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Case number 16-5047.

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Answer coalition.

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Act now to stop war and end racism.

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Appellant, Braylon Scott Hagler.

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Pastor, Plymouth.

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Congregational church at L versus W. Ralph Basham.

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And official capacity as director, U.S.

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Secret Service.

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And Sally Jules, secretary, United States Department of the Interior.

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Ms.

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Verheyden-Hillard for the appellant.

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Ms.

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Broswell for the appellees.

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Basham at L.

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Good morning, Your Honors.

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May it please the Court, Mara Verheyden-Hilliard of the Partnership for Civil Justice Fund on behalf of the Appellant Answer Coalition.

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This case is about the First Amendment rights of the people to engage in assembly, debate, petitioning of their government on quintessential public fora alongside the parade route on Inauguration Day, and whether the government may engage in identity-based viewpoint discrimination in the allocation of this public space.

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The government's presentation is that a certain amount of viewpoint discrimination is tolerable and that the government may be relied upon to be prudent in its flexibility.

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The Constitution has never tolerated this.

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Once the door is open for the government to engage in some viewpoint discrimination to marginalize dissent, that door cannot be shut.

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There is a reason why there is a bright line rule under the Constitution.

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And today's marginalization can only grow larger and larger.

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This is simply not an authority that the government possesses.

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The Constitution requires that there be a firm check on executive authority in the abridgment of First Amendment rights.

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Can I ask you just a basic factual question about your submission?

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Yes.

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What is it that you'd like to do?

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You'd like to, and let's focus on the Freedom Plaza area, since that seems to be much of the focal point of the contentions for now.

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Is it that you would like to have the areas that are designated bleacher areas be used for something else, some kind of organized demonstration there, or is it that you want access, you're okay with it being a bleacher area, but you want access to the seats?

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What the appellant is requesting in this case is that the administration of the public forum, up and down the parade route, alongside, not the parade route itself, but the sidewalks of the parkland, that that space be available to dissenters, to the general public, to supporters, without any content-based, viewpoint-based discrimination as to who gets access to that space.

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So it's a challenge.

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But to be used for what?

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In other words,

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If we take as a given that there's going to be bleachers because people watch the parade, is it your client's wish that those areas be used for demonstrations rather than bleachers, or is it that you want access to the bleachers so that you can sit there and watch, but also hold signs that protest the policies that you find objectionable?

[00:03:10] Speaker 02:
Your Honor, there are two pieces to that question, so I feel I need to answer each of them in order to accurately answer the question.

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So the set aside of the space, what is designated as PIC bleacher areas in the regulations that are being challenged, that is the area that's being challenged.

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And what is requested is that there be an opportunity for equal access to that space.

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What has happened is that the PIC is not acting in an administrative function.

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It's not that it sets up bleachers

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that the government or the NPS sets up bleachers and somehow this is being done through the PIC and that those are available to the public.

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These are set aside as exclusive use viewpoint exclusion zones for the PIC so that when the PIC sets up bleachers, and in the record we have demonstrated,

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Those bleacher tickets are not automatically available to the public.

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They are restricted based on viewpoint vetting to supporters and funders of an incoming administration.

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Now, the administration can make a decision that it wishes to allow some tickets to be open to the public.

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That has happened sometimes, but at other points, and in all cases, large numbers of those tickets, if not all tickets, has been set aside.

[00:04:19] Speaker 01:
Okay, so then it sounds like, from that answer, that what you want is equal access to the bleacher tickets.

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not access to the space to do something other than use the space as bleachers.

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Because you can imagine a situation in which what you'd like to do is organize protest of a type that's incompatible with use as bleachers.

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And that too, Your Honor, because Freedom Plaza, to focus on that space, is a unique demonstration and assembly site.

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It is recognized by the NPS, and that again is in the record, that that space above all spaces is uniquely configured for demonstration and assembly.

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So in fact,

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they do seek to be able to access that space in order to engage and petition the government in free speech activities and not necessarily have that space set aside for bleachers in a way that restricts... So as to that, let's just focus on that part because it sounds like you have two submissions then.

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As to that, what's content-based about saying that this space should be used for bleachers rather than for something other than bleachers?

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Because what we'd like to do is set up an area from which people can watch the festivities.

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Well, what's happened here is that that would be a different case if that was before us.

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If the Park Service had set aside space on a viewpoint-neutral basis, on a content-neutral basis, and it was the Park Service itself setting aside space, putting up bleachers, and making those completely available on a first-come, first-serve basis to the public, we would be in a different posture.

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No, no, no, I'm not talking about who has access to the bleachers.

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I'm just talking about the fact that the space is used as bleachers, period.

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So we don't get, because it sounds like you have two submissions.

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One is we'd like to use the space for something other than bleachers.

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In other words, we don't want our people to sit there and watch.

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What we want to have the opportunity to do is to actually have an organized protest that's to the exclusion of the spaces of bleachers.

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And the Freedom Plaza is an especially hospitable environment in which to do that because of the physical characteristics.

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And that makes sense.

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I understand why you might want to do that.

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In terms of the use of the place, if you want to use it for something other than bleachers, then we're not talking about the criteria under which the bleachers themselves are allocated, the seats are allocated.

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We're talking about the reason that the space is allocated for use as bleachers.

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And as to that, what's content-based about that?

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Well, we are talking about both things, and because what the request is is that the pick bleachers set aside in the regulations be struck, and that the park service be required to provide either equal access or fair administration of that public space, which they are not doing right now.

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Now, if the situation were... Let me just clarify.

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I thought your application is you wanted to put up bleachers, too, in your area.

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Is that correct?

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The application is that bleachers may be an option in that area, but not necessarily, that they may be able to – that they would want to be able to use it for a collective assembly, for a collective action to be able to speak out.

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Well, what does ANSR want to use Freedom Plaza for?

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Does it want to put up bleachers?

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Because you've put up bleachers before.

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Is that what you want to do, or is it that you want this to be no-bleacher area for your – for protest?

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Well, for – One or the other?

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What happens is what, in terms of the permitting process with the park service, is that an entity puts in a requesting permit.

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They put in the things that they'd like to see and do.

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They sit down and work with the park service as to what is accessible and what is allowable.

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The dominant thing that ANSR wants to be able to do is to be able to rally and assemble in that location.

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In 2009, they shared the space with the PIC.

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And in 2009, they were able to set up bleachers in that space with the PIC.

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On other occasions, they have had – they've sought to rally.

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So – I mean, without bleachers.

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So the goal here – You put up bleachers in John Marshall Park, too, when you were there, correct?

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Or am I incorrect?

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You put up bleachers in John Marshall Park when you were there, correct?

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In John Marshall Park, there was a tiny little subset of a tiny row of front bleachers.

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But the goal was to have the assembly to have people to try and maximize that space.

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So there was an assembly of people.

