[00:00:00] Speaker 04: May it please the court, Alex Little on behalf of Leda Health. [00:00:03] Speaker 04: I'd like to request five minutes for rebuttal. [00:00:07] Speaker 04: Leda Health was founded by sexual assault survivors to service the 80% of women and men who choose not to report their sexual assaults. [00:00:17] Speaker 04: In the aftermath of a sexual assault, a survivor has essentially five different options. [00:00:22] Speaker 04: They can choose, in some circumstances, to go to the police. [00:00:25] Speaker 04: Many do not. [00:00:26] Speaker 04: If they do so, the police will often be in charge of many aspects of that type of relief. [00:00:32] Speaker 04: They can choose to pursue civil relief. [00:00:34] Speaker 04: They can choose to go public. [00:00:36] Speaker 04: In fact, this company was first called the Me Too Kid because it arose out of that political moment. [00:00:42] Speaker 04: They could also, in some circumstances, pursue extrajudicial adjudications, whether it is in terms of a school, a Title IX proceeding, a board complaint, or things of that sort, or they could choose fifth to do nothing at all. [00:00:55] Speaker 04: LIDA's kit serves all five of those types of victims and how they may wish to move forward. [00:01:02] Speaker 04: In the state of Washington, however, [00:01:03] Speaker 04: When LIDA seeks to do that, it is not permitted to provide a message that this can be done at home, over the counter, or in the self-collected way. [00:01:13] Speaker 04: It is a message alone that renders the activities that it does to be illegal. [00:01:18] Speaker 04: And that way, the statute's unconstitutional. [00:01:22] Speaker 01: So I think that part of the statute, though, says that just selling the kit. [00:01:28] Speaker 01: So you have the part that's about the way it's marketed, and then it's 2A and 2B, I think. [00:01:34] Speaker 01: So to what extent is the anything about the marketing already just encompassed in the fact that you can't sell the kit which would not, that provision is not as much sounding like speech? [00:01:48] Speaker 04: I disagree that you cannot, there's no prohibition on just selling the kit because what that's, what two does not exist without A or B. So two says in two different conditions you can't sell the kit. [00:01:59] Speaker 04: And so there's no standalone prohibition on selling a sexual assault kit. [00:02:03] Speaker 04: And we know that because the sexual assault kit definition in one is massively over-inclusive. [00:02:09] Speaker 04: It includes any item that can be used to collect sexual assault evidence. [00:02:13] Speaker 01: But 2B says, a person may not sell, offer for sale, or otherwise make available a sexual assault kit if the person intends, knows, or reasonably should know that it will be used at home, basically. [00:02:22] Speaker 04: Yes, but then that second part is still speech. [00:02:25] Speaker 04: It's a different speech issue than the first. [00:02:27] Speaker 04: The only way you would know whether it's intended to be done, or it's reasonably likely to be done, or whether they are wanting to do it, is through speech. [00:02:36] Speaker 01: But that's true of any mens rea. [00:02:38] Speaker 01: I mean, we only know really about what people are thinking because of things that they say usually, at least largely. [00:02:44] Speaker 01: And so any kind of mens rea element of a statute could be said, well, that's really speech, and then you challenge it as speech. [00:02:52] Speaker 01: I don't really understand how this is [00:02:54] Speaker 04: I'm not the same as any other kind of mental state requirement as part of a statute because the mental state your honor goes to expressive conduct and so in to be the expressive conduct of how You are to use this product or you can use this product. [00:03:09] Speaker 04: It's not saying that you shouldn't go to police It's not saying you shouldn't do X or Y. It's saying we can't in this circumstance and [00:03:16] Speaker 04: allow you to know certain information. [00:03:18] Speaker 04: I'll give a very specific example. [00:03:20] Speaker 00: Well, suppose you had a statute that said that you can't sell drugs to somebody if you know that they intend to use it for suicide, making up a statute. [00:03:33] Speaker 00: And how would you know that? [00:03:34] Speaker 00: It would usually be something you said. [00:03:38] Speaker 04: I think that's correct, Your Honor. [00:03:40] Speaker 00: So what's the problem with that? [00:03:41] Speaker 04: I think with that secondary portion, what you're getting at is the thing that they know or may not know is being done with that drug is the use of suicide. [00:03:50] Speaker 04: Suicide is not a permissible activity. [00:03:52] Speaker 04: Most states prohibit it. [00:03:54] Speaker 04: And so there's no bound to how the state could police speech [00:04:00] Speaker 04: by putting it in the same sort of format we have here. [00:04:03] Speaker 04: I cannot, for example, sell you a paper if I never intend that you are going to use this paper to disparage Envermectin. [00:04:12] Speaker 04: I am not going to sell you a computer website service if I know or expect that you're going to use that computer website service to disparage a political party, even a particular political party. [00:04:24] Speaker 00: So B would be okay if it said, if the statute made using the kit for, other than by law enforcement or a healthcare provider, illegal, and it would be okay? [00:04:40] Speaker 04: I think it's a different statute. [00:04:42] Speaker 04: Let me give you sort of the most, the reason, I mean, we know that's not what they're doing here and they're targeting the communication to victims of what you can and cannot do legally, is that Apple Computer, your first argument today, many hours ago, talked