[00:00:00] Speaker 01: Thank you, Your Honors. [00:00:01] Speaker 01: May it please the court, Mary Ann Dugan for the appellants, Mr. Yergler and Mr. Hollows in this matter. [00:00:10] Speaker 01: My name is Mary Ann Dugan. I would like to reserve five minutes for rebuttal. [00:00:14] Speaker 03: Very well. [00:00:17] Speaker 01: As you know, this case is... This appeal is almost entirely regarding standing. There is a side issue of leave to amend, which I think doesn't even come into play unless certain factors are addressed. But the lower court presented or applied a very... [00:00:45] Speaker 01: difficult or maybe even impossible standing test, which was not rooted in the relevant case law. [00:00:53] Speaker 01: At ER 52, the district court held that to demonstrate standing in this pre-enforcement facial challenge to a new, not new, but to the park rules in Eugene, the plaintiffs would have to set forth in detail what they intend to do, where they They intend to do it on city-controlled property. When it will occur and how. [00:01:17] Speaker 01: That is not the test for this type of constitutional challenge. As this court held in Arizona Right to Life, constitutional challenges based on the First Amendment present unique standing considerations, as we addressed in our opening brief at 19. And in that case, the court went on to say, citing another Ninth Circuit case, when the threatened enforcement effort implicates First Amendment rights, the inquiry tilts dramatically towards a finding of standing. [00:01:50] Speaker 01: And that's in part because as pre-enforcement challengers to bringing a facial challenge to the rule, the plaintiffs are also standing up for the rights of people who are not before the court, whose First Amendment speech may be chilled. These two happen to be people of more than ordinary firmness, so they may themselves not be chilled, but others may. [00:02:20] Speaker 03: So let me just jump in here because so we've got the two individuals and I want to focus on Mr. Yurgler. Sure. Because I think that's your best case. Sure. [00:02:26] Speaker 00: It's Mr. Yurgler. [00:02:28] Speaker 03: So when we look at his declaration and in the complaint, it has the same language. [00:02:34] Speaker 03: I'm looking at his declaration and it's ER 38 is what I'm looking at. So take a second. I see you've got things well marked there. [00:02:43] Speaker 03: So let me know when you're there. [00:02:47] Speaker 03: Yes. Okay. [00:02:49] Speaker 03: So paragraph three on page, on ER 38, he says, I am at risk of future enforcement action due to my expressive conduct. I intend to continue speaking out in public spaces against the city's policies. So this is where I have the concern in this case. It's literally what, we got to go on what the words are. [00:03:14] Speaker 03: is that my understanding is that Mr. Yurgler is contesting the laws that govern the parks. And I know the laws govern more than just the parks. I'll call it the park law. [00:03:25] Speaker 03: Here, he says, I intend to continue speaking out in public spaces. [00:03:31] Speaker 03: Public spaces is more than just parks. That could be a library. It could be a street corner. [00:03:37] Speaker 03: Where does he say that he will continue speaking out in a park? [00:03:45] Speaker 01: Well, Your Honor, as you know from the record, the enforcement against him was in a park. Sure. I will also point out that the definition of the parks that are governed by the park rules cover an enormous area. Let me find that in the record. [00:04:07] Speaker 03: I guess what I'm trying to say is that why didn't he just say, I will continue speaking out in parks? [00:04:13] Speaker 01: Well, parks are a subset of the public spaces in Eugene. [00:04:17] Speaker 03: Right, but see, therein lies the problem, because the problem I see, if I spoke out in Louisiana, and Louisiana had a very odd law, and then the next time I said, I'm going to speak in the United States, Louisiana is a subset of the United States, but that doesn't mean I'm going to speak out in Louisiana. And I'm just trying to see here that it seems to me this case is very different if this sentence said, speaking in public parks. [00:04:44] Speaker 01: But it doesn't say that. Well, so on page three of our opening brief, the first sentence in the facts explains that the city of Eugene owns and or controls 5,000 acres of parks, facilities, and open space. That is the public space in Eugene. And that's the area from which Mr. Yeargler and Mr. Hollows were excluded for 30 days from all property owned and governed or controlled by the city of Eugene. [00:05:16] Speaker 03: No, I agree. Everything you're saying here, I guess what I'm saying is that the public spaces in this city are more than just the parks, right? [00:05:24] Speaker 01: Correct. So the parks are a subset of that. [00:05:26] Speaker 03: Right, but that does not mean, you know, one is a smaller of the other. I guess I'm just trying to understand because you drafted this declaration, correct? [00:05:35] Speaker 01: I helped him draft it. [00:05:35] Speaker 03: Yeah, I mean, your name's on it. Big lawyers do that. That's what you're supposed to do. I'm just trying to figure out, why didn't it just say Parks? It seems to me this case is completely different if the word Parks was in there. I assume you would say, well, we can go back and amend that and add Parks. [00:05:50] Speaker 01: Well, that's an interesting issue that was not raised below, Your Honor. If that had been raised, I definitely would have asked for leave to amend. I think the confusion lies in the fact that when we drafted the complaint and then the declaration, our research indicated, as is laid out on page three, and there's a site to the City of Eugene's website, all public space in Eugene, other than the