[00:00:00] Speaker 02:
And so for the students, here comes our last case.

[00:00:08] Speaker 02:
Council can approach now for the last case.

[00:00:10] Speaker 02:
It involves sideshows up in the Bay Area.

[00:00:14] Speaker 02:
You guys may have seen those.

[00:00:16] Speaker 02:
You don't need to say if you've been to one or not.

[00:00:19] Speaker 02:
But anyway, this case I think is, you know, some of the cases we've had have been kind of technical.

[00:00:24] Speaker 02:
This is the case you're going to be able to follow pretty easily.

[00:00:29] Speaker 02:
And it's a very interesting constitutional case.

[00:00:33] Speaker 02:
So sometimes it can be tough in the audience when you haven't read the briefs.

[00:00:38] Speaker 02:
But this one, you don't really need to have read the briefs to understand what the lawyers are talking about in this case.

[00:00:43] Speaker 02:
And with that, one second, counsel.

[00:00:50] Speaker 02:
And counsel, you may proceed.

[00:00:58] Speaker 03:
Thank you.

[00:00:58] Speaker 03:
May it please the court, David Loy representing Jose Garcia.

[00:01:01] Speaker 03:
I would like to reserve at least three minutes for rebuttal.

[00:01:04] Speaker 03:
Very well.

[00:01:06] Speaker 03:
This case is about the free speech right to record and report on events of public concern in a public forum.

[00:01:16] Speaker 03:
My client wants to stand in a public forum to document and record a sideshow, an event of public concern in that forum, and then publish his reporting about those events.

[00:01:30] Speaker 03:
Under Project Veritas, to create a recording for news gathering, as my client intends to do, is speech protected by the First Amendment.

[00:01:40] Speaker 03:
And that's exactly what's at issue here.

[00:01:42] Speaker 03:
This appeal on this preliminary injunction

[00:01:46] Speaker 03:
only challenges the ordinance as applied to the creation of that protected speech.

[00:01:51] Speaker 03:
We are not asking the court to explore the outer limits of all potential applications of the ordinance.

[00:01:58] Speaker 03:
As applied to my client's protected speech, this ordinance is subject to the First Amendment precisely because it punishes an essential element of creating protected speech in a public forum.

[00:02:15] Speaker 00:
agreed with you that your client's observation of sideshows is protected speech.

[00:02:21] Speaker 00:
I'm wondering where you would draw the line.

[00:02:24] Speaker 00:
Could your client, I don't know, pursue a police chase in order to report on it?

[00:02:29] Speaker 00:
Could he do—I mean, what's the limiting principle to his right to observation in your view?

[00:02:36] Speaker 03:
So to be clear, the right is to observe for the purposes of recording and reporting.

[00:02:40] Speaker 03:
And on these facts, I'm only asserting the right to stand in the public forum and record events.

[00:02:47] Speaker 03:
I'm not claiming a right to, for example, drive recklessly.

[00:02:51] Speaker 04:
But are you saying?

[00:02:52] Speaker 04:
that following up on Judge Thomas's question, that for the right that you are asserting, it makes no difference how dangerous the event that you want to observe is.

[00:03:07] Speaker 04:
As long as it's in a public forum, you get to do it no matter how dangerous it is.

[00:03:12] Speaker 03:
Well, the audit is subject to the First Amendment.

[00:03:14] Speaker 03:
Your question, Your Honor, if I may suggest, goes to whether it survives First Amendment scrutiny.

[00:03:19] Speaker 03:
And I can address that.

[00:03:20] Speaker 04:
No, but it sounds like from your argument

[00:03:22] Speaker 04:
You are arguing that your client has a First Amendment right to, in a public forum, observe any event in which the public would have an interest in, irrespective of its dangerousness.

[00:03:39] Speaker 03:
He has a right to observe and record and document as a reporter or concern member of the public.

[00:03:48] Speaker 03:
In some circumstances, the government can limit free speech rights in a public forum under, if it's content neutral, if it survives intermediate scrutiny, if it's content-based, they must survive strict scrutiny.

[00:04:02] Speaker 03:
I'm only talking about the threshold issue.

[00:04:04] Speaker 03:
Is this a First Amendment case at all?

[00:04:06] Speaker 03:
And if it's protected speech in a public forum, it is a First Amendment case.

[00:04:10] Speaker 03:
And then we get to, is it content-based, and does it survive?

[00:04:14] Speaker 04:
So it's First Amendment.

[00:04:16] Speaker 04:
in your view, irrespective of the dangerousness.

[00:04:21] Speaker 04:
That's correct, Your Honor.

[00:04:23] Speaker 04:
So if this were, for example, somebody there with a bomb that might go off on a sidewalk, and the police said, everybody has to clear out right now, and your client was there, I'm there to observe it for First Amendment purposes, that his right to observe

[00:04:46] Speaker 04:
a bomb that might go off would be judged by First Amendment standards.