about, I mean, Apple has iPhones. [00:04:59] Speaker 04: They certainly know. [00:05:00] Speaker 04: And their legal counsel certainly knows that iPhones are used across the country to take photographs of men and women who've been sexually abused by themselves, and that those photographs make their way into criminal prosecutions. [00:05:14] Speaker 04: They reasonably know that. [00:05:15] Speaker 04: And so the reading that the court is suggesting here is that Washington cannot as-banned iPhone sales, period. [00:05:24] Speaker 04: Because they have to say that an iPhone was a sexual assault kit. [00:05:27] Speaker 04: It is. [00:05:28] Speaker 04: It absolutely is. [00:05:29] Speaker 04: And I think that's one part that the district court just completely got wrong. [00:05:32] Speaker 04: The sexual assault kit definition is wildly broad. [00:05:35] Speaker 04: But it's what the state's the ball. [00:05:36] Speaker 01: I didn't understand you to be making just an overbreath or vagueness standalone argument in this case. [00:05:41] Speaker 01: I'm not. [00:05:41] Speaker 04: And I have to be careful my terms. [00:05:44] Speaker 04: That's not the right way I meant to use that. [00:05:47] Speaker 04: It is incredibly broad and what it covers. [00:05:49] Speaker 04: And so the definition is straightforward. [00:05:52] Speaker 04: Is this a product? [00:05:53] Speaker 04: that can collect evidence of sexual assault. [00:05:55] Speaker 04: To break down that definition, we need to know what evidence of sexual assault is. [00:05:59] Speaker 04: It does not say forensic evidence. [00:06:00] Speaker 04: It does not say DNA. [00:06:02] Speaker 04: It does not say saliva. [00:06:03] Speaker 04: It does not say secretions of a genital area. [00:06:05] Speaker 04: It says evidence of sexual assault. [00:06:07] Speaker 04: And so then I think the court would have to go and say what sort of evidence is relevant or introduced in a sexual assault case. [00:06:13] Speaker 04: Right now, I would say all of you there have sexual assault kits. [00:06:17] Speaker 04: ballpoint pen that allows a survivor to write down her immediate his or her immediate response to the assault and that statement is introduced well that pen allowed you to collect that evidence I guess I think that you're trying to spill in your vagueness argument or something though because it's not vague and I mean I don't think it's big it's just truly that broad and the reason that matters [00:06:40] Speaker 04: is because what they're prohibiting here is the collection of a whole host of legal activities that people do regularly all the time. [00:06:48] Speaker 04: It also goes to the tailoring question under Central Hudson. [00:06:51] Speaker 00: Why do people do it regularly all the time? [00:06:53] Speaker 04: Well, people regularly self-collect evidence that goes into a sexual assault case, whether or not it goes criminal or civil. [00:07:01] Speaker 01: But they're not selling it with that intent. [00:07:06] Speaker 04: Well, it's not just the selling it for that intent. [00:07:09] Speaker 04: Prohibition B is to also include make available. [00:07:12] Speaker 04: And so one of the examples we use in our brief, and the state hasn't tried to refute it because I don't think they can, is that if I'm a parent of a minor who has been sexually assaulted, and I have any item that can be used to collect evidence, my iPhone, Polaroid camera, a plastic Ziploc bag, and I tell my child, here, I'm going to give you this, and I want you, I'm going to make it available to you to collect evidence, and we're going to do it at home, and we're not going to go into the police department. [00:07:37] Speaker 04: I've made that available to you that it's prohibited by 2B. [00:07:42] Speaker 00: First of all, why do you seem to be staying away from A and just concentrating on B? [00:07:47] Speaker 04: I don't intend to. [00:07:48] Speaker 04: That's the court that sort of directed me to B. I think A is even more problematic because there the only thing that renders the item illegal is how it is marketed. [00:07:57] Speaker 04: I think we use the example of our brief. [00:07:59] Speaker 04: It's like page 21 or [00:08:00] Speaker 04: or 22, where we give two different photographs. [00:08:03] Speaker 04: And one item is legal to sell, one item is not. [00:08:06] Speaker 04: And the only reason it's legal to sell is because of the viewpoint discrimination that the marketing company, or the company that makes the kit, says, hey, you should buy this hospitals and police departments or folks who are going to use it that way because it's a really good sexual assault kit. [00:08:20] Speaker 04: Same product, same advertisement. [00:08:22] Speaker 04: Hey, you can also do this at home, which is factually true and legally permissible. [00:08:27] Speaker 04: I think A is a clear prohibition on speech. [00:08:31] Speaker 04: It's content-based. [00:08:33] Speaker 00: But it leads pretty directly to a central Hudson analysis. [00:08:38] Speaker 04: I think there's a good question whether central Hudson applies or whether it's strict scrutiny. [00:08:42] Speaker 04: And I'll address that. [00:08:43] Speaker 04: But we think we win a remand and the entry of a preliminary injunction under either standard, whether it's central Hudson or strict scrutiny. [00:08:50] Speaker 01: So let's talk about why you think you win under central Hudson. [00:08:53] Speaker 04: I think the most direct route, Your Honor, is that it's not nearly tailored. [00:08:56] Speaker 04: to achieve an important state interest. [00:08:59] Speaker 04: The state sort of throws out in their brief a couple of different interests. [00:09:03] Speaker 04: It's generally the idea that we think that it will harm sexual assault survivors. [00:09:07] Speaker 04: Now, what the