federal courthouse, is included in these park rules. [00:06:20] Speaker 03: Like a street corner would be? Well... That can't be right. A street corner is not a park. [00:06:27] Speaker 01: When Mr. Yergler was excluded, he was not told, you can use the sidewalks, you can use the streets, He was told to stay out of all city-controlled and owned property. And that is the area that is covered by the park's rule. And that is the public space. [00:06:44] Speaker 03: Right, but, I mean, I don't think the city's ever contended. And I'll ask them. They're going to get the business, too. Don't worry. But I'm trying to understand, has the city ever contended that this park law controlled... like a library or a town hall meeting or a sidewalk? [00:07:00] Speaker 01: Well, the exclusion order certainly does not distinguish between any of those spaces. In fact, below that was one of our arguments that these people are excluded from all public space, arguably the sidewalks. There was no factual rebuttal presented to that because it's not clear in the policies. [00:07:22] Speaker 03: So it's your contention then, just so I clear, this is important to me, your contention is that the line public spaces in the declaration and in the complaint necessarily covers everywhere in Eugene because the law would be applied everywhere in Eugene. Is that the, that's the step? [00:07:42] Speaker 01: Yes, I think that's certainly the logical conclusion from being told you are excluded from all public space after you speak out in a public space that happens to be a park. And then those areas are governed, 5,000 acres governed by these park rules. So to call it a park rule maybe is the confusing part, is that it's not just parks. It does say facilities, which clearly would include the libraries. City Hall. [00:08:13] Speaker 01: Open space. [00:08:14] Speaker 02: Can I ask about that? I understand that this discussion you've been having is the old rules, the rules that were applied to him. [00:08:22] Speaker 01: Yes, and the amendments did not change, for example, the definition of what area is covered. [00:08:29] Speaker 02: They don't? I thought they changed it to say they got rid of engaging in any activity or conduct that's disruptive or incompatible that interferes with enjoyment of a park, open space, or park facility, and replace that with using playground equipment, sports courts, picnic tables, and picnic shelters? [00:08:47] Speaker 01: Am I... There's two different rules that are at issue. [00:08:54] Speaker 01: I mean, there's three rules, but the third rule is the exclusion rule. So the... Sorry, just wanted to find the part about the change in the rules. [00:09:08] Speaker 01: So the rules that were changed, the exclusion rule was changed. That's not what you're asking about. Rule 1.010 was changed to address city events. And then... It was changed from... [00:09:33] Speaker 02: Like, I'm not sure that the word park is even in there now, right? It says city event or an event for which the city has issued a special event permit. [00:09:42] Speaker 01: But it's within the entire body of the rules which say at the beginning that they govern all space that's owned or controlled by the city. [00:09:53] Speaker 02: Right, but... [00:09:54] Speaker 02: And I don't know what this, and this was one of the struggles I'm having with this case, is I don't know what the city's interpretation is now, but because it uses, before it used park open space area or park facility, which sounds capacious, like that couldn't, it would fit your idea that it would include almost everything. Now it says playground equipment, sports courts, picnic tables, and picnic shelters. That sounds a lot more, narrow, so to read that list of things as including street corners seems a little harder than it would be under the old rule. [00:10:32] Speaker 02: And the reason I'm asking that, I guess I'm not, and we can ask the city what they think of that, how they're interpreting this, but one of the struggles I'm having is Judge Owens was asking you about what, he hasn't said he necessarily wants to do something in a park. [00:10:51] Speaker 02: but he has said he wants to do something in a, you know, more broadly than that, but we don't know if it's in a park. Normally, I think we would say, yeah, but he was arrested in the past, or, you know, he got cited in the past for in a park. I think it was in a park. And so that's some evidence that he will, you know, it makes sense. It's common sense that you would take that as evidence that that could happen again. The problem for me is that the rule has changed, and it's changed, I think, the language is not, It's not like it's clear to me that this language covers the same thing. [00:11:24] Speaker 02: So what I'm struggling with is it does seem to me to make sense that your clients should have the ability to explain why they would violate these new rules. And it seems to me that the fact that they violated the old rule is not necessarily indicative that they would violate the new rule. So I'm just... [00:11:46] Speaker 02: Why wouldn't we, and I don't know what the path to get there, I don't know if we find the old rule issue moot, or if we find that they don't have standing to do the old rule, but the problem to me seems that you should have a chance to amend, but would that satisfy you to be able to go back and have a chance to amend and have a new um, declaration. [00:12:08] Speaker 01: Well, first of all, I just, I'm a, I respectfully, uh, on page five of the opening brief, it sets out the old rule, uh, one of the old rules, subsection, well, both of them, but subsection 16, uh, did say at the time, including but not limited to using playground equipment, picnic tables, or picnic shelters for reasons other than their intended use. That is not the language that