once the government has made a choice to open the nonpublic forum to speech on the topic of child real rearing and morality it cannot then say but you can't address that topic from a religious perspective and that's the fundamental difference here this is essentially a forum that is open for advertising for commercial products and services and  word there because that's that is not correct it is not just commercial it's not just commercial i said and so and and so service oriented public service ads but the line is you look at two of six in the guidelines including guideline twelve implement the policy judgment that's there and six that it's taking off the table all issue oriented advertising because the potential for division and contention is incompatible with the effective operation of the transit system that's the judgment they made that's the judgment that they are allowed to make under the law and that's why the baseline is so critical if you i think the key is whether you can identify a topic that is permissible within the form do you agree or disagree with that i think yes but the question is how and i think you what you do is start with the lines that government have drawn after all rosenberger quoting cornelius said that the key here is that the government has to respect the lines that it itself has drawn and so what you've got to do is start with the lines the government has drawn the line the government through here excludes all issue oriented advertising with religious with with religious advertising as a subset and the key difference in all of those cases is that the lines of government drew created a forum designed to encourage the right wide open robust and uninhibited debate on public issues and issues of importance the forum here is designed to do exactly the opposite because that kind of wide open robust debate they we think on the side of a bus or in the metro cars is detrimental to our ability to operate effectively and i do think you know i can understand that my friends on the  side want to cabaniss to religion but several things about that i think you don't and it's important to understand the that there just is no limits to the argument the front my friends on the other side are advocating with religion itself if we have to if we run this ad we run the find the perfect gift that seems to me there is no argument available to us that we could for close running the ad which you can see at page two sixty eight of the joint appendix criticizing the catholic bishops because we run an ad  promoting promoting the catholic faith be a point discrimination viewpoint atrocity would require us to run an ad criticizing the catholic faith as well which would then in turn requires to run an ad criticizing islam or criticizing judaism and we'd be in exactly the situation in which we're trying to avoid in which the supreme court in layman said we had the constitutional authority to avoid and it isn't you just can't limit that principle to to religious speech for example if we run an ad for the ram fifteen hundred then somebody can come in and say well you know you're encouraging low fuel economy so the n r d c can come in and say hey climate change is a big problem and you should not be and we should be paying more attention to fuel economy this isn't hypothetical you know we run ads for mcdonald's and we have been sued by peta even if we're to accept that argument and say that well on its face this isn't viewpoint discrimination bell the contention that well as applied here is few point discrimination because the salvation army and was allowed to run  this one wasn't true true answers to that first the there is a fundamental difference between the salvation army ad and this ad in that cell that as we said if if the archdiocese wanted to run an ad that's centrally equivalent to this social army and we would run it so we don't think that there's discriminatory application here we don't think that the argument about this you look at is really a very serious argument with respect to discrimination but i think the so i don't think you have a record on which you could find and impose a preliminary injunction that there's discriminatory enforcement here but beyond that i think the critical point is anytime you're in operating in a situation where there is a nonpublic for the government has the authority to make categorical content based judgments that means some things are going to be in and some things are going to be out and that in turn means that some things are going to be close to the line and it can't be right that the government has to bat a thousand making those judgments about what's on one side of the line to avoid the claim that it's in gauged if you put in the as applied attack we don't care whether they balance thousand generally we care whether they got it wrong this time well right but i guess what i'm saying your honor is that even if you thought we got it two ways of looking at it right one is that we got it wrong because we should have run this ad in addition to the salvation army and the other way would be of course that we got it wrong and that we shouldn't run the salvation army at either now and so but i and i guess that's why i'm saying that even as applied context before you would decide that there's discriminatory enforcement i would hope the court would want to much more robust record that you have here and i do think that's a serious problem both with the as applied and also with respect to the general challenge here in that my friends on the other side are making an argument that you know just look at this all these ads would be in but our ad would be out but they're all it's just one hypothetical after