statute actually prohibits is telling someone, marketing, that it can be done at home, that it can be done [00:09:14] Speaker 04: these items can be found over the counter. [00:09:17] Speaker 03: What they want to do is they want to make sure that these folks are able to get to a hospital and get the proper treatment that they need. [00:09:23] Speaker 03: That's what they've stated is their purpose in doing this. [00:09:27] Speaker 04: There's no, it's a laudable goal and but that this doesn't actually achieve that in a sort of reasonable fit way that has ever been upheld by a court because the reasonable fit for that might be if you're going to sell a kit like this you need to include information to tell [00:09:40] Speaker 04: Potential victim to go to the hospital you may need to provide directions or easily accessible directory. [00:09:45] Speaker 04: There's a whole host of much more The internal document did some of that it did in fact We don't have the kit because we're here on a motion to dismiss, but the kit has a it does say on the supplemental excerpts There's a card the first card that you get and and you can certainly see this in the case in Pennsylvania It's public record [00:10:03] Speaker 04: on the preliminary hearing there on the PI, the first thing the kit said is, you should go to a hospital because you can get more complete care there than here. [00:10:13] Speaker 04: But we respect your autonomy. [00:10:15] Speaker 04: We respect your choice. [00:10:16] Speaker 04: And if you choose not to do so, here's what your options are. [00:10:20] Speaker 01: So I had understood that one of the main purposes here was to avoid the misleading impression that this would be admissible in a prosecution of the of the assaulter. [00:10:30] Speaker 04: I think that's certainly what they want you to believe. [00:10:32] Speaker 04: So I have a whole host of responses to that. [00:10:35] Speaker 04: The first is they ignore entirely that self-collected evidence is admissible. [00:10:40] Speaker 01: And what case in Washington has admitted it against a sexual assault defendant? [00:10:44] Speaker 04: Well, there's in our complaint, all the way back in our complaint, we cite three. [00:10:48] Speaker 01: Can you point me to that? [00:10:49] Speaker 04: Yes. [00:10:53] Speaker 04: That's one of the first paragraphs in our complaint, Your Honor, in the excerpt of record. [00:11:06] Speaker 03: where the kits were used and admitted? [00:11:09] Speaker 04: The kits were not used and admitted, but self-collected evidence was. [00:11:11] Speaker 01: Okay, but I asked about the kit. [00:11:13] Speaker 04: Well, let me answer that two parts. [00:11:15] Speaker 04: The kit is intended to help survivors collect evidence in a better way than just no kit at all. [00:11:22] Speaker 04: And so, I mean, we have... [00:11:24] Speaker 04: a very clear example of maybe not sexual assault evidence. [00:11:28] Speaker 03: But isn't that what they're trying to do, stop sort of this false sense of security in a sense that you're providing something that really doesn't do a whole heck of a lot because it won't be admitted? [00:11:41] Speaker 04: First I'd say that second assumption is completely incorrect. [00:11:45] Speaker 04: The first point, and certainly not in this record, the first point I would say is that there are very different ways to achieve that. [00:11:52] Speaker 04: And what Judge Bassoon in the Middle District of Pennsylvania who was first had actually evidentiary hearing said that the hearing was revelatory because it explained that the sorts of assumption the state is making about whether it would be harmful are completely unmoored from actual information. [00:12:06] Speaker 04: This is speculation. [00:12:07] Speaker 04: And this court and others across the country have said you can't speculate that this may happen. [00:12:11] Speaker 04: There's a great 11th Circuit case, it's R&R Railroad, that talks about keeping speech out of the hands of the citizens because you're concerned about the choice they might make as a result. [00:12:21] Speaker 04: is not a legitimate state interest. [00:12:23] Speaker 03: Counsel, I'm friends with various prosecutors throughout my career and they would rather not have an officer talk to a victim so that they might screw up some information if there's something wrong with that, the collection of evidence. [00:12:42] Speaker 03: So I think they very much, the state very much cares about [00:12:46] Speaker 03: collecting information that could ultimately be used for the prosecution of this? [00:12:53] Speaker 04: They absolutely do, and we don't dispute that. [00:12:55] Speaker 04: On ex-ripper record 151, we have two examples of cases where people self-collected evidence, brought it in, it was admitted the courts upheld the admission and it led to conviction. [00:13:05] Speaker 04: They weren't the kids because the kids have not existed back at that time period. [00:13:09] Speaker 00: What's sort of disturbing about the kid is because it's just stuff you have around your house. [00:13:16] Speaker 04: Well, maybe you might not have it around your house, but you certainly could get it at Walgreens. [00:13:19] Speaker 04: And so what the kit essentially is, is items that any victim could get, plus the information about how to use it in a way that may empower that victim to make other choices. [00:13:29] Speaker 04: Every question the court has had. [00:13:30] Speaker 01: But the point of that is to make them think that this is going to be usable. [00:13:34] Speaker 01: And the state is saying we're worried because it's actually not going to be usable, so this whole thing is a misleading product. [00:13:39] Speaker 04: Then that takes you directly to narrow tailoring. [00:13:41] Speaker 04: If that is the issue, warnings are the easiest