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The problem with John Marshall Park, of course, is it's completely different than Freedom Plaza.

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It is, as the Park Service recognizes, a passive recreation area.

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And then it's full of obstructions.

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For the 20 seconds, I got the attraction of Freedom Plaza.

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For 2017 inauguration, you mentioned that you have put in an application.

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Was your application first in time?

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That application is in dispute.

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They were first in time.

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They stood there before the doors opened.

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There was no one else standing there, and they got their application stamped at 8 a.m.

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at the first possible second that it could be done.

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When we sought to determine if there are any other applications, we've gotten back a second application that is written by the Park Service.

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It's stamped at the exact same time, but yet that

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There was no one there.

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There was no one at the machine.

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There was no one stamping.

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So we believe that, yes, the Answer Coalition is the first time application.

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And they also, at issue, for example, would be the sidewalks at other locations up and down the parade route that, at different moments, hold particular significance, like right now, the sidewalk in front of the Trump International Hotel.

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That, too, is set aside as an exclusive use zone that, again, is set aside based on

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viewpoint vetting and viewpoint access.

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You mentioned the, this is the second time you've mentioned the set aside based on viewpoint vetting or viewpoint access and I wonder where you would point us to in the record that supports that claim.

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That the, that somehow at the threshold when the MPS is making permitting determinations that it is taking into account

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how the pick or the non-pick groups are planning to provide access to the space.

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I take it that that's an important part of your claim of why it is content-based to favor the pick over other groups.

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Correct.

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So where in the record should we look for

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support of that or for that allegation both?

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We have cited those propositions both in our opening brief and in our reply brief with reference to the record.

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In shorthand there are two mechanisms by which this is identified.

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What the Park Service does is it sets it aside for the private partisan presidential inaugural committee.

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It's a private

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a political entity, it is not a public entity.

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So they are determining based on that determination that the public fora is being given to a preferred public actor that is espousing government-favored views, which is of course different than government speech.

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So I understand that's one layer in your case, that that alone is identity-based and therefore, in your view, content-based.

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The second layer is the issue of the presidential inaugural committee itself, which engages in

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It's delegated an unconstitutional authority to itself determine then who may access the space that has been set aside to it.

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And we have put in the record the two different examples of how that is done and has been done.

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One being, for example, that the pick

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has set aside tickets so that when the public, for example, calls Ticketmaster and seeks to get tickets, those tickets are not available to the public.

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Those tickets are available.

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The Ticketmaster is given a, they have a list and people, funders and supporters are given numbers by the TIC and by the PIC and unless they present a particular number identifying them as allowed to get a ticket from Ticketmaster, they can't get them.

[00:12:16] Speaker 04:
But it's not your allegation that that is

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part of what is known to or a criterion for the Park Service in its decision?

[00:12:29] Speaker 02:
Yes, so in its decision, the Park Service and in promulgating the regulations and throughout the history of this litigation and the prior litigations over the inaugural parade route, the Park Service has repeatedly used reference to the fact that the pick, as a private actor,

[00:12:44] Speaker 02:
is entitled to engage in its own viewpoint, its own First Amendment actions, without interference or injection of dissenting views inside its own speech.

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In fact, an oral argument at the lower court council for the Park Service talked about the right of the pick

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and its supporters to have their own First Amendment expression along in Freedom Plaza without interference from other viewpoints.

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That has been acknowledged by the government throughout that it is viewpoint-based.

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When they promulgated the regulations, the regulations themselves talk about this being set aside as exclusive use for the PIC, and when then they discuss and set aside for the PIC's chosen ticketed supporters and that- Let me ask you, Ms.

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Hillygard.

[00:13:31] Speaker 04:
The Perk Service had a program of giving permits to groups wanting to hold parades.

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And they said, when you get a permit from us, you get this prime path, and you get Freedom Plaza for the media staging, and you get

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this segment of, you know, one-tenth of the sidewalk along the way.

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And everything else has to stay open.

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But that's something that a permit gets you as a parade organizer.

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And we don't care who you are, but you're gonna get that.

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And then they take, without any viewpoint or content, all groups, all comers, answer, pick, armed forces,

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Irish St.

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Patrick's Day parade.

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Is that, in your view, content-based discrimination?

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The Park Service normally has a permanent system that is a first-come, first-serve system.

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On inauguration day, that system is set aside for- I understand, but I'm giving you a hypothetical.

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Yes.

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I'm saying if, as a general matter, the Park Service had a permitting that allowed a parade permit holder to have control of Freedom Plaza on their parade day, would that be a First Amendment violation in your view, and if so, why?

[00:15:07] Speaker 02:
I think it would depend on the day.

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So when we're talking about the inauguration day, for example- What if it's MLK Day?

[00:15:12] Speaker 02:
Well, because the Mahoney Court recognized that the inauguration is an event less private than anything else imaginable.

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I believe it places it in different circumstances than any other day.

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And here, the media stand is not a challenge.

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The facilitative stands are not under challenge.

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So just your answer is, yes, it would be a first time problem because it's inauguration day?

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Because it is Inauguration Day, no one is challenging the access to the parade room.

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But why not?

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If your theory is that it all has to be even-handed, and what PIC has applied for is not a parade permit, but what's called an event permit, which includes some seating as well as the parade.

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And under your theory,

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What if, answer, or someone else had gotten there at the first moment to apply for an event, including a parade on January 20th?

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Because what a great day, a lot of people and a lot of media and the whole world watching.

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We'd like the parade.

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Are you saying that the government engages in unconstitutional viewpoint discrimination if it doesn't hand out the entire event permit, bleachers and parade, on a completely time stamp basis?

[00:16:28] Speaker 03:
with regard to the parade no but you're breaking this is what i don't understand you're breaking it into parade and seating on the side but they didn't apply for parade permit they applied for an event a special event permit which includes not just the parade route but also some seating and media areas and porta potties and security areas all these types of things it's a package

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And so I'd like to know what the answer to the question is.

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If you had applied for a special event permit that included both a parade and area for your individuals to stand along, those who aren't marching want to stand on the side and cheer, and you'd been first, would they have had to give it to you?

[00:17:10] Speaker 02:
For the parade, there's no application for the parade.

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The parade is seriously distinct from the public forum on the sidelines.

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No, well that's the question.

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I don't know why that's so.

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No, they have never sought the parade route.

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They're not trying to inject themselves under Hurley.

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We do not believe that they would be in the parade.

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We do not believe that.

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No, no, no, my question is, I'm gonna try it one more time, okay?

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You're not getting in someone else's parade.

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whether they could take the parade route in whole on Inauguration Day.

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If you're the first application in seeking to do an event that includes a parade that day, would they have to give it to you?

[00:17:46] Speaker 02:
On Inauguration Day, I don't believe so because I believe there are unique circumstances related to that parade.

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And by the way, the parade route is not under jurisdiction of the Park Service, it's under jurisdiction of the MPD.