[00:04:51] Speaker 04:
That's still a First Amendment question, not a police power question, for example.

[00:04:56] Speaker 03:
Yes, the police power is subject to the First Amendment in a public forum.

[00:05:00] Speaker 03:
But in that case, Your Honor, if it were genuinely content neutral, genuinely an emergency, and applied to everyone, and no one could go inside that perimeter for any reason, which is not this case,

[00:05:12] Speaker 03:
because this case is content-based, which I can get to.

[00:05:15] Speaker 03:
But if it were genuinely content-neutral, that's the kind of rule or direction that would probably, if challenged in court, easily survive.

[00:05:25] Speaker 04:
But we still, in your view, even in that circumstance, a bomb in the middle of the street, we still have to start with a First Amendment analysis.

[00:05:33] Speaker 03:
If that were challenged, if that case were before the court, yes, the First Amendment would apply to any buffer zone in a public forum.

[00:05:41] Speaker 03:
The buffer zone might well survive First Amendment review.

[00:05:45] Speaker 03:
And in your case, Your Honor, I submit it probably a very easy case on the merits.

[00:05:50] Speaker 03:
But it's still in principle a First Amendment issue.

[00:05:55] Speaker 03:
Because as, if I may, to record is to observe.

[00:05:59] Speaker 03:
To observe is to be present with the purpose to observe.

[00:06:02] Speaker 03:
And therefore, to be present with purpose to observe an event is an essential element of creating protected speech about that event.

[00:06:11] Speaker 03:
And this ordinance essentially chokes off that free speech right to record at its root by punishing an essential element of creating protected speech.

[00:06:19] Speaker 03:
As I explained in the brief, it punishes reporters who are creating firsthand journalism about sideshows.

[00:06:25] Speaker 03:
It would punish a member of the public who wants to record a sideshow to protest or report it to law enforcement.

[00:06:33] Speaker 03:
The county makes a big deal of saying spectators are integral to sideshows and we can therefore punish someone simply for being present with a purpose to observe and therefore record.

[00:06:43] Speaker 03:
But the First Amendment prohibits imputing criminal liability to people who merely exercise their free speech right to record and report on unlawful acts committed in public.

[00:06:56] Speaker 04:
So would this apply to a cockfighting statute that was applicable everywhere, not just on private property, that you can't attend a cockfight

[00:07:11] Speaker 04:
wherever it is that would that would also be impermissible.

[00:07:16] Speaker 03:
So two points, your honor.

[00:07:18] Speaker 03:
If it's in a public forum, the First Amendment is in play under McCullin and related law.

[00:07:23] Speaker 03:
It's always a First Amendment issue if we're talking about a law that impacts speech in a public forum.

[00:07:28] Speaker 03:
Then we ask, is it content neutral or content based?

[00:07:31] Speaker 03:
If it were content neutral and simply said no one may come within x feet of a cockfight for any purpose, we would evaluate that under intermediate scrutiny.

[00:07:41] Speaker 03:
But if it said you may not

[00:07:42] Speaker 03:
approach for the purpose of observing and recording that event specifically, then it's content-based and has to meet strict scrutiny if it's applied in a public forum.

[00:07:53] Speaker 03:
As a practical matter, as I understand the cases on illegal animal fights and other illegal events such as illegal boxing

[00:08:01] Speaker 03:
They're all about events held underground and in secret.

[00:08:04] Speaker 03:
And we're not advocating a free speech right to get onto private property to attend an underground event held in secret if, again, it's purely a content neutral restriction.

[00:08:14] Speaker 03:
But if it is applied in a public forum, then yes, we do have a First Amendment issue.

[00:08:21] Speaker 03:
And we then get to is it content based or content neutral.

[00:08:25] Speaker 03:
But the government cannot just legislate

[00:08:28] Speaker 03:
free speech rights out of existence and do an end run around the First Amendment just by declaring that an essential element of protected speech is itself a crime in a public forum.

[00:08:44] Speaker 03:
This case is, as applied to this case, the ordinance does impose a content-based restriction on speech in a public forum.

[00:08:55] Speaker 03:
By its text, and as the county effectively admits,

[00:08:58] Speaker 03:
The ordinance makes it a crime to be within the 200 feet and face the sideshow to observe and therefore record it, but not to be in the same time and place and turn your back and record something else at the same time and place.

[00:09:15] Speaker 03:
That is the very definition of restricting speech based on its substantive content

[00:09:23] Speaker 03:
based on a substantive subject matter.

[00:09:25] Speaker 03:
This is not a case like City of Austin where we have on-premise, off-premise signs, the same sign, vote for Jane Doe, buy my product.