and most direct route. [00:13:45] Speaker 04: and the court cannot say we are going to keep and allow the state to monopolize the entire fields of discussion about this topic and instead require warnings and let individuals choose. [00:13:58] Speaker 04: They could have also, if they're concerned, Your Honor, they could state, we're going to explicitly bar in our evidence sharing code self-collected evidence. [00:14:05] Speaker 04: They haven't done that. [00:14:06] Speaker 04: If they did that and someone likely to help sought to have a kit, well then there could be a very direct consumer protection claim under a standard consumer protection lawsuit [00:14:15] Speaker 04: You're alleging fraudulent stuff. [00:14:16] Speaker 04: They did not bring a case like that because they can't, because the truth is that evidence like this, I'll go back to maybe 25, 30 years ago, maybe longer, but the Bill Clinton impeachment case relied in great detail on self-collected semen from an individual who was a witness involved. [00:14:32] Speaker 04: That was done by a former DC surface judge who became the special prosecutor. [00:14:37] Speaker 04: He certainly understood there might be concerns about how that evidence was collected. [00:14:41] Speaker 04: But when you drill down to it, [00:14:43] Speaker 04: The state's asserted interest evaporates. [00:14:46] Speaker 04: And many of their affidavits that were used for the preliminary injunction appeal, they talk about, well, maybe it's admissible. [00:14:53] Speaker 04: I'm not sure if it's admissible. [00:14:54] Speaker 04: Maybe it'll get cross-examined a lot. [00:14:56] Speaker 04: It's essentially the state kind of voicing potential concerns. [00:15:00] Speaker 04: But drilled down, the concerns don't carry the weight that would allow them to have a complete blanket ban on truthful speech. [00:15:07] Speaker 04: It's undeniably truthful. [00:15:08] Speaker 01: I think I should cut you off, because I'll still give you three minutes for rebuttal, but let's hear from the other side. [00:15:19] Speaker 02: Good afternoon, Your Honors. [00:15:20] Speaker 02: Tara Hines for the State of Washington. [00:15:23] Speaker 02: Over-the-counter sexual assault evidence kits exploit sexual assault survivors at one of the hardest and most vulnerable times of their lives. [00:15:30] Speaker 02: These kits are not evidence. [00:15:32] Speaker 02: They have never been admitted into evidence in any court. [00:15:36] Speaker 00: The kit is not evidence. [00:15:37] Speaker 00: The question is whether material collected. [00:15:42] Speaker 00: And the one thing the kit does do is provide some direction to a place to do the DNA. [00:15:49] Speaker 02: None of the results from these kits have ever been admitted in any court in any state and this company's been around for five years. [00:16:00] Speaker 01: So I had trouble figuring out though that statement could be true if no one has even tried. [00:16:06] Speaker 01: Do you have a case that shows that it was found inadmissible? [00:16:11] Speaker 02: No, Your Honor, we don't have a specific case. [00:16:13] Speaker 02: But the point is, is this kit being marketing this kit as evidence when the fact that it has never been admitted into any court or any state, and there are very significant barriers. [00:16:22] Speaker 01: But it's just a little bit odd, because we don't have a case either way. [00:16:27] Speaker 01: So you're assuming it won't be admissible, but I think usually there's a presumption of evidence being admissible. [00:16:32] Speaker 02: Well, we're not just assuming, Your Honor. [00:16:33] Speaker 02: When the prosecutors testified before the legislature, they identified the very significant barriers to admissibility here. [00:16:40] Speaker 02: They identified how is the chain of custody going to be established when a survivor is self-collecting evidence and then shipping it off to a... What about the examples that were given in the complaint and in the briefs of people who collected? [00:16:52] Speaker 00: I think they were both... [00:16:54] Speaker 00: underwear and used the DNA evidence for it. [00:16:57] Speaker 02: It was not a single one of those cases involved the self-collection of evidence, sending off to an out-of-state lab, private lab, that was not a law enforcement. [00:17:05] Speaker 00: Every single one of those cases... But they don't have to send it off to the lab. [00:17:08] Speaker 02: They could just keep it. [00:17:09] Speaker 02: They can keep it, but they've still got established chain of custody. [00:17:13] Speaker 02: They've got established. [00:17:14] Speaker 02: I mean what lead is offering is the test results from these what you're saying is that those cases don't involve doing any DNA doing an absolutely and there are many barriers. [00:17:24] Speaker 02: There's not just the chain of custody. [00:17:26] Speaker 02: There's also foundational issues including the test results. [00:17:29] Speaker 02: How are you going to overcome here to say barriers? [00:17:31] Speaker 02: How are you going to establish authenticity? [00:17:33] Speaker 02: How are you going to deal with the confrontation clause requirements? [00:17:36] Speaker 02: This lab is in Florida. [00:17:38] Speaker 02: They're not required. [00:17:39] Speaker 02: I mean, they're outside of Washington state subpoena power. [00:17:42] Speaker 02: And when you sell this kit as an evidence kit, you are saying that this is going to be admissible in a court of law. [00:17:48] Speaker 02: You are marketing this kit to survivors of sexual assault. [00:17:53] Speaker 03: What about their argument that [00:17:55] Speaker 03: Well, we're providing more information. [00:17:57] Speaker 03: There was another way to do this, just to indicate as much in the packaging. [00:18:01] Speaker 03: Why isn't