changed. The language that changed was they took out some of the interfering with reasonable use and enjoyment, but they left... [00:12:44] Speaker 01: the disruptive or incompatible. So the reason I'm hesitating is I don't recall this ever being briefed as the change you're talking about is not familiar to me. [00:12:57] Speaker 02: You're saying nobody thinks that the changes I'm talking about make a difference in the case. [00:13:08] Speaker 01: I don't think what you're saying changed is correct. [00:13:12] Speaker 02: Okay, so you don't think they changed... [00:13:15] Speaker 00: Council, I read a provision of the rule as amended that says engaging in any activity or conduct which disturbs a city event or an event for which the city has issued a special event permit. And I do not see any geographical limitation to that. [00:13:36] Speaker 01: That is subsection 17, I believe, not 16. Okay. [00:13:42] Speaker 00: But that is also one of the challenged... Rules as amended. Yes. [00:13:46] Speaker 01: So because Mr. Yergler was first charged with a violation of subsection 16, and then they later changed it to 17, there's a lot of confusion in these rules. They're very vague. They're overbroad. We would like to get to the merits of that. But in the meantime... [00:14:04] Speaker 01: I don't think that the changes in the rules are what Judge Van Dyke said. [00:14:13] Speaker 01: Maybe I'm misremembering, but I'm trying to find the actual change, but I don't think it's that. [00:14:20] Speaker 03: It seems to me that if you were to amend, and with an amended declaration... [00:14:28] Speaker 03: You could very clearly indicate, and maybe not as to when this is going to happen, but he intends to protest at park events, and he intends to protest whatever the ambiguity that currently exists. It seems to me with an amended complaint and an amended declaration, all of these questions go away. [00:14:48] Speaker 01: That's correct, Jerry. [00:14:49] Speaker 03: For you, this is a much simpler case. [00:14:53] Speaker 03: Don't worry, I'm going to give you more time. Don't worry about the clock. But it seems to me, are we wrong about that? [00:14:58] Speaker 01: Well, I agree with you. I also, this was not raised below, and therefore it's not what the district court based its decision on. [00:15:10] Speaker 03: Right, but unfortunately when it comes to Article III standing, we've got to hash this out now. That's the problem. [00:15:15] Speaker 01: Well, correct, but the factual record was not... what I'm being questioned on. And that's why it's a little bit difficult. [00:15:24] Speaker 03: But I think that's all the more reason why you'd want to amend. [00:15:27] Speaker 01: We do. [00:15:29] Speaker 02: You know, we keep kind of... To add to that, what I'm struggling with is two things. What Judge Owens asked about is, Have you even, has your client actually said he wants to do this again? And what you have in response to that, I think your strongest thing is, yeah, but he got arrested one time, or I don't know if he was arrested, but he got in trouble one time. But the problem is he got in trouble under an old rule, so I'm not sure how, I don't even know if we have cases that talk about if the rules change, and I'm not even clear how the rules change, and I certainly am not clear how you think any changes to the rule affect, you know, have changed or affect. [00:16:04] Speaker 02: So part of me just thinks Boy, that could all be made, those two things could be made a lot more clear in this case because right now I feel like I'm shooting in the dark on a lot of questions in this case. And some of those questions go to standing. [00:16:17] Speaker 01: That's understandable. We do address the changes in the rules at 28 to 30 of our opening brief and in the reply at 8 to 10. [00:16:27] Speaker 01: The main changes were purported to limit the length of time that somebody could be excluded, but it then gave this huge loophole to give discretion to the officer. to extend that time. It also limited the scope of the restriction of use to a specific park or open space or facility where the conduct occurred, unless the officer believes that a broader application is required. [00:16:58] Speaker 01: And then the disturbing a city event, number 17, was amended. [00:17:06] Speaker 02: Let me just make real, so right now, I don't know exactly what it is your client wants. Like, precisely which client. Like, your client wants to go to a certain type of event and wants to stand there and fire off confetti. I don't know what exactly he wants to do. It's very general what you said that he wants to do. The only thing that's helpful is what he has done once in the past, right? In theory, that would go well. Presumably, he'll do something like what he did in the past. [00:17:36] Speaker 02: But I also... I don't know if the city, and maybe the city could tell us, I don't know if the city's view is that what he did in the past would be disallowed by the current rules. So it just feels to me like it would help a lot more in evaluating your First Amendment claims if I knew what your client wanted to do, had a more specific declaration, and if I knew, if the argument was actually joined as to, you know, if the city says, yeah, your client says he wants to do X, and over our dead body is going to do X, then we could say, okay, does that violate the First Amendment? [00:18:10] Speaker 02: And that would be helpful. But right now, everything still feels kind of vague, both in what precisely your client wants to do and whether or not the city even thinks that would violate their rules. [00:18:21] Speaker 01: I think some of that goes to the vagueness problem because Mr. Yergler and Mr. Hollows went out. [00:18:28] Speaker 02: Vagueness that helps you and there's vagueness that does not