[00:09:35] Speaker 03:
It's the same sign in City of Austin and that was not

[00:09:38] Speaker 03:
a content-based restriction because the law applied equally to the same substantive content.

[00:09:44] Speaker 03:
This case, by necessary operation of the text of the ordinance, discriminates based on the content of the recording.

[00:09:51] Speaker 03:
You have to view the substantive subject matter of the recording.

[00:09:56] Speaker 03:
Is it a recording of the sideshow made with the purpose to observe the sideshow?

[00:10:00] Speaker 03:
Then it's a violation.

[00:10:01] Speaker 03:
If it's a recording of something else,

[00:10:03] Speaker 03:
facing away from the sideshow at the same time and place, it's not a violation.

[00:10:07] Speaker 03:
That is a content-based restriction as applied to the facts of this case.

[00:10:13] Speaker 03:
And a content-based rule, a content-based prohibition, remains content-based even if it only applies to one form of speech, such as recording, even if it allows other kinds of speech at the same time and place.

[00:10:26] Speaker 03:
And I've addressed those cases in my brief, not least of which is Berger against City of Seattle in this court on Bonk 10 or 15 years ago.

[00:10:34] Speaker 03:
As applied to the speech in this case, the ordinance is likely to fail strict scrutiny because it is not the least restrictive means to serve any valid compelling interest.

[00:10:46] Speaker 03:
If the county's interest is in preventing and punishing criminal conduct in the side shows themselves,

[00:10:52] Speaker 03:
You know, that cannot justify punishing the press in public for creating speech about the sideshows.

[00:10:58] Speaker 04:
So in your view, the county would have a better argument if the ordinance simply said it is a violation for any person to knowingly be within 200 feet of a sideshow.

[00:11:20] Speaker 03:
They would have a better argument.

[00:11:21] Speaker 03:
That would be much more like being content neutral.

[00:11:24] Speaker 03:
We would still address that on remand if they amend the ordinance, you know, intermediate scrutiny.

[00:11:29] Speaker 04:
They'd have a better shot with a more restrictive ordinance.

[00:11:34] Speaker 03:
Well, that would make it content neutral.

[00:11:36] Speaker 03:
Yes, Your Honor.

[00:11:36] Speaker 03:
And content neutral laws are always preferred to content-based, all else being equal, because the First Amendment prohibits content-based discrimination above all else.

[00:11:47] Speaker 03:
Precisely because of the inherent risk of arbitrary censorship in a content based law content neutral laws don't present that same risk.

[00:11:58] Speaker 04:
They have the right to take into account.

[00:12:02] Speaker 04:
Other constitutional problems that are completely in your view content neutral law would pose like for example just anyone being within 200 feet might create a due process problem because somebody might not know what a sideshow is and might not know why they're there.

[00:12:23] Speaker 04:
Did they have the right to take that into account in drafting their statute to to address other potential?

[00:12:29] Speaker 04:
Constitutional challenges like void for like like for example again due process I Understand your honor.

[00:12:37] Speaker 03:
I believe the knowledge element addresses that due process question

[00:12:42] Speaker 03:
if the statute prohibited knowingly being present.

[00:12:45] Speaker 04:
Right.

[00:12:46] Speaker 04:
It would.

[00:12:48] Speaker 04:
So they could, that would not make it in your view not content neutral that you had to have knowledge that it was a side show to be punished.

[00:12:59] Speaker 03:
I'm not sure that the knowledge element alone makes it content based.

[00:13:03] Speaker 03:
What makes this ordinance content based is not the knowledge element but the specific intent element with the purpose

[00:13:10] Speaker 03:
to observe the side show.

[00:13:12] Speaker 04:
I asked a bad question.

[00:13:14] Speaker 04:
So if it were just simply knowledge, then you would not argue that made it not content neutral.

[00:13:26] Speaker 03:
If it was knowledge alone, no person shall be within 100 feet of a side show or 200 feet of a side show, knowing that there's a side show there.

[00:13:34] Speaker 03:
That's a lot closer to being content neutral.

[00:13:36] Speaker 03:
I would like to reflect on that a bit more.

[00:13:38] Speaker 03:
I don't want to make a permanent binding concession, but I will accept that that's much closer to being content neutral, and the county would have a better argument in that event.

[00:13:48] Speaker 03:
I'm not saying it would be constitutional under intermediate scrutiny.

[00:13:51] Speaker 03:
That would require a much fuller record on remand, but I agree the county would be in a stronger position than in trying to defend a content-based law under strict scrutiny.

[00:14:01] Speaker 02:
You want to reserve?

[00:14:02] Speaker 02:
We'll bump you to three minutes.

[00:14:04] Speaker 02:
Yes, please, Your Honor.