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the Pennsylvania Avenue.

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It's the sidewalks in the parkland that abut the parade route, the opportunity for people to be able to communicate.

[00:18:04] Speaker 03:
The first amendment applies to D.C.

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just as much as the federal government.

[00:18:07] Speaker 02:
I would just say in terms of a permit application, there's no permanent system for that.

[00:18:11] Speaker 03:
And so for purposes of issuing parade permits, at least there's no first amendment problem with favoring

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pick for the parade route on January 20th?

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Is that your position?

[00:18:26] Speaker 02:
Well, for favoring the government, the parade route is actually administered by the Armed Forces Inaugural Committee and is facilitated through that.

[00:18:36] Speaker 02:
The pick has a role in terms of selecting... Again, is there any problem with favoring

[00:18:42] Speaker 03:
that there will be an inaugural parade and no one else can start the parade that day.

[00:18:48] Speaker 02:
Why not?

[00:18:49] Speaker 02:
Because we believe that the inaugural ceremony area is unique, that there are arguments that can be made to the unique nature of that.

[00:18:57] Speaker 02:
to the parade route itself as an expression on that day, to the presidential reviewing stands that are in front of the White House, which have also been addressed in other litigation in Saffron about the unique nature of that.

[00:19:10] Speaker 03:
But what we're talking about... But why doesn't the Constitution allow that unique list to include a limited section of seating for the people that are... It's their party, it's their parade, it's their event,

[00:19:25] Speaker 03:
and so we're going to let them have a set aside for the people that will clap or even they won't clap.

[00:19:32] Speaker 03:
They're just going to have a set aside for some seats.

[00:19:35] Speaker 03:
That's just part of the package deal that comes with it, whether they clap or not.

[00:19:42] Speaker 03:
You can ask whether they've set aside the whole parade area.

[00:19:45] Speaker 03:
We know that's way too much, but shouldn't the argument be not

[00:19:50] Speaker 03:
segregating out the bleachers in that seating as though it is entirely distinct from this event.

[00:19:57] Speaker 03:
But shouldn't the inquiry be, there's this event, and it's perfectly constitutional to have a set-aside.

[00:20:04] Speaker 03:
When people apply for such events, they want to have some bleacher areas as well, whether it's PIC or anybody else who's parading up and down Pennsylvania Avenue and working with us.

[00:20:14] Speaker 03:
They want to have some set-aside area.

[00:20:16] Speaker 03:
And we just need to ask whether the set-aside that's been done

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as part of this event is itself a content-based form of discrimination.

[00:20:28] Speaker 03:
And if they just say it comes with the event,

[00:20:33] Speaker 03:
So we just need to look at whether it's too much, whether it's all the good lands set aside for the people that are doing the parade, and everybody else is shoved behind trees where nobody can see them.

[00:20:43] Speaker 03:
Isn't that the analysis, instead of breaking this out into what's the speeches that comes from sitting on a bleacher seat?

[00:20:50] Speaker 02:
No, Your Honor, I would disagree with that analysis.

[00:20:54] Speaker 02:
And the reason why is that

[00:20:56] Speaker 02:
The parklands, the sidewalks, the spaces abutting the parade route, which are acknowledged to be quintessential public forum on a day that is acknowledged to be less private than anything else imaginable.

[00:21:05] Speaker 02:
It's not a private party.

[00:21:07] Speaker 02:
And there is space that is set aside in the grandstand area.

[00:21:10] Speaker 01:
I'm not understanding this logic, because if you have the July 4th event, for example, on the mall, there's the symphony plays, and they're seating there.

[00:21:20] Speaker 01:
Seating – there's preferred seating.

[00:21:22] Speaker 01:
I'm sure that – I've never been, but I'm sure that you – that somebody makes a determination of who gets to sit in those choice seats to watch the symphony firsthand as part of the July 4th celebration.

[00:21:32] Speaker 01:
Now, there's no doubt the entire national mall is a traditional public forum.

[00:21:35] Speaker 01:
It's the quintessential public forum, maybe the most important public forum in America.

[00:21:40] Speaker 01:
But for those purposes, somebody in the government gets to decide who sits in those seats because it's a July 4th event, and part and parcel of holding that event is deciding who gets to choice seats.

[00:21:53] Speaker 01:
So why isn't it just part of holding the event that there are prime seats that are along the route, and as Judge Millett pointed out, we can talk about whether it's the right number of seats or whether too much space has been allocated for seats.

[00:22:06] Speaker 01:
But part and parcel of holding the event is to have some seats that are prime seats, and the person who, the entity that's putting on the event gets to determine who gets those choice seats for friends and family and things of that nature.

[00:22:18] Speaker 02:
Well, in fact, on the 4th of July, the vast open spaces of the mall and spaces around where the symphony occurs, the public is allowed to come.

[00:22:28] Speaker 02:
There isn't a vetting viewpoint.

[00:22:29] Speaker 01:
But what about the seats?

[00:22:30] Speaker 02:
There's nothing in the record as to seats.

[00:22:32] Speaker 02:
I don't know how the seats are administered.

[00:22:33] Speaker 01:
Well, let's just hypothesize that not everybody gets to do it.

[00:22:35] Speaker 01:
It's not just first comes first serve, and there's not a mad rush to the seats.

[00:22:39] Speaker 01:
I assume that there's some allocation to determine who gets to sit in those seats.

[00:22:42] Speaker 01:
I might be wrong, but let's just assume that.

[00:22:44] Speaker 01:
Let's just assume that.

[00:22:45] Speaker 01:
Let's just assume that.

[00:22:47] Speaker 01:
What's wrong with having prime seats in particular locations that are for the event – the people who are running the event – to dole out?

[00:22:57] Speaker 01:
That's part of having the event.

[00:22:58] Speaker 02:
Well, on the 4th of July, the seats are facing the symphony, which I would say is completely different than people who are assembling for speech and debate purposes on the inauguration to communicate with the president.

[00:23:09] Speaker 01:
Aren't the seats facing the parade?

[00:23:11] Speaker 01:
the Fourth of July?

[00:23:12] Speaker 01:
No, in the Inauguration.

[00:23:13] Speaker 02:
No, that's what I'm saying.

[00:23:14] Speaker 02:
On the Fourth of July, the seats are, in your hypothetical, these seats are seats that are, presuming there are some set-aside or set-aside based on the, for the symphony, which I would say is completely different.

[00:23:27] Speaker 02:
And again, I don't know what they do, but I would say it's completely different

[00:23:30] Speaker 02:
than on Inauguration Day when you're talking about public forum and communicating with the president.

[00:23:36] Speaker 01:
Do you think there's anything wrong with having a block of seats that's set aside for friends and family?

[00:23:42] Speaker 02:
I think that there are seats that are set aside over at the Pennsylvania Avenue, over at the White House.