that a more narrow way to tailor the restriction? [00:18:07] Speaker 02: Well, one, Your Honor, first, this is conduct and not speech. [00:18:11] Speaker 02: So I will get to it. [00:18:12] Speaker 02: I mean, the fact that you're looking at the labels to determine whether the intended use is prohibited does not mean this is speech. [00:18:18] Speaker 02: And this is exactly the issue that was presented in the Whitaker case. [00:18:22] Speaker 02: In that situation, selling saw pimento extract was perfectly legal, as long as you did not include a label saying it could be used for the treatment of a particular illness. [00:18:32] Speaker 02: Right? [00:18:33] Speaker 02: You can sell a copper bracelet, but you can't say that that can be used for the treatment of arthritis. [00:18:39] Speaker 02: But what's still at issue there is not speech. [00:18:42] Speaker 02: It is conduct, because what is being prohibited is selling that product under that label. [00:18:49] Speaker 02: And it goes back to the US Supreme Court's decision in Wisconsin v. Mitchell that the evidentiary use of speech for determining intent [00:18:59] Speaker 02: for determining mens rea, for determining elements of a crime, does not burden speech. [00:19:04] Speaker 02: It is still conduct that is being prosecuted in that context. [00:19:08] Speaker 02: For example, in hate crimes. [00:19:10] Speaker 02: That is still conduct. [00:19:11] Speaker 02: And so every single circuit court that has addressed this type of issue, including in the City of Providence case, including in Nicopure, says that when you're looking at the label just to look at the intended use, that is still conduct, not speech. [00:19:25] Speaker 02: The cases that they're citing are advertising bans. [00:19:28] Speaker 02: Those are bans directly on speech, where the underlying product is perfectly legal. [00:19:33] Speaker 00: I suppose it is speech. [00:19:34] Speaker 00: What about Central Hudson? [00:19:35] Speaker 00: And what about, in particular, the contention that this is not targeted sufficiently because you could simply have a rule that says you have to tell people that it may not be admissible in evidence? [00:19:48] Speaker 02: Yes, Your Honor. [00:19:49] Speaker 02: Well, one, they've misstated the taste. [00:19:51] Speaker 02: It's not narrowly tailoring. [00:19:53] Speaker 02: It is no more extensive than necessary. [00:19:56] Speaker 02: And what the courts look to is whether it's a reasonable fit between the ends and the means chosen to accomplish those ends. [00:20:03] Speaker 02: It doesn't need to be a perfect fit. [00:20:05] Speaker 02: So this is not strict scrutiny. [00:20:07] Speaker 02: And courts are loathe to second-guess legislatures on their determination. [00:20:13] Speaker 02: Now here, the Washington legislature determined that if you market this kit as evidence, [00:20:18] Speaker 02: You're telling sexual assault survivors that this is going to be admissible in court. [00:20:22] Speaker 00: So you can simply require that they say it isn't. [00:20:26] Speaker 02: Including a disclaimer is not sufficient to address that issue. [00:20:29] Speaker 02: The legislature reasonably determined that saying we don't guarantee that this is going to be admissible in court, when in all likelihood, it could never be. [00:20:37] Speaker 00: What's odd about this case is that the brochure that's in the [00:20:46] Speaker 00: kit, you could post on Facebook or YouTube, and that would be fine, right? [00:20:56] Speaker 00: Right. [00:20:57] Speaker 00: Yes. [00:20:58] Speaker 00: It has a whole bunch of directions about how to do things. [00:21:00] Speaker 00: And if it said that you could do this, you couldn't bat that. [00:21:06] Speaker 00: And everything in the kit is perfectly legal and commonplace. [00:21:13] Speaker 00: And the only thing that's a little unusual is this possibility of sending it off to the lab. [00:21:18] Speaker 02: Well, I mean, that's the same with the copper bracelet for arthritis, Your Honor. [00:21:22] Speaker 02: Copper bracelets are legal. [00:21:25] Speaker 02: You can also post on Facebook that copper bracelets prevent arthritis. [00:21:30] Speaker 02: What you can't do is sell a copper bracelet saying it cures arthritis. [00:21:34] Speaker 02: That is conduct. [00:21:36] Speaker 02: That is not speech. [00:21:37] Speaker 02: And the fact that the intended use for the product is determined by reference to speech does not render it speech. [00:21:44] Speaker 02: So right there, we're at the conduct phrase. [00:21:47] Speaker 02: And if this court were to say it would implicate speech, think about what that could do to FDA regulatory. [00:21:53] Speaker 02: Right there, under the FDA regulations, you cannot sell products as treating particular drugs until you have received FDA approval. [00:22:02] Speaker 02: What you are saying might be true You know what you're saying or you know it might not be possible to prove immediately by the government that it's untrue But it's still conduct it is not speech, but even if you do get to the To the central Hudson factors. [00:22:18] Speaker 02: I think Lita fails at the very threshold steps The First Amendment doesn't apply one if there is an offer to engage in illegal conduct and I think that argument is totally circular though because [00:22:31] Speaker 01: They're challenging the statute that makes this illegal conduct. [00:22:34] Speaker 01: And I don't know how you can defend it then by just saying it's illegal conduct. [00:22:38] Speaker 01: How is this not totally circular? [00:22:39] Speaker 02: Well, in Whitaker, they said it sounds circular, but rejected that argument. [00:22:43] Speaker 02: Because assuming that the government can regulate this product, assuming that Washington could say you cannot sell this product, they