help you. And vagueness as to what your client wants to do does not help you, I don't think. [00:18:35] Speaker 01: I think in a facial challenge to a law, it does. Because how are you supposed to show that you are going to do something that will then attract the enforcement of a law when the law is so vague you don't know what the behavior is? [00:18:49] Speaker 03: I think to jump in, we agree that if the law is vague, that helps you. If it's vague as to what your client's going to do, that doesn't help you. [00:18:57] Speaker 01: Well, maybe I'm not saying this, articulating this well. So... [00:19:05] Speaker 01: It's almost impossible with a vague law to say what things you will do that will get you in trouble. [00:19:12] Speaker 03: But he could have said, I'm going to do the same thing I did last time. [00:19:17] Speaker 00: Right? I'll give you an example. [00:19:20] Speaker 00: In our case, Porter, which involved a challenge to a state law that prohibited honking, which was applied to expressive honking in response to a protest. The plaintiff said, you know, was cited for violating that law when she honked in response to protests. And there's a declaration saying, I would do the same thing again. If I passed a similar protest, I would honk or I would not honk out of fear for this law. [00:19:52] Speaker 00: There's some, even though she can't specify exactly when she's going to run and drive past another protest, Nobody's asking for her to predict the future, but she's saying if this, then that, with some to the specificity required. In this case, I think what would be helpful is to have more specific descriptions of what your clients did in the past and what they would do under similar circumstances in the future, right? [00:20:24] Speaker 00: in a park if there was a city event. Or we understand this to apply to all City of Eugene open spaces, which is defined as blah, blah, blah. And if the city did A or B or C, I would want to do X, Y, or Z. But I'm afraid I would be cited again or excluded from all city park spaces like I was the last time. And the changes to the rule don't help me understand that that would not violate the city law. but we have a very bare-bones declaration, which is vague. [00:21:01] Speaker 00: Right? We're not asking you to predict what the police would do, but to predict what your clients need to... [00:21:11] Speaker 00: predict what they would do and when. [00:21:14] Speaker 01: Well, okay, so honking is an extremely specific thing, and you can obviously specifically say, I'm going to continue honking. [00:21:26] Speaker 01: The things these two people were arrested for were speech. Mm-hmm. [00:21:32] Speaker 01: It was above a certain decibel. No, there's no limit, decibel limit. It's just somebody says you, your speech just disturbed. [00:21:40] Speaker 02: But have you, I mean, you haven't really even said I plan to do the same thing again. The one dude's moved away, you know, like is he going to like come over and just say in a declaration, I plan to come over, rent a car with a really loud horn and do some honking, you know, or something. But like the problem is I would like to ask him really hard questions about, I'd like to ask him really hard questions about, they say they want to do X, right? will that violate your vague statute? And then when he says no, I want to follow up and say, well, it's super vague. It could be. But you haven't given me the ammunition to ask him those hard questions because I have to make up what I think your clients want to do. [00:22:18] Speaker 02: That's our concern. [00:22:18] Speaker 01: Fair enough. I will say that had this type of debate occurred in the lower court, we would not be here with these kind of questions because we would have clearly asked to amend to make that clear. [00:22:35] Speaker 01: That argument was waived. It was not raised below. [00:22:39] Speaker 00: Can you proffer that if given leave to amend, you would be able, your clients would be able to attest with more specificity what they would like to do in the future if there's another city Permanent or sponsored event or what whatever it is the range full range? I mean, I don't know that says your declaration says we believe in a lot of progressive causes there activists for that and How's right? [00:23:10] Speaker 00: I mean can they say if there were another event if the city official was speaking if this if that you know Can they give an array of examples of things they would like to do in the future? But fear are prohibited. I mean just in run through an array of examples even, can you proffer that your clients can do that? Oh, certainly. [00:23:34] Speaker 01: I mean, he's in the media quite a bit. [00:23:38] Speaker 03: All right, so let's do this then. I'm going to, because we're way over, because you've had a lot of questions. You didn't do anything wrong. We're going to give you five minutes for rebuttal, like you asked. Now let's hear from the other side. [00:23:48] Speaker 01: Okay, thank you, Your Honor. [00:24:00] Speaker 04: Thank you, Your Honors. Counsel, it may please the court. Ben Miller for the City of Eugene. [00:24:06] Speaker 04: We think the district court did correctly determine that neither plaintiff had standing in this case to bring the facial challenge to a now different version of the city's park and open space rules. And that's because neither plaintiff articulated in their depositions or their declarations an intention to engage in a course of conduct arguably prescribed by the park and open space rules and for which a credible threat of prosecution existed. And it's a really important point I want to emphasize in this case is that this is not here on a motion to dismiss or a preliminary injunction. [00:24:37] Speaker 04: This is a case that went through all the stages of