[00:14:04] Speaker 02:
Okay, so we give him three minutes for a vote.

[00:14:06] Speaker 03:
Thank you.

[00:14:08] Speaker 03:
May I, shall I reserve my remaining time or shall I continue at this moment?

[00:14:11] Speaker 02:
Well, you only have three minutes left.

[00:14:13] Speaker 02:
Okay, then I will reserve my three.

[00:14:14] Speaker 02:
That's why, yeah, I want to keep you to what you wanted to do.

[00:14:16] Speaker 03:
Thank you, Your Honor.

[00:14:27] Speaker 01:
May it please the Court?

[00:14:28] Speaker 01:
Aaron Stanton on behalf of the County of Alameda.

[00:14:33] Speaker 01:
May it please the court?

[00:14:33] Speaker 01:
The district court correctly denied the preliminary injunction in this case for two reasons.

[00:14:37] Speaker 01:
First, the ordinance targets non-expressive conduct, joining the audience for a sideshow.

[00:14:44] Speaker 01:
The ordinance applies regardless of whether an individual speaks or intends to create speech, and it is thus a generally applicable ordinance that is not subject to First Amendment scrutiny, even if it incidentally affects speech.

[00:14:58] Speaker 00:
So how would a journalist record a sideshow without being able to observe the sideshow?

[00:15:06] Speaker 01:
Well, so, Your Honor, I think the question in this ordinance comes at it a step further.

[00:15:13] Speaker 01:
The ordinance is not targeting the act of recording.

[00:15:18] Speaker 01:
It's targeting someone's presence for the purpose of observing.

[00:15:21] Speaker 01:
And that is not an expressive activity.

[00:15:25] Speaker 00:
Well, but it's a predicate, I think,

[00:15:28] Speaker 00:
to recording for a journalist.

[00:15:30] Speaker 00:
That's why I asked the question.

[00:15:31] Speaker 00:
I don't understand how a journalist can record a sideshow without observing it.

[00:15:36] Speaker 00:
And recording, I think, is a First Amendment protected activity.

[00:15:39] Speaker 01:
Well, so certainly I agree that recording is a protected First Amendment activity.

[00:15:44] Speaker 01:
But I think the distinction here is that the ordinance applies to everyone, regardless of whether or not they are recording or not.

[00:15:52] Speaker 01:
And that's what makes it generally applicable.

[00:15:54] Speaker 01:
And I think this goes to the question that Your Honor asked earlier about a reporter who wanted to, for example, cover a high-speed chase.

[00:16:03] Speaker 01:
The ordinance here is similar to a regulation that would prohibit speeding.

[00:16:11] Speaker 01:
even if it were challenged by a reporter who wanted to cover that high-speed chase.

[00:16:15] Speaker 01:
The ordinance wouldn't be subject to the First Amendment because it doesn't target the expressive element of the reporter's conduct.

[00:16:21] Speaker 01:
In fact, it doesn't target expressive conduct at all.

[00:16:25] Speaker 00:
So observation, in your view, that's not an expressive conduct, the observation?

[00:16:31] Speaker 01:
Yes, Your Honor.

[00:16:32] Speaker 01:
Observation is not expressive conduct.

[00:16:35] Speaker 01:
One can engage in observation, for example, just being present at a sporting event in a way that is not at all expressive.

[00:16:42] Speaker 04:
Council, here's where I'm sort of at sea with this ordinance.

[00:16:48] Speaker 04:
I'm looking, for example, at page 36 of your brief.

[00:16:53] Speaker 04:
Individuals who did not seek out the sideshow to watch it may record it, take notes on it, interview spectators, or observe it freely.

[00:17:04] Speaker 04:
So somebody who goes there with the intent to watch it, they're violating the statute.

[00:17:10] Speaker 04:
Somebody who goes there initially with the intent to sell Girl Scout cookies and then decides they don't want to sell Girl Scout cookies, now they want to watch it, is not covered by the ordinance.

[00:17:21] Speaker 04:
That's what you say at page 30.

[00:17:23] Speaker 04:
How does that make any sense?

[00:17:27] Speaker 01:
The way that I would frame it is the text of the ordinance is somebody who is knowingly present for the purpose of observing a sideshow as it progresses.

[00:17:41] Speaker 01:
That for the purpose, I think, is doing a lot of the work here.

[00:17:46] Speaker 01:
Someone has to have the purpose of being present

[00:17:51] Speaker 04:
for the purpose of observing the sideshow.

[00:18:08] Speaker 04:
goes there for the purpose of observing, but is doing the exact same thing as the person in my hypothetical.

[00:18:15] Speaker 04:
One of them can do it, the other one's violating the ordinance.