another after another and that's true with that on the general paul says the same point in good news that was raised at oral argument in good news that we didn't know what the boy scouts really did at their meeting when the council argued that the record was underdeveloped but it was accepted that you could discuss character and morals in the forum and that was good enough for the supreme court and here it's accepted you've said that you can have ads on charitable giving and not reference christmas and so the question really is whether that topic is something that can be referenced from a cycle or perspective and not a religious perspective  put i mean there's no doubt you're not disputing let me just get this nailed down you're not disputing that charitable giving ads are permitted on the boss and that no we're not but that's all i need on that but then you can actually let me get the other one out which is you're not disputing that ads promoting products and that also reference christmas are permitted that's correct but with respect to  and with respect to charity and with respect to products it's in the category of commercial advertisements which we accept that but an average advertisement to come worship is just not in the category of commercial advertisements it's not in the category we and if we you know if we came back you know if if i worship i mean that is would more there are other cases which talk about worship and in an rosenberg of a supreme court when talking about would more this is an exact quote from rosenberg or the accept if we came back with a policy that just said didn't have the right basically one of the issues here is we're this is a policy that defines out what can be said as opposed to defining in what can be said and but i think the key thing here and it's critical distinction from rosenberger lamp chapel and good news as it defines out a huge range of expression what is defined in is a narrow range of expression and so in that respect it's really the polar opposite of those cases and the i just and i think i'm going to be repeating myself but just on that point are i'm not sure that matters the broader narrowness of what's al you know might be a lot out in might be very little out what matters is what is in whether that small or large and then if you are within what is in what topics or permissible and you've said what you said about what topics are permissible and then the question is once you have those topics that are permissible or you are rallying a secular ad and not a religious setting regardless of how much else is excluded a lot or a little bit so i'm not sure that i think i'm saying what i said which was i'm not sure the broad narrow thing really gets us very far i do think it gets i do think it's important because the question is whether when one of the subject matters that is excluded is the subject matter of religion does that operate to create a viewpoint discrimination and doesn't rosenberger say yes it does because it is a subject matter but it is also a perspective a premise a standpoint it does  operates to preclude speech from the religious perspective about subjects that are otherwise open for discussion in the form and that isn't that this case and the charitable giving in the in the  i don't with respect to charitable giving no because that charitable giving alone isn't general giving alone is in charitable giving as part of an overall message of proselytizing is not in because because that message of proselytizing is there and so and that's the difference and then with respect to christmas again the subject matter of christmas is not an available subject matter for this form there are all kinds of discussions about christmas an christmas themed ads are permitted christmas themed ads for commercial products but for commercial products right for commercial products and so you know i suppose if a religious organization wanted to sell a commercial product if monks wanted to sell crime a holiday brew l they would be able to do that because it's does it's not based on whether the speakers are religious organization it's based on whether the subject matter is within the form and so and but is not within the forum it's just it is and i do think that that's the critical difference between rosenberger and lamb chapel good news and i just get you to clarify something the the commercial guidelines guidelines apply to service oriented as well yes it's my understanding that this grace guidelines are comprehensive so the they imply that every any ad that gets submitted these guidelines would apply to it salvation army says he is it doesn't say to what yet you in response to a question said it would be permissible under the policy to run an ad by the archdiocese saying dear of two catholic charities why isn't that promoting the catholic religion or you know whatever religion i don't think that it's an ad that promotes or opposes the religion it's an ad encouraging charitable giving in the same way that the salvation army ad is out there that doesn't have a limited a service or a commercial product but we think it's service oriented in that sense that it's it's trying to encourage charter of charitable giving which is a good thing irrespective of its religious or non religious motivation so is the assumption that the charitable giving to the salvation army will only go to christian charities well you know i don't know where it goes it goes where it goes but it's i know but i saw it's an interesting notion and when you said catholic charity giving would be permissible then it seems to me you're getting very close to what you and judge kevin are discussing aren't y don't i don't you know we don't see it