[00:23:49] Speaker 02:
But I believe that the other seats, and again, the burden is on the government.

[00:23:52] Speaker 01:
And that's OK.

[00:23:53] Speaker 01:
The seats are closer to the White House than the ones that apparently were set aside.

[00:23:57] Speaker 02:
And as we address in our brief, it has unique security functions, unique considerations.

[00:24:01] Speaker 02:
It was addressed, I believe, also in Safran.

[00:24:03] Speaker 02:
Here the government has an obligation to say it's not a reasonability test to public forums set aside.

[00:24:08] Speaker 02:
The government had an obligation to put forward its burden as to one, if this is content-based, they've never advanced a compelling interest ever.

[00:24:16] Speaker 02:
So that is fatal.

[00:24:17] Speaker 04:
So we're getting back to whether it's content-based.

[00:24:19] Speaker 02:
Yes.

[00:24:20] Speaker 04:
Whether it's content-based.

[00:24:22] Speaker 04:
Is it your claim that if a group other than Answer had been there at 8 a.m.

[00:24:29] Speaker 04:
and been the first stamped, and their plan was to congratulate the president and hold signs saying, president for life, and maybe they wanted to have bleachers, maybe they wanted to have a demonstration, but they wanted it on that raised freedom plaza, that they would have been granted the permission that you were denied?

[00:24:50] Speaker 04:
Is there any basis in the record to conclude that such a group would have been granted priority where answer wasn't?

[00:24:58] Speaker 02:
Where answer wasn't?

[00:25:00] Speaker 02:
No.

[00:25:00] Speaker 02:
But if they were first, they should be granted priority.

[00:25:03] Speaker 02:
What's in the record is that the priority exclusive set aside by operational regulations is for the private partisan pick.

[00:25:09] Speaker 02:
It's not set aside for neutral administration.

[00:25:12] Speaker 03:
But if that's inconsistent with the notion, that would mean that you cannot say that the event organizer

[00:25:18] Speaker 03:
gets some reasonable amount of seating for its people.

[00:25:25] Speaker 03:
It's part of having the event.

[00:25:28] Speaker 02:
I think it depends on how we define the public force status and the obligation of the government to meet a burden as to any type of set-aside that is a viewpoint-based set-aside.

[00:25:39] Speaker 03:
Let's imagine on January 21st another group applies

[00:25:43] Speaker 03:
They coordinate with DC, the federal government.

[00:25:45] Speaker 03:
They want to have a parade from the Capitol up to as close to the White House as they can get.

[00:25:50] Speaker 03:
And they want to have an event.

[00:25:52] Speaker 03:
And it will include a parade protesting whoever's just been inaugurated as president.

[00:25:59] Speaker 03:
And they would like to have some seats, the same 13% along the route.

[00:26:07] Speaker 03:
And you're saying, and they grant it.

[00:26:10] Speaker 03:
They go, this is how the event, this is a package deal.

[00:26:12] Speaker 03:
Do you have any reason to think that wouldn't get granted?

[00:26:15] Speaker 02:
I believe it can only be granted based on a first-come, first-served basis.

[00:26:19] Speaker 02:
So anything can be granted within that that's under the Park Service's jurisdiction under a first-come, first-served basis, yes.

[00:26:28] Speaker 02:
if it's first come first serve, but what's happening by operation of the regulation is there is no first come first serve basis, and it is a government set aside not for a neutral administration of space, but for a viewpoint-based administration of space.

[00:26:41] Speaker 03:
Well, at least as of 2017, there's at least a fact dispute as to first come first serve.

[00:26:46] Speaker 03:
Yes.

[00:26:47] Speaker 03:
And is it your position that if you, and I understand it's a fact dispute, if you lose that fact dispute, your case is over?

[00:26:53] Speaker 02:
No, because regardless of that, we believe that there is still a dispute as to the set-aside of the – And what would that dispute – it wouldn't be a content-based one, right?

[00:27:04] Speaker 03:
You say they were there – if the facts were that they were first in time, then what would the dispute be?

[00:27:10] Speaker 02:
The dispute would continue because every four years we're going to have the same problem.

[00:27:15] Speaker 02:
There is an injunction right now in place that stops the Park Service from operating in a discriminatory fashion to administrate the permitting system for the Park Service to have somehow had a separate stamping system or stamped later and that would be in violation of that injunction.

[00:27:32] Speaker 03:
I'm assuming that there was actually a nanosecond there that someone didn't see.

[00:27:37] Speaker 03:
that it is first in time, that that's a factual determination.

[00:27:40] Speaker 03:
So then that dispute's gone.

[00:27:41] Speaker 03:
There just isn't a dispute that that was first in time.

[00:27:45] Speaker 03:
Then is your case over?

[00:27:46] Speaker 02:
No, the case is not over, because the issue is striking the regulations as they stand, and we would have the same problem every four years.

[00:27:52] Speaker 02:
If you're talking about this inauguration, then there's another permit that's first in time, and that permit operated without the regulatory set-aside.

[00:28:01] Speaker 02:
We're in this court to strike the regulatory set-aside, and then it turned back to the first in time permits.

[00:28:06] Speaker 02:
then whoever is first in time gets that space, whether it is any group of any ideology or any position or any view.

[00:28:14] Speaker 03:
But what if everybody who does this event, when they do an event and a package deal, they get a set aside as part of their package, no matter who it is?

[00:28:25] Speaker 03:
Then you would agree that, at least, would not be content-based or viewpoint-based discrimination.

[00:28:29] Speaker 02:
I think the problem I'm having is because the permitting system has to operate within the way that the Park Service permits do operate and the way the system has been written as the Park Service has been brought to this court over and over again for 40 to 50 years to fine tune a permitting system that would operate within constitutional bounds and have no viewpoint discrimination and would allow for a first in time set aside.

[00:28:54] Speaker 02:
Whoever comes and puts in for a permit and says, I would like this space and I would like this space, they're first in time for that permit.

[00:29:01] Speaker 02:
And the other thing is the government has never met a burden to show that why there's a unique reason why they must have these particular spaces or that it advances.

[00:29:10] Speaker 01:
It seems they get to have some spaces to have bleachers.

[00:29:15] Speaker 01:
I assume you don't dispute that proposition.

[00:29:16] Speaker 01:
That part of having a parade is having some seats.

[00:29:20] Speaker 01:
Doesn't have to be all of them.

[00:29:21] Speaker 01:
but some number of seats for preferred guests that attend the parade.

[00:29:27] Speaker 02:
And they do have that.

[00:29:28] Speaker 02:
They have massive grandstands and bleachers along Pennsylvania Avenue by the White House.

[00:29:33] Speaker 02:
And whether or not the pick is a private

[00:29:37] Speaker 02:
partisan entity put in for set-aside bleachers for funders and donors.