[00:18:17] Speaker 01:
So, Your Honor, to take up the terms of your hypothetical exactly, someone who went to sell Girl Scout cookies.

[00:18:23] Speaker 01:
a sideshow happens in front of them.

[00:18:25] Speaker 01:
If they continue to sell Girl Scout cookies and while they're selling Girl Scout cookies incidentally observe the sideshow, if they're selling Girl Scout cookies and they continue to sell Girl Scout cookies while the sideshow is happening, I would say even if they take notes and note that, oh, there's a license plate there, I'm jotting it down so I can report it to police later.

[00:18:43] Speaker 00:
How does that make any sense?

[00:18:48] Speaker 00:
What's the difference?

[00:18:49] Speaker 00:
I just really don't understand what the difference is between someone who's sitting at a table, okay, with Girl Scout cookies in front of them watching the sideshow, taking notes on it, enjoying it maybe, and someone who's there as a reporter standing right next to the Girl Scout cookie table who's doing the same thing.

[00:19:09] Speaker 00:
Go ahead.

[00:19:11] Speaker 01:
Oh, I'm sorry.

[00:19:11] Speaker 00:
No, no, go ahead.

[00:19:13] Speaker 01:
So again, I think it points to the, again, the reason for presence.

[00:19:20] Speaker 01:
If the Girl Scout cookie seller is present for the purpose of selling Girl Scout cookies, they're not present for the purpose of observing the sideshow.

[00:19:27] Speaker 01:
But again, one thing that I think is important here is even if the Girl Scout cookie seller who looked up and happens to observe the side, so even if

[00:19:37] Speaker 01:
that person were to be subject to the ordinance and guilty of a violation of the ordinance.

[00:19:41] Speaker 01:
It wouldn't be because of any expressive conduct that they are undertaking.

[00:19:45] Speaker 01:
It would be because they were present with the purpose of observing the sideshow, not because they intended to speak about the sideshow.

[00:19:52] Speaker 01:
If they started taking notes, that wouldn't be the thing that draws the legal remedy.

[00:19:55] Speaker 04:
So counsel, you're familiar with the Wasden case.

[00:20:00] Speaker 04:
Yes.

[00:20:03] Speaker ?:
OK.

[00:20:03] Speaker 04:
You know, I've recently written about the Wasden case in an opinion that was joined by no one.

[00:20:10] Speaker 04:
And so, Wasden is extremely broad.

[00:20:17] Speaker 04:
It is binding in the Ninth Circuit.

[00:20:20] Speaker 04:
We recently had an in-bank case where we discussed these issues, but Wasden is extremely broad and it's binding on us, right?

[00:20:32] Speaker 04:
So I'd like to hear your explanation as to why

[00:20:39] Speaker 04:
Wosden doesn't compel us to accept your friend's argument here.

[00:20:45] Speaker 01:
Sure, Your Honor.

[00:20:46] Speaker 01:
So Wosden focuses on and concludes that the act of recording is an act of speech creation because the recording itself is similar to a painting or a book.

[00:20:58] Speaker 01:
I'm sorry.

[00:20:59] Speaker 01:
The same way that you write a book when you create a recording, you're creating expression.

[00:21:04] Speaker 01:
So in my understanding, holds Wosden.

[00:21:07] Speaker 01:
The difference between that ordinance, or the law in Wasden, and this one is that the act of being present for observing is not itself an act of speech creation.

[00:21:18] Speaker 01:
It's being present for the purpose of joining the audience for an illegal event, and the ordinance, again, applies regardless of whether that person who is there to observe the sideshow

[00:21:29] Speaker 00:
intends to create speech in

[00:21:44] Speaker 00:
but you can't observe a play.

[00:21:47] Speaker 00:
And then the Wasden decision has no meaning anymore.

[00:21:53] Speaker 00:
So I mean, I don't see how we could possibly conclude that a necessary predicate to a First Amendment protected activity is not also protected by the First Amendment.

[00:22:05] Speaker 00:
I guess that's what I'm trying to get you to address here.

[00:22:09] Speaker 01:
Yeah, so Your Honor, I will try to address it.

[00:22:13] Speaker 01:
I think the difference in the hypothetical that you've posed is that a play, for example, involves expressive activity.

[00:22:20] Speaker 01:
Here there is no claim that a sideshow is expressive and that observation of a sideshow is observation of an expressive activity.

[00:22:27] Speaker 01:
Plaintiffs raised in their briefs the idea of ordinances that prohibit presence for the purpose of observing a protest or presence for the purpose of observing a police activity.

[00:22:38] Speaker 01:
This isn't that.

[00:22:39] Speaker 01:
This ordinance doesn't do observation of an expressive activity.

[00:22:44] Speaker 01:
And again, I think that's the important distinction.