discovery. I deposed the plaintiffs. I deposed them about their intentions. I took discovery from them. We asked them interrogatories that are in the supplement excerpt of records about what other warnings or dangers that they had? [00:24:53] Speaker 00: So, counsel, we have a line in cases that says when the plaintiff has violated the challenge law in the past, particularly in the First Amendment context, we don't ask them to allege with specificity exactly how they're going to violate the law in the future because the fact that they violated in the past mitigates the concerns about the hypothetical nature of a pre-enforcement challenge. How does this case differ from that line of cases. [00:25:22] Speaker 04: This case differs in two specific ways. First, because the rules have changed to focus on material different conduct. And second, because the declaration that they have talks about speaking out in general, it's in public space. [00:25:34] Speaker 00: Has the city ever stated for the record, disavowed that the new law would, that the plaintiff's past conduct, have you ever stated for the record that the plaintiff's past conduct would not violate the new law? [00:25:49] Speaker 04: Well, what we have stated, and it's in, it's not part of your SCRs, it's part of the docket below, I believe it's in document 27, which is our response to their motion for summary judgment. If you look at there where we're talking about kind of the merits of that, we go through in great detail and talk about the areas where these laws actually apply, and we talk about this issue about what type of conduct would fall within it. And that's because in Oregon, we We do things a little differently. We look at this under an Oregon Constitution Article 1, Section 8 lens, which really limits, even more so than the First Amendment, the ability of a city or any sort of... But that Constitution existed, and the First Amendment exception existed in the prior version of the rules, correct? [00:26:33] Speaker 04: Correct, yeah. [00:26:34] Speaker 00: And yet... [00:26:36] Speaker 00: There's no dispute that the plaintiffs were arrested, cited, excluded, and the criminal charges filed and dropped without explanation. Has there ever been an official disavowal that says this rule did not apply to the plaintiff's conduct? [00:26:54] Speaker 04: This rule cannot apply to the content of the plaintiff's conduct. And there are a line of Oregon cases that we cite to, State v. Rich, State v. Puckett. [00:27:02] Speaker 00: If the plaintiff's engaged in the exact same conduct as they did in the past, would the new rule as amended apply to them or not? [00:27:10] Speaker 04: If the non-communicative aspects of it, the volume of their speech, not the content and not other people's reaction to that speech... [00:27:19] Speaker 04: if the volume of it was such that it disturbed it, Oregon law, Oregon constitutional law, does allow there to be an enforcement action. [00:27:26] Speaker 00: So if they engaged in the same exact conduct as they did in the past, it would still be a violation of the rules as amended? [00:27:34] Speaker 04: Would it? It's a yes or no question. [00:27:41] Speaker 04: I'm trying to, because there's two different actors and they did different things. [00:27:45] Speaker 00: Plaintiff Urgler, if he engaged in the same exact conduct for which he was cited, arrested, and criminally charged, if he engaged in that same exact conduct today, would the new rules, would he be able, could the city cite him and exclude him under the rules as amended. [00:28:07] Speaker 04: For the volume of his speech only? [00:28:08] Speaker 00: For the same exact conduct. I understand you would contend it's not a violation of the First Amendment because of the manner in which he gauged. We're putting aside the merits of the First Amendment claim in the city's defense. But the city's position would be if he engaged in the exact same conduct as he did in the past, they could enforce these rules against him and cite him and exclude him. Is that correct? [00:28:37] Speaker 04: Yes, for the volume. [00:28:39] UNKNOWN: Okay. [00:28:41] Speaker 03: If I could ask the council, there is a definition. It's at SCR 10. It's 1.000 park and open space areas covered. I just want to clarify some things. [00:28:53] Speaker 03: My understanding is that a street corner, as long as it's not a street corner of a park, is not covered by any of the things we're talking about. Is that correct? That's correct. A library is not covered by any of this. That's correct. A town hall meeting is not covered, correct? That's correct. A facility is only a facility that's, it says here in the rule, located thereon. Right. So if there were a park bench or a ranger tent or something like that, then that would be a facility, I guess, in a park. Correct. Or maybe if there were tennis courts in a park. Correct. [00:29:24] Speaker 03: Or pickleball courts, yes. Pickleball, well, not a fan of pickleball. Because that makes a lot of noise. That's a whole other case about whether that should be allowed. I have a couple of those. Yeah, I'm sure you do. [00:29:36] Speaker 03: But the street corner and the kind of traditional, the guy in the soapbox yelling about politicians is not covered by any of this. [00:29:43] Speaker 04: Park rules have no application there. Okay, thank you. That's correct. [00:29:49] Speaker 04: So... [00:29:51] Speaker 04: I can get back to what I think the district court did, which was to apply the tests that apply here in a pre-enforcement case. And I guess I'll, not to get on another tangent, but this is sort of a weird position to be in for a pre-enforcement challenge because you have two provisions that they're challenging, 1, 0, 10, 16, and 17, that are sort of prohibitions. But then they're trying to bring a