that way we see that as an neutral application of the guidelines that because it doesn't cover any and if i could just go for a minute to the question of whether this is a nonpublic form form can i before you get to that get to the reasonableness pronk of the first amendment test which also blends i think an equal protection free exercise so putting aside the intricacies of viewpoint discrimination why is it ever reasonable for the government to exclude a religious speaker or religious speech from a limited public forum but because of religion why is that a reasonable if the government makes a judgment that a s it did here that categories of speech that contain the potential for if this is contentious dialogue and debate it's inconsistent with the purpose of the forum from a public benefit for which it is otherwise qualified solely because it is a church is odious struck constitution right at six justices last year singling out of imposing special disabilities on the basis of religious feelings or religious status you can't do that smith a benefit solely because of the status of denying a benefit so because of his status as a minister that's mcdaniel  not discriminate against some of the religious beliefs that's look you meet i am not aware of any case where the supreme court said you can discriminate against someone religious speech or religious speaker because of religion no case no case is said that in all these cases were more difficult because you had an establishment clause issue at the back end with the schools and the funding there's no stablish mccall's issue at the back end here this is just pure discrimination but you have separate guidelines that can do that i once was because it's religious because it's religious one excluded and i've never seen anything like that in any supreme court case outside the setting where there's an establishment cl appreciate your honor's point but i disagree with it in numerous respects first that this is not discrimination against anyone because of their status as a religious organization because of their religious speech but it's certainly not because of their said religious speech or religious speaker each time i said it so one of the two then it certainly isn't status that applies to everybody and applies whether you're want to promote or oppose religion so there isn't that kind of status based judgement here and with respect to the speech i think this speech is as you repeat yourself before i guess i'm going to do it again it is a subcategory of issue oriented advertising but there's two things about that one is that the incitement you know incitement is a very high bar to the first amendment it wouldn't exclude for example the ad that said page two sixty eight which we think causes the kinds of problems that are inconsistent with our ability to operate effectively it's the at a tack in a catholic bishops and and yes it would exclude ads like that so it doesn't accomplish the objectives that we're trying to accomplish here of creating a space that and i think the thanksgiving dinner table is a good analogy we're trying to we're trying to create a space in which the kind of the visit of potentially divisive robust debates that ought to occur in other places don't occur in this form because the have because we have learned through hard experience that allowing those kinds of debates to occur in this form are inconsistent with our ability to operate effectively and that's and i think that's a judgment we are entitled to make that is not discrimination against religion that is a judgment about what kind of speech we want to have in this form that in fairy very limited it's a very limited category of speech in the form and religious speakers if they are speaking about those permitted categories can speak so it's not assignment told last year justice kennedy said the government may not in some way they will often charges of viewpoint discrimination by tying censorship to the reaction of the speakers audience so why don't why is the reaction of the speakers audience matter because that's wasn't in a public forum context your honor and in a public forum context the government does get to make these kinds of judge and that is precisely with all due respect what the supreme court held in laymen that the government could make th judgment to avoid the kind of giving offense that the political ad might do on the bus but not on the metol is not a public forum because he's talking more generally about first amendment principles there and says courts cases along prohibiting the government from justifying a first amendment burden by pointing to the offensiveness of the speech to be suppressed and so and no another place i think that is a public forum context that shows that that principle has is more limited than i think your honest question suggests is cornelius of course which is really the foundational case in this area the very argument that was made against excluding the charitable solicitations in cornelius by by advocacy organizations like the end of the c p was that inclusion of those kinds of organizations in the charitable giving under the combined federal campaign was going to create controversy some people would be offended by that it would diminish the overall effectiveness of the program that was the very reason that was given for drawing a line that was drawn between charitable organizations that provide direct services to people versus charitable organizations that engage in advocacy the court said that was fine as a categorical matter even though it was about controversy and about giving offense and that is because when you're talking about a nonpublic forum you are operating under a different