[00:22:48] Speaker 01:
If you look at the language of the test in our CARA, First Amendment scrutiny applies only where it was conduct with a significant expressive element that drew the legal remedy in the first place or where an ordinance based on non-expressive activity has the inevitable effect of singling out those engaged in expressive activity.

[00:23:08] Speaker 01:
And I think neither of those conditions is present here.

[00:23:11] Speaker 01:
Because not only is observation itself not an expressive activity in that it can be engaged in by people who are intending to create speech and people who are not intending to create speech, but also the activity that the ordinance is focused on doesn't have the effect of singling out people because they are engaged in expressive activity.

[00:23:30] Speaker 01:
Because observation of a sideshow is not observation of an expressive event.

[00:23:34] Speaker 00:
So the city then could prohibit

[00:23:37] Speaker 00:
journalists from observing and therefore recording anything that isn't exp... I mean, so a journalist couldn't, I don't know... These brutality.

[00:23:46] Speaker 00:
Yeah.

[00:23:47] Speaker 02:
Like George Floyd, it would be illegal to record the death of George Floyd.

[00:23:52] Speaker 01:
Well, so there's a difference between ordinances in the case law that are focused on suppressing observation for the purpose of preventing speech.

[00:24:04] Speaker 01:
And that, I think, is the key factor in the police conduct cases where courts have recognized that there is a right to observe police in order to later speak about police.

[00:24:14] Speaker 01:
The idea is the observation in those cases where we're talking about observation of police conduct is we have to avoid the situation in which the state uses its power to prevent observation in order to prevent criticism and speech.

[00:24:29] Speaker 01:
But again, that's not the situation in this ordinance.

[00:24:31] Speaker 01:
This ordinance is more similar to a law

[00:24:34] Speaker 01:
that prevents or has the effect, excuse me, has the incidental effect of preventing speech about, in this case it would be police and the hypothetical, because of an interference with police activity.

[00:24:46] Speaker 01:
the cases including Jordan versus Adams County, Fields versus City of Philadelphia, all acknowledge that that sort of role would not be subject to First Amendment scrutiny because it involves generally applicable conduct, interference with police activity, and is not related to

[00:25:05] Speaker 02:
Suppression of expression let me just ask you because me I I grew up in the Bay Area I used to live in Oakland and part of the reason why people attend these sideshows This is they're so the very reason why the ordinance exists because people are so frustrated with these sideshows because they go on and

[00:25:19] Speaker 02:
And there's been criticism of the police that they don't do anything about it.

[00:25:22] Speaker 02:
So part of the reason why people attend these sideshows is to record them to go to the board of supervisors and say, do something about this, which is part of the reason why this thing was passed in the first place.

[00:25:32] Speaker 02:
So if the reason why I'm attending is to record it to show police inactivity, because I'm upset that my neighbor has been turned into this, that would be illegal under the statute, correct?

[00:25:44] Speaker 01:
Yes, if you were standing within 200 feet.

[00:25:46] Speaker 02:
Right, so how is that any different than if it's constitutional or if I'm allowed to record police activity, then why wouldn't I be allowed to record police inactivity?

[00:26:03] Speaker 01:
Well, so I'm having a little trouble answering the question.

[00:26:08] Speaker 02:
But again, I think you said the case law says I'm allowed to record police activity because you want to be able to shine a light on what the police are doing.

[00:26:15] Speaker 02:
I want to go to a sideshow because I want to show the police aren't doing anything.

[00:26:18] Speaker 02:
And I'm frustrated that this is going on.

[00:26:19] Speaker 02:
And that's why I'm recording the sideshow.

[00:26:21] Speaker 02:
Because here's the thing.

[00:26:22] Speaker 02:
There are all kinds of things the police can do about a sideshow.

[00:26:25] Speaker 02:
It's very tricky.

[00:26:26] Speaker 02:
I know that, having least to live in Oakland, I know the problems there.

[00:26:29] Speaker 02:
But they can arrest the people driving the cars.

[00:26:32] Speaker 02:
They can arrest the people with the guns.

[00:26:34] Speaker 02:
And sometimes that doesn't happen.

[00:26:35] Speaker 02:
And people get very upset.

[00:26:36] Speaker 02:
And that's why these things are recorded.

[00:26:38] Speaker 02:
So if I have a right to record the police doing something, don't I also have the right to record the police sitting 500 feet away and not doing something?

[00:26:47] Speaker 01:
Well, certainly you have a right to record the police sitting 500 feet away not doing anything, because then you're recording the police inactivity.

[00:26:53] Speaker 02:
But part of it is you record them not doing anything, and you record the sideshow and all the stuff going on and say, why aren't those cops doing anything?