pre-enforcement challenge to procedures in 1.005 for issuing a notice of restriction against and then at 1.074 for sort of the appeal process. [00:30:24] Speaker 04: And I just don't understand how you apply a pre-enforcement First Amendment analysis to those type of procedures because on their face they don't implicate anything. I mean, they could be utilized for somebody who has a dog off leash or for any other park rule violation. So I just want to point out that When we're looking at this pre-enforcement test under Dreyhaus and Thomas, it really, I think, needs to focus on the 1.10, 16, and 17 park rule issues. [00:30:54] Speaker 00: But there's no dispute, right, that the city, in fact, issued an exclusion order? right, in response to the plaintiff's comments? No, there's not. [00:31:03] Speaker 04: But it's a facial challenge to the procedures, I guess, is what I'm saying, as opposed to saying I'm going to violate something and I want to know ahead of time. And that's where I think your case law usually has a lot more substance than what these declarations have. You have things like an opinion letter. You have a litigation hold. You have a notice that there's an investigation. You have other issues that show there's a credible threat of enforcement. [00:31:29] Speaker 00: Well, in those cases, there has been no past enforcement. [00:31:38] Speaker 00: This case, there's no dispute, right, that the plaintiffs were arrested, cited, excluded and criminally charged. Is that correct? [00:31:50] Speaker 04: That is correct. [00:31:52] Speaker 00: And was there ever any explanation? I mean, did the city say we're dropping the criminal charges because actually we made a determination that their conduct falls within the First Amendment exception or that they didn't actually violate the rules? [00:32:07] Speaker 04: There's nothing in your SCRs about that. [00:32:09] Speaker 00: So why isn't there, I mean, under our case law, when there has been past enforcement, there is a credible threat of future enforcement when it's not been, even if it's been dropped, if it's not been dropped because of a clear determination on the merits. [00:32:26] Speaker 04: Well, as to Mr. Hollows, I mean, that's, I think, a different scenario. [00:32:32] Speaker 00: They only need one. So let's focus on Mr. Yerkler. [00:32:34] Speaker 04: Okay. So that is one element of part of the Thomas test, which is the history of past prosecution or enforcement, but that's only one element of it. [00:32:44] Speaker 04: The first one is a concrete plan to violate the law, and that's what we don't have from these declarations, where the enforcement authorities have communicated a specific warning or threat to initiate proceedings. [00:32:56] Speaker 00: We have a series of cases, including Tingley, Porter, other cases where we have said when there has been a past violation, they don't need to allege with specificity a concrete plan. The concrete plan requirement really comes up in the case where there's a brand new law and there's no history of past enforcement. And we really need to understand how exactly is there going to be an arguable violation in the future. [00:33:27] Speaker 00: But we have a record here. [00:33:29] Speaker 04: Well, I think that you do have some cases, I think it's Seattle Pacific and maybe even Pace Ranch, that are looking at sort of new laws. And even there, the plaintiffs are providing some level of specificity. And this is where this case, I think, is so unique because the declarations and all the information I got out of them from the depositions, including that Mr. Yergler is not refraining from using parks because he fears for that something's going to happen. [00:34:00] Speaker 04: That's in his deposition. [00:34:03] Speaker 04: That the areas that they're saying are covered, or where they're wanting to do activities, are areas where we're saying you're free to do that. You're free to speak out against the city, at city council meetings, on sidewalks, all the rest of it. You're even free to do that in an event. You just can't, the volume of what you're doing can't disrupt the event as it's interpreted by Oregon constitutional law, including State v. Rich, which talks about that non-communicative element of it. [00:34:33] Speaker 04: But we are not saying, we're absolutely not saying that we're regulating speech, we're trying to regulate the content of speech, and these laws don't get at that. They also don't get at sort of the scope of the different areas in which either plaintiff could operate. [00:35:05] Speaker 04: As I indicated, the other piece of the PARCC rule that I think that we haven't focused on yet, but we really need to, this is from the 2021 version of it, is 1.005 , which is basically the savings clause that says, the city is interpreting this, that nothing shall be construed to authorize the exclusion of any person lawfully exercising free speech rights or other rights protected by the state or federal constitutions. [00:35:32] Speaker 04: And so we have that overlay with the park rules. [00:35:35] Speaker 00: I mean, there's a merits challenge, right, where you could argue this is a reasonable time, place, manner exception that you're seeing the plaintiffs would say, but we don't have enough notice, right? I mean, I don't know, is there a decibel specification? There might be all sorts of arguments that both sides can make on the merits of whether this law is sufficiently clear, whether it's a reasonable time, place, manner restriction, which I think is what you're you would be arguing, right? That's what I understand. But over here, we're talking about standing, which is not supposed to be a litigation on the merits, right? [00:36:05] Speaker 00: It's just a question of whether there's an arguable First Amendment interest that's arguably prescribed. And