[00:29:43] Speaker 02:
I mean, it's an organization that raises tens of millions of dollars in funds, does not have to disclose where the money goes, and has millions of dollars left over every year.

[00:29:52] Speaker 02:
The government has no interest in that.

[00:29:53] Speaker 03:
But then that sounds like an argument, not that it's content or viewpoint-based.

[00:29:58] Speaker 03:
It's just that too much bleacher space has been set aside for the pick.

[00:30:03] Speaker 03:
So they've got the Pennsylvania Avenue stuff near the White House.

[00:30:07] Speaker 03:
That's more than enough.

[00:30:08] Speaker 03:
And Freedom Plaza just shouldn't be part of this.

[00:30:11] Speaker 02:
Well, to point to what the Park Service said itself when it set aside the space in front of the White House, the Park Service has not administered this space except since the late 90s.

[00:30:23] Speaker 02:
And there is nothing in the record that there was a set-aside like this that these seats were not open to the public.

[00:30:29] Speaker 02:
In fact, it appears historically that the seats, to the extent there were bleachers in whatever spaces, were open to the public.

[00:30:37] Speaker 02:
So the issue of whether or not now there is a right to set-aside only for funders and supporters.

[00:30:42] Speaker 02:
But when the Park Service has promulgated the regulations in response to Quaker action,

[00:30:45] Speaker 02:
and Women's Strike for Peace cases, setting aside the space in front of the White House, they said in the regulations that the justification was that it served and satisfied their need to provide space to the incoming administration and the PIC, and that that satisfied the need.

[00:31:06] Speaker 02:
So this later taking of space

[00:31:12] Speaker 02:
They said that need was already satisfied.

[00:31:14] Speaker 02:
The burden is on the government to put on the record why they would need to have a viewpoint-based set-aside of public space.

[00:31:22] Speaker 02:
What the interest is, they have been unable to identify an interest.

[00:31:27] Speaker 01:
But it's not, I feel like we're coming back to the same point every time.

[00:31:31] Speaker 01:
It's not viewpoint-based insofar as the set-aside is to provide preferred seating for friends and family.

[00:31:38] Speaker 01:
Because you've already said that with respect to the White House.

[00:31:41] Speaker 01:
So we know that there's at least some seats that the government who's hosting and operating the parade gets to set aside for friends and family.

[00:31:51] Speaker 01:
And these are more seats.

[00:31:53] Speaker 01:
And you might – it sounds like your argument is, well, they've already told us that the White House seats are enough, so this is too much.

[00:32:02] Speaker 02:
That's not the point that I'm making, Your Honor.

[00:32:05] Speaker 02:
We are not conceding that the White House set aside somehow then legitimizes taking space elsewhere.

[00:32:11] Speaker 02:
In fact, in addition, when they promulgated these regulations, they said that this set aside of the three quarters of space in front of the White House with the corridor left open to the general public elsewhere in Lafayette Park, which has never been challenged in this court.

[00:32:25] Speaker 02:
been challenged on a constitutional level, but that that has unique security concerns, unique reasons why it's appropriate to set aside that space.

[00:32:34] Speaker 02:
But when they promulgated the regulations, they said that in so doing, they satisfied any need or obligation.

[00:32:41] Speaker 02:
And moreover, they said that it was justified because the rest of the public forest space was left open, regardless of viewpoint.

[00:32:48] Speaker 02:
When they promulgated these regulations, again, going back to

[00:32:52] Speaker 02:
the question about the viewpoint issue in the regulations, they there, the Park Service again said that, acknowledged that this is viewpoint based for the use of the pick and that when they enacted the ten-minute rule, people could come in regardless of viewpoint.

[00:33:09] Speaker 03:
Does it have to be labeled viewpoint for you to argue this point that Freedom Plaza is just

[00:33:16] Speaker 03:
from the approach too far.

[00:33:18] Speaker 02:
No.

[00:33:18] Speaker 02:
In fact, we don't believe the government has failed to meet its burden even under an intermediate scrutiny standard.

[00:33:25] Speaker 02:
Absolutely.

[00:33:25] Speaker 02:
They have not met that burden.

[00:33:26] Speaker 02:
They had an obligation to put record evidence in before this court that showed what their interests were, that the restrictions that they have imposed.

[00:33:35] Speaker 03:
And then can I ask you a fact question?

[00:33:36] Speaker 03:
Yes.

[00:33:37] Speaker 03:
The non-freedom positive leaders, the ones up near closer to the White House, are those

[00:33:43] Speaker 03:
apart from the reviewing stand.

[00:33:44] Speaker 03:
Are those bleachers also sold for funds?

[00:33:48] Speaker 03:
Or is it just the Freedom Plaza ones?

[00:33:49] Speaker 02:
We don't know.

[00:33:50] Speaker 02:
There's nothing in the record evidence about that.

[00:33:53] Speaker 02:
We just know in terms of people seeking tickets for bleachers, which presumably would not be the White House bleachers because of security issues that they cannot, I can't speak to.

[00:34:03] Speaker 02:
And the government's never put anything, no record evidence on this issue.

[00:34:07] Speaker 04:
You argue that there was political or viewpoint-based vetting in the giving of the seats.

[00:34:13] Speaker 04:
And I asked you if you could point me to someplace and record on that.

[00:34:18] Speaker 04:
And you directed me to your brief.

[00:34:19] Speaker 04:
Do you have any more specific?

[00:34:20] Speaker 02:
May I do that during the break?

[00:34:22] Speaker 02:
And I'll return back so I don't use up time now.

[00:34:24] Speaker 02:
And I'd be happy to point to that.

[00:34:26] Speaker 02:
The other element that I was getting to about the vetting, which is also in the brief, is that, in fact, in the last inauguration in 2013, when the Park Service sets aside the space for the private partisan political organization, they tell the Answer Coalition the permit is deemed granted

[00:34:43] Speaker 02:
unless denied within 24 hours.

[00:34:45] Speaker 02:
So the permit was deemed granted.

[00:34:46] Speaker 02:
They did not revoke the permit.

[00:34:48] Speaker 02:
They said that we won't know whether we're revoking the permit until the peak tells us whether they want the space and whether they'll let you be on it.

[00:34:55] Speaker 02:
So for 2013, the Answer Coalition then

[00:34:58] Speaker 02:
had to sit down with the presidential inaugural committee, who has delegated this unfettered discretion and authority to engage in viewpoint vetting, where they questioned them about their political views, their intentions, what message they wanted to convey from Freedom Plaza, and came back to them afterwards and told them

[00:35:16] Speaker 02:
we do not believe that it's compatible, that we have a competing interest in the expression of speech from the space and therefore you can't have it and we have it all.

[00:35:24] Speaker 02:
So there too, it goes to both the viewpoint discrimination but also this other element of unconstitutional administration where the Park Service is setting up a system where it's giving this authority to a private entity to engage in viewpoint vetting, both in terms of the sale of tickets and in terms of access to the space overall.