have the right to regulate based on the label. [00:22:54] Speaker 02: Because the evidentiary use, and they went back through the analysis and relied again on the Wisconsin v. Mitchell. [00:22:59] Speaker 02: that referencing the label itself is not a burden on speech. [00:23:17] Speaker 02: What the Whitaker case says is that it seems like there's a singularity to it, but it rejected that argument. [00:23:24] Speaker 02: Going back to the Wisconsin v. Mitchell argument that the evidentiary use of speech to determine an element or an intended use of a product does not implicate speech. [00:23:34] Speaker 02: that doesn't render it conduct. [00:23:36] Speaker 02: And in the Whittaker case, which is very squarely on point, I mean, Sapa metal extract is perfectly legal as long as it's not accompanied by a label doing a particular thing. [00:23:45] Speaker 03: But I guess I thought that, you know, it needed to be lawful conduct. [00:23:50] Speaker 03: and also not misleading. [00:23:58] Speaker 02: Isn't that the issue? [00:24:08] Speaker 02: It fails at the illegality, the threshold prong of Central Hudson. [00:24:12] Speaker 02: So it did not go through the Central Hudson analysis. [00:24:15] Speaker 02: It said, one, this is conduct, not speech under Wisconsin v. Mitchell, and two, even if you get to Central Hudson, you fail at the threshold step because it's illegal conduct. [00:24:25] Speaker 02: But there is another category under Central Hudson. [00:24:28] Speaker 02: The First Amendment doesn't apply if it's illegal conduct or if it's inherently misleading. [00:24:34] Speaker 02: And the central HUD resistance standard only requires that it is more likely to deceive consumers than not. [00:24:41] Speaker 02: And calling this sexual assault evidence kits [00:24:44] Speaker 02: is more likely to deceive consumers, the targeted consumers in the specific context here, than it is not. [00:24:52] Speaker 02: Because not only has this never been admitted into court, but they have never discussed how these barriers would be overcome. [00:25:00] Speaker 02: How would you get over confrontation clause requirements? [00:25:03] Speaker 02: How would you get through the foundation and authenticity issues? [00:25:06] Speaker 02: There is a huge line of difficulties that they would have to overcome. [00:25:11] Speaker 02: And then even after that, [00:25:13] Speaker 02: If conceivably those could be overcome, then the burden would fall squarely on the sexual assault survivor to testify in excruciating detail about the forensic collection of their own evidence. [00:25:26] Speaker 02: And that is not something that is apparent when they're buying a sexual assault evidence kit. [00:25:31] Speaker 02: So this product, Washington's legislature concluded, is harmful to sexual assault survivors. [00:25:39] Speaker 02: They are likely to compromise the evidence that could be available if they were to choose to go to a hospital, that it is not really serving any purpose because this evidence is not likely to be admissible into evidence. [00:25:51] Speaker 02: Prosecutor after prosecutor testified and submitted evidence before the legislature saying this will compromise sexual assault prosecutions. [00:26:00] Speaker 02: I won't prosecute. [00:26:01] Speaker 02: crimes when this is done through the self collection of evidence because of the barriers would be so difficult to overcome and the trauma to the sexual assault survivors would be so severe and so in that context Certainly the legislature could conclude that this is more likely to deceive than it is not and so right there you fail at the central Hudson threshold factors And you don't need to go through the first amendment analysis because the first amendment does not apply but if you do the [00:26:32] Speaker 00: The fact that it's misleading or untrue all relies on reading evidences, meaning immiscible evidence in court. [00:26:40] Speaker 02: which I think under Herrera, under this court's interpretations, you interpret the language based on the context in which the product is sold, based on the targeted market. [00:26:53] Speaker 02: And this court has recognized that when you're talking about things like legal issues, when you're talking towards sensitive audiences, you've got to take that context into consideration when you determine whether it is more likely to deceive than not. [00:27:08] Speaker 02: Now, they are targeting sororities. [00:27:11] Speaker 02: Often filled with teenagers, they're not likely to know what the evidentiary burdens are to introducing the self-collected evidence. [00:27:19] Speaker 02: They're not likely to know that they're going to have to get on the stand to try to testify about things that are completely outside their own experience and their expertise about the forensic collection of evidence. [00:27:31] Speaker 02: They're not likely to know that if they try and attempt to do this, that will compromise their ability to go to a SANE. [00:27:36] Speaker 02: They're not likely to know that once they collect any of this evidence and ship it off, we have no way of getting that expert to come back to Washington and testify in their favor. [00:27:47] Speaker 02: And that means they're not going to be able to be cross-examined about that DNA evidence. [00:27:51] Speaker 01: And so why couldn't there just be a huge warning on the outside of the kit that says, this can't be used in court? [00:27:57] Speaker 02: Well, I mean, Your Honor, it's being marketed for the self-collection of evidence. [00:28:02] Speaker 02: So the legislature could clearly reach the conclusion, a very reasonable conclusion, that that warning would be compromising, you know, it's being marketed as evidence, and then saying it's not evidence is completely... [00:28:16] Speaker 02: confusing, right? [00:28:17] Speaker 