in a pre-enforcement challenge, right, there just has to be a credible threat. And when there's been absolutely no history of violation or enforcement, we've said merely... [00:36:25] Speaker 00: if the statute could be interpreted as prescribing the intended conduct and there is no disavowal, right, that's enough. [00:36:35] Speaker 00: Has there been a disavowal of enforcement of these actions against the conduct for which it has been enforced in the past? [00:36:43] Speaker 04: Yes, for speech, yes. [00:36:45] Speaker 00: But if they, I mean, I understand you're saying it's only because of the volume, but if they engaged in the same exact conduct in the past, I understand your position to be Because of the volume, we would apply the amended rules against them. [00:37:01] Speaker 00: And then you can have an argument on the merits about whether that's permissible under the First Amendment. But for standing purposes, your view is, yes, it would still apply, correct? Correct. [00:37:16] Speaker 04: Yes, but not for content. And the reason, believe me, I don't want to get into the merits argument, but the reason it matters is because of the second prong of the dry house test, which says, okay, we look at the code provision and is the intended future conduct, which we're trying to measure and we kind of can't measure because we don't know what they're saying they're going to do. But is that arguably prescribed by the challenge statute? And so what I'm saying is the challenge statute has a carve out that says we're not going to use this or apply this in any way for the content of speech. [00:37:48] Speaker 00: But that carve-out existed under the prior rules that were enforced against the plaintiffs, correct? [00:37:53] Speaker 04: Yes, and that's because on the merits, we contend that we didn't do it for that. [00:37:57] Speaker 00: On the merits, you're saying that was perfectly fine. [00:38:00] Speaker 04: But I am saying that on its face... on the face of the rules, 1.005.3e, under the 2021 rule, says you can't do this. You can't apply this in a way that is targeted towards content. And that's based upon all the other case law that we've sort of cited too. So that's where I think it does come in here because you're still trying to compare the actions they're saying they're intending to take in the declaration or refraining from taking, of which we don't really have any, to the rule that has a limitation on its application and has a geographic limitation and then say, okay, is it arguably prescribed? [00:38:41] Speaker 04: And then, is the threat of future enforcement substantial? Looking at sort of those Thomas factors. And yes, under a different version of the rules and a different scenario, there had been arrests, but the rules have been amended. We have sort of a different scenario here. [00:39:02] Speaker 00: There's nothing that prevents... But I understand you to be saying if the same conduct occurred, the changes in the rules would not [00:39:11] Speaker 04: make take that conduct outside of the prohibition it would it would permit enforcement action for non-communicated to communicative elements of speech if it rose to the level your that's your argument about the prior rules correct yes okay yeah um [00:39:32] Speaker 03: If you want to wrap up real quick. [00:39:33] Speaker 04: Okay, yeah. So just on mootness, we think that the case is moot as of the 2021 rules. [00:39:39] Speaker 04: And, you know, really the best remedy here is to determine, as the district court did, that they didn't have standing. [00:39:46] Speaker 04: That now, and that the case has become moot as of the 2021 rules. Plaintiffs are entirely free to... file in a new case rather than amending. Because we did. We went through discovery. We did all this. Mr. Hollows clearly is, I think, not going to be somebody that's going to have standing going forward. But there's nothing that would prohibit a person with standing from bringing a challenge to the existing 2024 rules and doing it that way. And we think that would be better. So we would ask you to affirm the district court. [00:40:18] Speaker 03: Thank you very much, counsel. Appreciate it. [00:40:27] Speaker 01: Thank you, Your Honors. [00:40:30] Speaker 01: The Respondent Council asserted that the rule cannot apply to content. The rule cannot, under the Oregon Constitution, be applied to content. And, of course, also not constitutional to apply it to content under the First Amendment. But that, it's a circular argument because our point is, when we get to the merits, that this is so vague and overbroad that it allows discretion of the officer to say, oh, you just, your voice just rose to the level of disruption when, you know, here's a city councillor speaking, sorry, city manager speaking through a microphone to an applauding crowd saying, somebody who's not happy with that raises their voice and is immediately physically extracted from that event and then banned from all public space, all park space, that is entirely up to the discretion of the officer and remains so under the amended rules. [00:41:36] Speaker 01: Regarding the past enforcement, the O'Shea Supreme Court also noted that that is evidence... [00:41:44] Speaker 01: to support standing, and here we have not only Mr. Yurgler himself, but Mr. Hollows, and it is true we only need one for standing, but we now have a pattern of the officers using their discretion to apply the rule to exclude people whose speech they are not happy with. [00:42:04] Speaker 03: All right, so I'm going to jump in here because you've gotten some hints from all three of us that there may be some light at the end of the tunnel for you in this case, If you can go back and amend with maybe a new declaration or new complaint, you've just heard opposing counsel say that this does not