[00:35:44] Speaker 01:
And for the seats that are closest to the White House that you don't contest, could you make the same argument about content or viewpoint?

[00:35:53] Speaker 02:
I think with the seats closer to the White House, and again, looking at the court's rulings in saffron and related cases, that because those seats are distinct, they have a unique security concern.

[00:36:04] Speaker 02:
That was the issue in saffron, as to who can have access to the space in front of the White House.

[00:36:08] Speaker 03:
Well, let's be clear about that.

[00:36:09] Speaker 03:
There are seats in addition to the reviewing stand, correct?

[00:36:12] Speaker 03:
There are large grandstands.

[00:36:13] Speaker 03:
In addition to the reviewing stand, there's also, you said, part of it that's publicly accessible, correct?

[00:36:18] Speaker 02:
No, there's an outside corner of Lafayette Park, one quarter that remains publicly accessible and it's set aside.

[00:36:26] Speaker 03:
So they would have to show, so put aside the reviewing stand, which definitely I would think would be an excellent argument that there's security concerns there.

[00:36:34] Speaker 03:
For the rest of it, they would have, the only thing that saves them from the same First Amendment challenge would be an assertion that for security reasons,

[00:36:44] Speaker 03:
They have to let Pick hand out those seats.

[00:36:50] Speaker 03:
Is that your point?

[00:36:51] Speaker 02:
No.

[00:36:51] Speaker 02:
I was addressing what the court addressed when it adjudicated access to the White House area space on Inauguration Day.

[00:36:58] Speaker 02:
And the court went through.

[00:36:59] Speaker 01:
Then why can't you?

[00:37:01] Speaker 01:
If it's not security-based, then why wouldn't the same challenge be available with respect to those seats?

[00:37:05] Speaker 02:
Because that is, again, a unique location that is... What's unique about it?

[00:37:12] Speaker 02:
That the President of the United States is sitting there engaging in ceremonial function of reviewing.

[00:37:18] Speaker 02:
That that is a unique area and a unique purpose, which is different, again... You said the public gets to be at least a corner of Lafayette Park.

[00:37:25] Speaker 02:
Not along Pennsylvania Avenue in that.

[00:37:28] Speaker 02:
They're back over by H Street, I believe.

[00:37:32] Speaker 02:
It's a distinct set-aside over there.

[00:37:34] Speaker 03:
And it was set-aside again on the basis of the- Would your First Amendment arguments, your sort of uber First Amendment on January 20th say, look, they've got, he's enclosed in, I'm sure, glass, bulletproof glass, and they can do whatever they need for security, but being within earshot of the incoming president, boy, the First Amendment interest is at its apex.

[00:37:59] Speaker 03:
Why wouldn't your argument be the opposite of what you're saying?

[00:38:03] Speaker 03:
If there's not actually a security need as to those stands.

[00:38:06] Speaker 02:
I'm not saying that there isn't a First Amendment interest there.

[00:38:08] Speaker 02:
I'm saying that as the court adjudicated the saffron, it went through the First Amendment interest as against the unique site, the unique location, the unique needs and nature of it.

[00:38:19] Speaker 03:
And that was more than the reviewing stand?

[00:38:20] Speaker 03:
Pardon?

[00:38:20] Speaker 03:
And that was more than the reviewing stand?

[00:38:22] Speaker 02:
It was just that area.

[00:38:26] Speaker 02:
in front of the White House, so there's large grandstands on both sides of the street.

[00:38:30] Speaker 03:
But is that the only place there's grandstands?

[00:38:32] Speaker 03:
I thought there were more grandstands a little bit further away on Pennsylvania.

[00:38:36] Speaker 02:
It's the Pennsylvania Avenue block between 15th and 17th Street, that area that's set aside that's now distinct, that's closed to traffic, that's closed to pedestrian, I mean to vehicular traffic.

[00:38:47] Speaker 02:
That area is set up and set aside, but that area is distinct, is unique, is not the case that's before this court.

[00:38:56] Speaker 03:
And when they set it up... The other case isn't before us, but we're trying to understand what the implications of a ruling based on the arguments you're advancing would be for that area put aside the reviewing stand itself.

[00:39:08] Speaker 02:
Well, and we address that issue in our briefing, but we believe, as the Saffron Court addressed, that there are unique considerations to that location that are not present when you're talking about the sidewalks in the parkland of Pennsylvania Avenue.

[00:39:22] Speaker 01:
What is the unique consideration, again, that gives the government greater leeway to engage in precisely the same form of ticket administration in that location as opposed to the location we're talking about today?

[00:39:34] Speaker 02:
We don't know that they are engaged in precisely the same form of ticket allegation.

[00:39:38] Speaker 01:
Again, the record is a devoid of any evidence of that.

[00:39:41] Speaker 02:
Yes, they are deciding who sits there.

[00:39:43] Speaker 02:
But with the other spaces, those tickets are sold to people as a fundraising mechanism.

[00:39:49] Speaker 02:
There is no evidence that there is some security evaluation as to who gets to sit there.

[00:39:54] Speaker 02:
It was simply whether or not people were funders or supporters.

[00:39:57] Speaker 02:
In the record,

[00:40:00] Speaker 02:
we were able to show that they had lists with identification as to sort of the order of who gets the tickets.

[00:40:07] Speaker 02:
And the general public was never allowed to get the tickets in what we were able to show.

[00:40:12] Speaker 02:
Now for the Obama inauguration, that made a determination that was going to allow some of the tickets.

[00:40:19] Speaker 02:
wherever to be allowed open to the public.

[00:40:22] Speaker 02:
Again, that's not the same as the space along Pennsylvania Avenue.

[00:40:25] Speaker 02:
This is the one area where the people are allowed to stand and express themselves regardless of viewpoint.

[00:40:31] Speaker 02:
And our assertion is that it's the government's burden to be able to put forward that it has

[00:40:40] Speaker 02:
met a public forum test in order to set aside that space, and they have not done that.

[00:40:47] Speaker 01:
On the question of which public forum test as between enemy scrutiny and something more strict, that turns on whether the restriction is content-based or not, and whether it has to do with expression or not.

[00:40:56] Speaker 01:
Can I just ask this?

[00:40:57] Speaker 01:
Yeah.

[00:40:58] Speaker 01:
In the July 4th situation, would you say that the people who have the best seats to watch the symphony and are therefore given choice tickets to watch it, are they engaged in expression when they're watching?

[00:41:12] Speaker 02:
I think because the symphony is not the government and there's not an expression to the symphony, they are a passive recreational audience, but also the vast portions of the mall are not set aside based on viewpoint.

[00:41:25] Speaker 02:
There are security checkpoints, but no one is being ticketed as to who may come in and who may come out.