[00:26:59] Speaker 01:
Well, so again, I think the reason why the county adopted this ordinance to prohibit being present for the purpose of observing a sideshow, which again would include the person who goes to film the sideshow for the purpose of showing that police aren't responding.

[00:27:15] Speaker 01:
That person has put themselves in danger of being hit by a speeding car.

[00:27:20] Speaker 01:
And they are more likely to stay there.

[00:27:21] Speaker 01:
They're in greater danger because of their presence for that purpose.

[00:27:25] Speaker 01:
But the reason why the ordinance regulates their conduct is not because they are intending to speak about police, it's because they are in a place of danger.

[00:27:36] Speaker 01:
And they're more likely to remain there because of their purposes.

[00:27:39] Speaker 00:
But then why the Girl Scout?

[00:27:42] Speaker 00:
I don't understand.

[00:27:42] Speaker 00:
If the kids are sitting there at the table selling cookies, they look up, they see a sideshow, their parents can see the sideshow, they remain there.

[00:27:52] Speaker 00:
Aren't they also in danger?

[00:27:55] Speaker 00:
Why can they stay and the journalist has to leave?

[00:27:59] Speaker 00:
I'm sorry, Judge Bennett.

[00:28:03] Speaker 01:
The county made the determination that a person who is present for the purpose of observing a sideshow within 200 feet creates increased risks of harm to themselves because they are more likely to remain than, for example, the Girl Scout who is hopefully more likely to pull away.

[00:28:24] Speaker 01:
And also they are more likely to create the dangers to others associated with sideshows, including perpetuating the sideshow itself, which sideshows exist for an audience, and the presence of spectators is something that encourages the sideshow to continue.

[00:28:44] Speaker 00:
Why doesn't the ordinance address the situation of someone whose intent

[00:28:50] Speaker 00:
as in this Girl Scout hypothetical.

[00:28:53] Speaker 00:
And we could use someone else whose intent has changed as they're there.

[00:28:57] Speaker 00:
It doesn't punish someone who's just wandering by and incidentally sees the sideshow.

[00:29:04] Speaker 00:
That's correct.

[00:29:05] Speaker 00:
But if that person then stops and starts recording or making notes, it still doesn't punish them.

[00:29:13] Speaker 00:
But why not?

[00:29:15] Speaker 01:
So may I?

[00:29:16] Speaker 00:
Please.

[00:29:17] Speaker 00:
And then we'll move to Judge Bennett's question.

[00:29:18] Speaker 01:
OK, thank you.

[00:29:21] Speaker 01:
So, Your Honor, taking the example of someone who is sitting at a bus stop waiting for a bus when a sideshow occurs in front of them, if they continue to stay at the bus station and the sideshow happens and they incidentally observe it and then they get on the bus, I believe they wouldn't be liable under the ordinance.

[00:29:37] Speaker 01:
If they were to leave their spot at the bus station, walk into the front row of spectators,

[00:29:42] Speaker 01:
then I think you'd have a different story.

[00:29:43] Speaker 00:
But what if they stay there and let their bus pass by?

[00:29:45] Speaker 01:
If they let their bus pass by, I think you'd also have another example where the reason for their presence has changed.

[00:29:52] Speaker 01:
They would be there then not for the purpose of waiting for the bus any longer, but for the purpose of observing the sideshow.

[00:29:59] Speaker 01:
But I think, if I may just finish the answer to your question, even if the person who is sitting at the bus stop

[00:30:07] Speaker 01:
who incidentally looks up at the bus at the sideshow and has, under the hypothetical, the purpose of observing.

[00:30:13] Speaker 01:
Even if that were the case, again, the ordinance still would not target any conduct of theirs related to the creation of speech.

[00:30:21] Speaker 01:
It would target them because of the presence and the reason for that presence.

[00:30:25] Speaker 01:
They then have the presence to observe, not because they have the purpose of recording or speaking about the sideshow.

[00:30:34] Speaker 04:
So in the county's view,

[00:30:36] Speaker 04:
Does the dangerousness of the activity at all inform whether the actions that are being punished are subject to a First Amendment analysis?

[00:30:52] Speaker 04:
In other words, is your argument, would your argument be the same?

[00:30:55] Speaker 04:
It's not expressive activity irrespective of how dangerous the activity was.

[00:31:05] Speaker 01:
Well, I think in just taking this case on the facts, I think it's hard to get away from the fact that this is an inherently dangerous activity.

[00:31:12] Speaker 01:
And the fact that there is such a clear public safety purpose for the ordinance that has nothing to do with expression makes this an easier case.

[00:31:24] Speaker 01:
Thank you very much, counsel.

[00:31:25] Speaker 01:
Thank you.

[00:31:29] Speaker 03:
Thank you.

[00:31:29] Speaker 03:
May it please the court.

[00:31:32] Speaker 03:
The right to record events in public does not depend on whether those events are themselves expressive.