02: And so this court does not second-guess legislatures, and they don't require the narrowest possible means. [00:28:25] Speaker 02: What they do is say, is there a reasonable fit between the means and the ends? [00:28:30] Speaker 02: And here, the legislature has looked at this product. [00:28:33] Speaker 02: It has received a lot of testimony from experts, from hospitals, from survivor advocates, from law enforcement. [00:28:40] Speaker 00: But I think what Judge Friedland's question is, or at least what my question is, [00:28:44] Speaker 00: is if you had a product that said, if the kit said on the front of it, the products, the results of this collection are very unlikely to be admissible in court. [00:29:00] Speaker 00: Would that violate the statute? [00:29:02] Speaker 02: I mean, I think in that context, it probably wouldn't even fall within the statute. [00:29:06] Speaker 02: If it's not being marketed for the self-collection of evidence, and it's saying, here is a kit. [00:29:11] Speaker 02: It has never been used as evidence. [00:29:14] Speaker 02: It cannot be used as evidence. [00:29:15] Speaker 02: It's not likely to fall under either A or B, right? [00:29:19] Speaker 02: Because in that context, it's not necessarily [00:29:21] Speaker 02: reasonable intent at that point that it would be used for the self collection of evidence the problem is these are being marketed for the self collection of evidence the problem is that evidence I'm not I said this before I think that and saying that this is evidence is not [00:29:42] Speaker 00: all that clearly misleading, because evidence isn't all that clear. [00:29:45] Speaker 00: I mean, it may be that the most people think of evidence having something to do with the court, but it's [00:29:53] Speaker 00: Not really what the word means. [00:29:55] Speaker 02: Well, Your Honor, if you're marketing this to sexual assault survivors, that's clearly the connotation there. [00:30:01] Speaker 02: And the court does, courts do recognize that it is very important to understand the context in which these products are being sold, and in particular, the lack of knowledge or knowledge of the consumer that are being targeted. [00:30:13] Speaker 02: And here, where you're talking about sexual assault survivors, then calling this an evidence kit is connoting that it will be... Somebody might want it, for example, to be proof of paternity later on. [00:30:23] Speaker 02: And then they shouldn't be marketing as the evidence collection kit. [00:30:28] Speaker 02: That's the part that is deceptive. [00:30:30] Speaker 00: That's evidence. [00:30:31] Speaker 00: I want evidence of who it was who raped me in case I needed it for some reason later on. [00:30:36] Speaker 02: And, Your Honor, I think under the central Hudson prong, you don't need to look and see if there's every possible scenario. [00:30:41] Speaker 02: The question is, is it a reasonable means that is a reasonable fit between means and ends? [00:30:48] Speaker 02: And here it clearly is. [00:30:49] Speaker 02: This product will compromise [00:30:51] Speaker 02: Successful prosecutions in the large scale and so you know it first. [00:30:57] Speaker 02: It's it's you know it's a product that deals with Conduct not speech and the legislature very reasonably determined that it would compromise sexual assault prosecutions and This court should respect the judgment of the legislature. [00:31:13] Speaker 02: It does not target expression It does not violate the first amendment Thank you. [00:31:19] Speaker 02: Thank you. [00:31:19] Speaker 02: Let's hear rebuttal [00:31:22] Speaker 04: One of the difficulties of responding to the arguments in this case, especially with no opportunity, we got a dismissal at the initial pleading stage, is to be able to rebut any of these things factually or with any sort of length other than short briefs. [00:31:36] Speaker 04: Everything that the state has said about immiscibility, I could sit here for an hour late into the day and explain is not true, but it's beside the point because [00:31:45] Speaker 04: Judge Bereson's point is exactly correct. [00:31:47] Speaker 04: Number one, there are huge swaths. [00:31:49] Speaker 04: The reason I started with the four or five different things a sexual assault survivor may want to do is that four of them have nothing to do with criminal prosecution. [00:31:56] Speaker 04: And we know on this record, they've conceded that vast swaths of victims don't seek criminal prosecution. [00:32:02] Speaker 04: The state of Washington would tell all of those victims, [00:32:04] Speaker 04: You can't collect even evidence of semen if you want to go public. [00:32:09] Speaker 03: But isn't that how you're advertising this product as a collection of evidence? [00:32:13] Speaker 04: They are, I mean, they're not advertising the product, no. [00:32:16] Speaker 04: They are saying to a, the way that Lena's business model works is we're going to work with the sorority, we're going to work with the unhoused, we're going to work with the immigrant groups, groups who don't want to go to the police. [00:32:25] Speaker 04: And we're going to say there's still an opportunity to you to have some sort of collection of what has happened as opposed to nothing. [00:32:31] Speaker 04: And then they provide wraparound services which include the free provision of the kit with instructions about how to do it and a care team around them with a number or an app as to how to actually use those things. [00:32:42] Speaker 04: None of that is allowed. [00:32:43] Speaker 00: This kit is not being sold at all? [00:32:45] Speaker 04: No. [00:32:46] Speaker 04: And that's in the record. [00:32:47] Speaker 04: It's been in the record. [00:32:49] Speaker 04: From their affidavit, they give it out as part of comprehensive