apply to street corners. It does not apply to city hall. It applies to what is defined in that 1.000. [00:42:32] Speaker 03: So with your understanding of 1.000, can you, I'm going to follow up on Judge Song's question. Can you proffer that you could have an amended complaint that is sworn and that satisfies Rule 11 that your client would intend to engage in conduct that would fall within the definition of parks or whatever we're going to call these things under 1.000? [00:42:58] Speaker 03: Can you do that? [00:42:59] Speaker 01: Absolutely, yes. [00:43:00] Speaker 03: Okay. So it seems to me that that is possible. probably the best case scenario for you from my perspective, because like Judge Van Dyke said, when I read what's been filed, I still don't really know what your client's going to do. I agree with Judge Sung that you don't have to give us the playbook on exactly what he's going to do, but I have to know if he's playing football, if he's playing basketball or baseball. I have to have some concept of what playing field we're on, and you think you can provide more detail on that. [00:43:28] Speaker 01: Yes, Your Honor. [00:43:29] Speaker 02: Can I ask one follow-up to that, which is at the very end, I think your counsel on the other side said, yeah, but they don't need to amend the complaint because they can just bring, you know, if we were to affirm, they can just bring in a lawsuit. I think the reason you would probably prefer to amend is that if you eventually could win, maybe you could get attorney's fees all the way forward. I'm just wondering, I'm trying to think of why, well, maybe just tell me why is it better to allow you to amend than to just say you lose because we don't think you've got enough facts here, but we're not saying that you couldn't have enough facts. [00:44:08] Speaker 02: We just don't think you have them in this case. What is the difference between amending and just bringing in a lawsuit? [00:44:15] Speaker 01: Well, it's not the attorney fees. Um, we, we are a nonprofit organization and that is not how we make our money. Um, but, um, you know, I think that to re to require, would you, would you get attorneys? [00:44:30] Speaker 02: Maybe this is, would you get attorney fees if you, for the first part, yeah, I, I, I did lots of pro bono for nonprofit organizations before I, you know, for this job and, And they always wanted their attorney's fees when they won. [00:44:44] Speaker 01: We definitely will if we win, yes. [00:44:47] Speaker 02: But it seems like I'm not sure you would actually get your attorney's fees up to this point if you were allowed to amend because the idea would be... It does seem a little unfair that you would get attorney's fees for the part where you weren't winning and then when you amend it... Because that's kind of partly on you if you have to amend to have facts. I'm trying to figure out... Maybe just tell us, like, why would we... What's better, right? Yeah, yeah, yeah. [00:45:15] Speaker 03: Amending or filing a new lawsuit? From your perspective. [00:45:18] Speaker 01: Okay. Well, you know, I wouldn't have appealed if I thought that there wasn't a good reason to do so. And the reason is... [00:45:30] Speaker 01: Because of the importance of spontaneous protest, for example, which is set out by the Supreme Court in Shuttlesworth, to require people to articulate how they're going to, what steps they are going to. [00:45:47] Speaker 02: I think you're about ready to tell us that. No, you don't. You should not. [00:45:50] Speaker 03: We're not going to redo the case. [00:45:52] Speaker 02: But if we think you need to, if we think you need more specific allegations, let's assume that for a second, that we think you need to do that. The specific question I've got is why is it better for you to amend as opposed to just giving the court those more specific allegations in a subsequent fresh lawsuit? [00:46:16] Speaker 01: I don't like to admit I'm wrong. No, I'm joking. [00:46:23] Speaker 01: What I was trying to say, and I have... [00:46:26] Speaker 03: You're over time, so let's get to it. [00:46:29] Speaker 01: Yeah, I was trying to. So what I'm trying to say is that the more hurdles that are placed in front of people who want to challenge an unconstitutional vague law, the less likely people are going to do that. And the hurdle that the lower court placed is unreasonable, and it does not meet the standards that were set by the previous courts. [00:46:56] Speaker 01: If, in the alternative, this court disagrees, which it sounds like you may, we gladly take the opportunity to amend, which we were not allowed to do in the first instance. [00:47:05] Speaker 03: You would prefer that over the chance to file a new lawsuit? [00:47:09] Speaker 01: I would prefer that to having a loss in the Ninth Circuit that might harm other people. [00:47:13] Speaker 03: Again, the question is that there are two roads here. You can either redo this case... or do a new case. He is suggesting they should just do a new case. Is he right about that or is he wrong about that? [00:47:26] Speaker 01: We could do both. [00:47:27] Speaker 03: Okay, so right now you're not prepared to say which one you prefer? [00:47:33] Speaker 01: Starting a new case seems not to be in the interest of judicial efficiency. [00:47:37] Speaker 03: It would mean... So you'd rather amend? [00:47:39] Speaker 01: Yeah, I don't think we need new depositions, for example. [00:47:42] Speaker 03: Gotcha, okay. Anything further from my colleagues? [00:47:46] Speaker 03: All right, thank you very much. [00:47:47] Speaker 01: Thank you. [00:47:47] Speaker 03: This is a very interesting case. Yes. This matter is submitted, and again, thanks to everyone in Portland. It's been a great week. Take care. Thank you, Your Honor. [00:47:55] Speaker 01: I'll rise.