[00:31:38] Speaker 03:
This ordinance does directly impact the protected speech of recording, and it is covered by that footnote in our car.

[00:31:45] Speaker 03:
This ordinance directly impacts an essential element of creating protected speech, and that protected speech can be recording anything from police brutality to a sideshow to a water main break to a fuel spill, et cetera.

[00:31:58] Speaker 03:
If an activity is dangerous,

[00:32:00] Speaker 03:
The public has an especially compelling interest in the free flow of information and reporting about it.

[00:32:06] Speaker 03:
That's why it's a matter of public concern.

[00:32:09] Speaker 03:
Can there be potentially a content neutral rule for safety?

[00:32:12] Speaker 03:
Potentially, yes.

[00:32:14] Speaker 03:
This ordinance, however, is not remotely tailored to any interest in safety because it only punishes the person with the purpose to observe and therefore record and document the sideshow.

[00:32:25] Speaker 03:
not the person who's there for some other reason, even though both are at virtually identical risk.

[00:32:31] Speaker 03:
Ordinance is also over-inclusive as to safety because it punishes someone within 200 feet, but recording from, say, inside a building where they are at much less risk.

[00:32:41] Speaker 03:
So this is not remotely tailored to the interest in protecting safety under strict scrutiny, potentially not even intermediate, but certainly not under strict scrutiny.

[00:32:50] Speaker 03:
And the First Amendment does not require the government to have the purpose

[00:32:55] Speaker 03:
to silence protected speech.

[00:32:57] Speaker 03:
That may be sufficient for a First Amendment violation, but it is not necessary.

[00:33:03] Speaker 03:
Specific intent to silence speech is not an element of a First Amendment claim.

[00:33:08] Speaker 03:
Under reading against Hannah Gilbert, the government can have the most benevolent purpose in the world, a content-based restriction on speech,

[00:33:16] Speaker 03:
is still a violation of the First Amendment, regardless of intent.

[00:33:20] Speaker 03:
The direct operation of this ordinance is to punish an essential element of creating speech in a public forum.

[00:33:29] Speaker 03:
I am not asserting a right to commit reckless driving or speeding.

[00:33:33] Speaker 03:
Those are independent criminal violations.

[00:33:37] Speaker 03:
I'm simply asserting the First Amendment right to stand on a sidewalk

[00:33:40] Speaker 03:
and record events of public concern in a public forum.

[00:33:45] Speaker 03:
The county has not remotely met the First Amendment standard for suppressing that speech, again, as applied to the facts of this case.

[00:33:53] Speaker 03:
This is an as applied challenge on a preliminary injunction.

[00:33:57] Speaker 03:
I'm not asking the court to test all of the outer limits of potential applications.

[00:34:01] Speaker 03:
The ordinance also applies to off-street parking facilities, not necessarily a public forum.

[00:34:06] Speaker 03:
I'm not addressing that.

[00:34:08] Speaker 03:
I'm not talking about someone who is there merely to observe and nothing more on the fact that this case, my client is observing with a purpose to record and document for the purpose of publishing journalism.

[00:34:21] Speaker 03:
That is protected speech on those facts.

[00:34:23] Speaker 03:
This ordinance is likely invalid and unconstitutional on the merits.

[00:34:28] Speaker 03:
Because free speech violations are always irreparable harm, balance of equities always favors free speech, I ask the court to reverse and remand with directions to enter the injunction in my client's favor.

[00:34:38] Speaker 02:
All right.

[00:34:39] Speaker 02:
Thank you very much, counsel.

[00:34:40] Speaker 02:
Thank you both of you for your brief and your argument.

[00:34:42] Speaker 02:
Very interesting case.

[00:34:43] Speaker 02:
I hope the students found this last one worth waiting for.

[00:34:46] Speaker 02:
Very interesting issues in this case.

[00:34:48] Speaker 02:
All right.

[00:34:48] Speaker 02:
We're going to step back and go to conference here in a moment.

[00:34:50] Speaker 02:
For the students who are here,

[00:34:52] Speaker 02:
Our law clerks are going to come up and talk to you and answer any questions you may have.

[00:34:56] Speaker 02:
Just so you understand, you cannot ask – here's a content-based restriction.

[00:35:02] Speaker 02:
You cannot ask questions about the cases you heard today, okay?

[00:35:06] Speaker 02:
And they're certainly not going to answer any questions about those cases.

[00:35:09] Speaker 02:
But if you want to talk to them about what they do in their job and how they got their job and what it's like, all of that is totally fair game, okay?

[00:35:15] Speaker 02:
So thank you very much.

[00:35:16] Speaker 02:
This particular panel is adjourned for the week.

[00:35:19] Speaker 02:
Thank you.