[00:41:29] Speaker 01:
I guess the question I'm asking though is when you set aside seats to have a choice vantage point for an event,

[00:41:36] Speaker 01:
When the government sets aside those seats, is it providing a forum for expression for the people that sits in the seats, or is it just providing a vantage point for people to watch expression in the form of the parade?

[00:41:48] Speaker 02:
I think that question turns on the medium at issue at the moment in time.

[00:41:52] Speaker 02:
So the medium at issue in the moment in time that we're talking about is the sidewalks in the parkland along Pennsylvania Avenue where people want to be able to come, regardless of viewpoint, to be able to express themselves, regardless of viewpoint, or just witness.

[00:42:09] Speaker 02:
the parade as it's passing by and the president as the president passes by.

[00:42:13] Speaker 04:
That, I believe, is completely- I couldn't want to say that on the 4th of July, which is a really apex of the American people's expression of our patriotism.

[00:42:25] Speaker 04:
And if somebody said, I want to have equal access to those tickets because when the symphony plays the national anthem, my plan is that we want to stand up and turn our backs.

[00:42:37] Speaker 04:
And that's our plan.

[00:42:39] Speaker 04:
And so everyone who's not doing that is expressing a patriotic view.

[00:42:43] Speaker 04:
And those of us who want to go on there and do that are expressing a demonstrating counter, really important core, visible political view.

[00:42:54] Speaker 04:
Isn't that analogous to what you're asking for here, and wouldn't you have to concede that in that instance, that allowing a private group to have, or allowing any organizing group to have a friends and family section would be in violation of the First Amendment?

[00:43:09] Speaker 02:
I would not, again, because I believe that the medium and the location of the event is different.

[00:43:14] Speaker 02:
The same reason the Mahoney Court said that the inauguration is a less private event than almost anything else conceivable.

[00:43:21] Speaker 02:
And it is that moment when we have a peaceful transition of government and we have an expression of democracy.

[00:43:28] Speaker 02:
It is for the people to be able to come along the parade route and debate.

[00:43:32] Speaker 01:
So you think the July 4th event on the mall

[00:43:35] Speaker 01:
is meaningfully less public than the inaugural parade.

[00:43:40] Speaker 02:
I'm talking about the difference between the president coming by and people being able to communicate themselves.

[00:43:45] Speaker 02:
I'm referencing the Mahoney Court's view of that event.

[00:43:48] Speaker 02:
And we're going back and forth between the seats over in the Capitol area where the symphony is, the vast breadth of the National Mall, which again is not set aside based on any type of viewpoint.

[00:43:58] Speaker 02:
And the Park Service does have a set aside of national ceremonial events.

[00:44:02] Speaker 02:
So if the Park Service can set aside spaces for national ceremonial events, that is one thing, but can it set aside spaces based on a viewpoint allocation?

[00:44:12] Speaker 02:
Can it set aside the space?

[00:44:13] Speaker 02:
It is not that the Park Service set aside space and said,

[00:44:17] Speaker 02:
Nobody gets exclusive use, and everyone comes first come first serve, or that they said, we're going to do bleachers in some locations, and there would be an issue as to what were the appropriate locations for bleachers.

[00:44:28] Speaker 02:
But again, those are completely open.

[00:44:30] Speaker 02:
What they said is we're taking these very significant areas along the sidewalks, along the parkland of Pennsylvania Avenue, and we're setting those aside on an identity-based, content-based determination, which runs afoul of read,

[00:44:43] Speaker 01:
But it's viewpoint and content-based if the people who are being allowed to sit there are expected to engage in expression, as opposed to giving out choice seats to watch expression.

[00:44:56] Speaker 01:
That's what seems a little bit different about this.

[00:44:58] Speaker 02:
No, because it's viewpoint and content-based in the first step, because it's given to the private partisan presidential inaugural committee, who then can make a determination as to who comes along.

[00:45:08] Speaker 03:
The government itself has acknowledged that that is- But that's just an early issue, right?

[00:45:10] Speaker 03:
If we look at it as a package deal,

[00:45:13] Speaker 03:
then once they've got their package, to whom they wish to give it out is much like Hurley.

[00:45:17] Speaker 03:
It's their event.

[00:45:18] Speaker 03:
If the set-aside is otherwise reasonable, it's not too much, it's not all the best parts, where protesters can't be seen in the other locations, then if the set-aside is reasonable in a mountain location, then how they privately allocate it is not a content-based problem for the government.

[00:45:40] Speaker 02:
I don't believe that it's a hurly application as to the spaces alongside the parade route.

[00:45:46] Speaker 02:
It is not a private event.

[00:45:47] Speaker 02:
It is a public event.

[00:45:49] Speaker 02:
It is paid for by the taxpayers.

[00:45:51] Speaker 02:
It is put on by the government, the parade route itself.

[00:45:55] Speaker 02:
It is put on by the American Armed Forces Inaugural Committee.

[00:46:00] Speaker 02:
It is very different than the private partisan pick.

[00:46:02] Speaker 02:
And there's nothing in the record that shows that removing these bleachers serves even a significant

[00:46:09] Speaker 02:
I mean, that maintaining these bleachers or maintaining a viewpoint-based or exclusive view set-aside for the PIC advances any government significant interest, even under their preferred intermediate scrutiny standard.

[00:46:23] Speaker 03:
And if it were determined that it wasn't a viewpoint- or content-based problem, and when we're just looking at the reasonableness of the set-aside, so put aside viewpoint and content, what is your best argument?

[00:46:34] Speaker 03:
But this is just too much of a set aside or too much choice lambed.

[00:46:42] Speaker 02:
Well, the government needs to first obviously put forward a significant interest.

[00:46:46] Speaker 02:
And the significant interest that is put forward, it then has to show that there's a real nexus between the challenge regulation and that significant interest, that there is a harm to be averted, that the advancement.

[00:46:56] Speaker 02:
I know the past is right.

[00:46:56] Speaker 02:
And it has never done that in this case.

[00:46:59] Speaker 02:
And specifically with regard to Freedom Plaza, the very fact that the Answer Coalition shared space on Freedom Plaza

[00:47:04] Speaker 02:
in 2009.

[00:47:06] Speaker 02:
And the parade went on, and there was inauguration.

[00:47:08] Speaker 02:
And there was no threat to the celebration or the parade or the inauguration, which is what the government has put forward as its interests.

[00:47:17] Speaker 02:
That shows that there is nothing about the regulatory set aside in Freedom Plaza that advances a government interest.

[00:47:25] Speaker 02:
And the government has never identified an interest in particularity.

[00:47:29] Speaker 02:
All the interests are in the abstract, because there is no challenge to

[00:47:32] Speaker 02:
facilitative measures like toilets, there's no challenge to the Armed Forces Inaugural Committee facilitation stands, there's not a challenge to media stands.

[00:47:42] Speaker 04:
Isn't it your position, Ms.