set of principles and apply if this was a park and traditional public form of course that principle would apply of course it would apply and if the other public form why is the extreme or the bus not different some switching to that the public form was the exterior of the bus not different from the interior of the bus and justice douglas's opinion which was the deciding vote seemed to rely on votes marcie on the captive audience point so make a preliminary point and then i do think if if the court looks at for twenty you will see in black and white that my friends on the other side that can see that this a limited public forum this is a limited public forum it's not a general public forum that's also i mean well look at that they preserved it i thought at each stage but in any event go figure that out ourselves on the question of the exterior plurality relied on an old supreme court case packer which was about billboards so it obviously was including it was obvious including in its analysis speech that could be seen  out in the public generally so i don't think you can get that distinction i agree that's i think that's a good point for you and but i do think justice douglas is point seemed to rest and it's unclear ultimately in the plurality on rest might be too strong would seem to know the cab captive audience a point sure and that's one of the considerations but i do think you've got to measure the reasonable nyssa of you've got to i think in thinking about the right way to think about this whether it's a traditional public forum or or a vandalism and safety risks all of the justifications for adopting this set of restrictions to close the forum in the way that we get all those apply equally whether the ads on the outside of the bus or on the inside of the bus well part of the argument there was a comparison to wild speakers in the bus and just as douglas made that comparison and said you can't avoid seeing the ads in the bus just like you can avoid a loudspeaker now the dissent justice brennan says the center for justice just took that apart but put that aside when the extra you're the boss you're not the you're not forced to look at it it's more like a picket walking down one could say and tell me why it's  not correct one could say it's more like a picket someone walking down the sidewalk with a sign is the same as the boss moving down the road with your sign how is that how those two things different they're different because the the different in numerous respects the the ad on the outside of the bus can have the same adverse effect on employee morale as the add on the inside of the bus the on the outside of the bus can create the same series administrative headaches as the on the inside of the bus we're going to get the calls from the arch bishop and from the members of congress and from the leadership of the city government here when we run an ad like the ad and page to sixty on the outside of the b or whether we run it on the inside of the but that's because you think those ads will be attributed to you know we know because whether they're attributed to us or not they're on the bus and that makes a lot of people unhappy and i do think that gets to a fundamental point here which is that you know that at the end of the day is what lehmann is all about laymen say you're basically that if the court were to conclude that that the that advertising in a bus is a designated public form such that we could not have any content  based restrictions on what is accepted or even if it were to adopt what we think is a view of viewpoint discrimination that has no limits and effectively turns every nonpublic forum into a  designated public forum and basically you're putting the transit authorities to exactly the choice that laymen said the constitution doesn't put them to that laymen what laymen said is you don't have to decide that in order to avoid the harms of that that you perceive from running every kind of ad without making these categorical judgments you don't have to decide either i'm going to endure those harms in order to gain the revenue to offset the cost of running transit system or i'm going to shut down the form entirely because those harms are too great to bear but i respectfully suggest that is what viewing this is it doesn't in a public forum would bring about that is what accepting my friends understanding of what viewpoint discrimination would bring about and i just don't think that the court can do that consistently claim thank you thank you counsel for a parent will give you some time given time your calling thank you your honor i'll try to be pretty for the few points in rebuttal first of all i do think in considering the specific issue before the court whether to issue a preliminary injunction while the gotten through this whole hour and we haven't even talked about whether we're for a price to remodel there's lots of issues for the lower court to wade through the question here is what's going to be the status quo of the litigation proceeds from the first amendment first amendment and i friend on the other side raises the cornelius case is another example the government treated speech differently from religious speech you can go to the campaign for federal giving and you can fund all sorts of religious charities but politics forum then if it was six not it early because of something like i'd run twelve it was unconstitutional there's no question i mean if you say that guideline twelve is unconstitutional then they can decide what else is in the form by administering the other thirteen guidelines they don't need guideline twelve in the constitution doesn't permit them to have it thank you thank you i'll take the case