services. [00:32:53] Speaker 04: And the reason they do that is because it's a necessary part of what they want to do, which is to empower survivors. [00:32:59] Speaker 04: But Judge Berzon, the reason there's such sort of confusion about that point is that Washington, from the beginning, has confused every aspect of what [00:33:08] Speaker 04: It is trying to attack what it sees, and you see this in the legislative record. [00:33:12] Speaker 01: So you're saying you're falling under make available, not under sell or sale? [00:33:16] Speaker 04: Yes, as this provision, absolutely. [00:33:18] Speaker 01: So how does the company make money? [00:33:20] Speaker 04: They have a service contract with a sorority, for example. [00:33:22] Speaker 04: We're going to provide... You are selling it to the sorority. [00:33:25] Speaker 04: Not selling it. [00:33:25] Speaker 04: No, it's just like the whole services. [00:33:27] Speaker 04: We're going to provide sexual assault response services and prevention and STI services, for example, to a group like a sorority. [00:33:33] Speaker 04: As part of that provision of services, wraparound services, we provide kits as well. [00:33:38] Speaker 04: There's not like a dollar per kit. [00:33:39] Speaker 00: Then you are selling. [00:33:41] Speaker 00: It's part of your services. [00:33:42] Speaker 04: It's part of the services, yes. [00:33:43] Speaker 04: But the kits aren't sort of being marketed out, hey, go on Amazon, go buy this. [00:33:47] Speaker 01: And then once one is used and it gets sent to your lab, do they get a fee for that? [00:33:51] Speaker 04: No. [00:33:52] Speaker 04: But let me sort of say that point again. [00:33:55] Speaker 04: That decision about what to do with the evidence is solely in the survivor's hands. [00:33:59] Speaker 04: They have choices. [00:34:00] Speaker 04: They can do nothing with it. [00:34:01] Speaker 04: They could take it into a sane nurse. [00:34:03] Speaker 04: In fact, their instructions, in this version of the instructions you have in the record, that if you want to collect this evidence, for example, you want it to go into CODIS, take this evidence and take it into a police department. [00:34:14] Speaker 04: And so the misunderstandings about all of this is that [00:34:18] Speaker 04: and I think it's why it's so important as a First Amendment issue, is the first reaction is, gosh, this seems bad. [00:34:22] Speaker 04: We shouldn't allow it. [00:34:24] Speaker 04: And that reactivity to an unpopular idea [00:34:27] Speaker 04: is absolutely clear in the legislative history. [00:34:29] Speaker 03: Well, I don't know if it's unpopular counsel, but I guess what I've seen is there's been, you know, throughout history, so many different companies try to sell to vulnerable communities. [00:34:39] Speaker 03: I've seen that within the Latino community, where these notarios, for example, go and target this particular community, say that we're able to provide certain kinds of services, when in the end it's all baloney. [00:34:50] Speaker 03: So I understand why the state in this case came through and issued this particular... And I have no objection to that. [00:35:01] Speaker 04: So let's make the statute prohibit false and misleading claims about sexual assault kits. [00:35:06] Speaker 04: Let make it require warnings about what you can and cannot do. [00:35:09] Speaker 04: The whole FDA case law that they put in front of you is entirely inapplicable to what we have because all of the case law in Whitaker and Nickapur about the [00:35:17] Speaker 04: provision of a statement and the product has to do with a very unique scheme where, based on how you intend it to be sold, it goes into a regulatory pathway. [00:35:26] Speaker 04: Based on that regulatory pathway, there may be pre-market approval that's required for the statements you make about that product, because the FDA regulates the advertising around a subset of products. [00:35:36] Speaker 04: But the FDA does not say you can't make truthful claims if it's a certain sort of product, but you have to go through a regulatory scheme. [00:35:43] Speaker 04: They could have done that. [00:35:44] Speaker 04: They could say, if you were going to market your product as a solution in any way to sexual assault, you must first do preapproval and follow sort of an NDA, you know, an FDCA sort of provision, allow us to determine whether or not it's true, and if it is, we can allow sufficient warnings, have regulations like that. [00:36:03] Speaker 04: They skipped all of that and just gone to, we don't like it, and so we're going to prohibit it at the highest level. [00:36:08] Speaker 04: And the only thing they prohibit are truthful statements. [00:36:12] Speaker 04: Not about evidence. [00:36:13] Speaker 04: They don't say that. [00:36:13] Speaker 04: The evidence part is not untrue. [00:36:16] Speaker 00: That is what they're saying. [00:36:17] Speaker 04: Well, the evidence piece is in the definition. [00:36:20] Speaker 04: And there is clearly true that many sexual assault kits, and I think it's difficult to say that an iPhone is not a sexual assault kit under this definition. [00:36:29] Speaker 04: And it's difficult to say that photographs are not probably the most prevalent evidence in most criminal cases. [00:36:36] Speaker 04: And that it's just not true that you sold an iPhone for this purpose. [00:36:39] Speaker 04: Even if you did it at home, it would be impermissible. [00:36:41] Speaker 01: I think if no one has more questions, we have you over your time. [00:36:44] Speaker 01: Does anyone have other questions? [00:36:45] Speaker 01: Okay. [00:36:46] Speaker 01: Thank you very much. [00:36:47] Speaker 01: Thank you both sides for your patience and your arguments. [00:36:49] Speaker 01: This case is submitted and we are adjourned for the day.