[00:47:44] Speaker 04:
Farhad and Hillyard, that

[00:47:47] Speaker 04:
You're really trying to say, let's do a Mahoney analysis, and the unit of analysis is the Freedom Plaza as such.

[00:47:56] Speaker 04:
And that if we look at it that way, this is just a distinctive area.

[00:48:00] Speaker 04:
It is a protest area.

[00:48:02] Speaker 04:
It is a central, historic, named, heightened protest area.

[00:48:08] Speaker 04:
And if we look at it that way, then it's like Mahoney in that protesters have been excluded.

[00:48:18] Speaker 02:
I think that when it comes to an issue where the government to get through its standards and meet an issue of narrow tailoring, yes, we believe that Freedom Plaza

[00:48:30] Speaker 02:
The answer to your question is yes, but also that the government has to meet its burden for any type of viewpoint allocation of space or any type of allocation of space at all that works to the abridgment of dissenters.

[00:48:45] Speaker 02:
So they have never done that for any of these spaces along the route.

[00:48:49] Speaker 02:
And just saying that the government should have leeway or reasonableness

[00:48:53] Speaker 02:
leaves the door wide open for an abridgment of First Amendment rights that we believe is very dangerous.

[00:48:59] Speaker 02:
There is a reason that there are bright line rules for how the government must allocate space, and that has never been presented in this case to meet those standards.

[00:49:08] Speaker 02:
So that what we're arguing is those standards have not been met.

[00:49:12] Speaker 02:
They haven't put forward an interest.

[00:49:14] Speaker 02:
But Freedom Plaza is unique.

[00:49:15] Speaker 02:
It is named after Dr. Martin Luther King.

[00:49:18] Speaker 02:
It is acknowledged by the Park Service as being a unique space for demonstration and assembly.

[00:49:23] Speaker 02:
It stands significant among all other spaces.

[00:49:26] Speaker 02:
But there are obviously, depending on circumstances, unique interests in other spaces that might be along the sidewalks as well.

[00:49:33] Speaker 02:
But we would not say that they're identical to Freedom Plaza.

[00:49:36] Speaker 02:
Freedom Plaza does stand unique.

[00:49:38] Speaker 01:
Okay.

[00:49:39] Speaker 01:
Thank you.

[00:49:40] Speaker 02:
Thank you.

[00:49:40] Speaker 01:
We'll give you some time for a bottle and I'll hear from the government.

[00:49:54] Speaker 05:
May it please the court.

[00:49:56] Speaker 05:
In 1975, this court held in a Quaker action versus Morton that the National Park Service could establish National Park Service events and reserve time on government property with a schedule of reoccurring events.

[00:50:12] Speaker 05:
And consistent with this circuit law, the National Park Service has designated six national celebration events that have been given priority use of certain limited park areas during their occurrence.

[00:50:26] Speaker 05:
All of these national celebration events have been established through a rulemaking process, including the Inauguration Day celebration.

[00:50:35] Speaker 05:
There has been a set-aside for the Presidential Inaugural Committee, as has been discussed here, for the area in front of the White House and at Lafayette Park since 1980.

[00:50:45] Speaker 05:
And the challenge here is the 2008 National Park Service rulemaking that increased the set-aside to give additional limited areas to the Presidential Inaugural Committee on Inauguration Day.

[00:50:58] Speaker 01:
So your threshold argument in a brief is that the set-aside is government speech.

[00:51:05] Speaker 01:
And what is the government expressing when it gives out tickets and allows people to sit and watch the parade?

[00:51:13] Speaker 05:
It is the government event, and the government decides who sits on those bleachers.

[00:51:19] Speaker 05:
So whatever is said by the individuals on those bleachers is the government's speech.

[00:51:25] Speaker 05:
Because the presidential inaugural committee is an arm of the president.

[00:51:29] Speaker 05:
Although it's a private entity, this court said in the Newtown case,

[00:51:33] Speaker 05:
It's a private coordinating group.

[00:51:35] Speaker 05:
It is directly responsible to the president.

[00:51:38] Speaker 05:
So if there is any speech in the bleachers that PIC has, it is attributable to what the president wants to be able to be communicated.

[00:51:48] Speaker 01:
But it seems like that's two different points, because you're hedging by saying if there's any speech.

[00:51:54] Speaker 01:
So if your position is that it's government speech,

[00:51:57] Speaker 01:
then by hypothesis, by assumption, there's expression going on and it's expression that the government wants to have disseminated on the government's behalf.

[00:52:05] Speaker 01:
If you're saying, well, there might not be any expression going on at all, then it sounds like you're saying, well, it's not, not only is it not government speech, it may not be speech at all.

[00:52:15] Speaker 05:
Well, it is – I think the – our first point is that it is a government set aside that this Court has said the government can do.

[00:52:23] Speaker 05:
It's definitely a government set aside.

[00:52:25] Speaker 05:
Set aside some of its property for government use.

[00:52:27] Speaker 05:
It is clearly for government use because you have the Presidential Inaugural Committee deciding who is going to be on the bleachers.

[00:52:35] Speaker 05:
It becomes speech because you have individuals there that are expressing some kind of speech, whether it is supportive of the president because the presidential inaugural committee.

[00:52:45] Speaker 03:
Why is sitting on the bleachers speech?

[00:52:48] Speaker 03:
I just haven't gotten this from either side.

[00:52:51] Speaker 03:
I mean, if you hold up a sign it is, but if you just sit there watching a parade, is that speech?

[00:52:59] Speaker 05:
If the individuals were sitting there and saying nothing and conveying no message, it is still perceived by the public as government supporters.

[00:53:11] Speaker 05:
So I think in that sense, it is still government speech, even though there might not be something that is being verbally expressed.

[00:53:18] Speaker 05:
You don't always have to have verbal expression in order for it to be speech.

[00:53:21] Speaker 03:
Everyone that's perceived as a government supporter is a form of government speech?

[00:53:25] Speaker 03:
I don't think you want that principle, do you?

[00:53:28] Speaker 05:
I think the point is that the individuals that are on the pick bleachers have been chosen by the government.

[00:53:36] Speaker 05:
And that's in the broad sense.

[00:53:37] Speaker 03:
They're not chosen by the government.

[00:53:38] Speaker 03:
Aren't they chosen by the pick?

[00:53:40] Speaker 05:
Well, but the pick is an arm of the president.

[00:53:42] Speaker 05:
As the district court noted, the pick is directly.

[00:53:43] Speaker 03:
Well, the pick is an arm of the president-elect at the time the tickets are given out.

[00:53:47] Speaker 03:
I don't think the president-elect is the president until January 20th at noon.

[00:53:52] Speaker 03:
And so the time the tickets are given out, it's the president-elect.

[00:53:56] Speaker 05:
Correct.

[00:53:57] Speaker 05:
That's correct, but at the time the parade comes by and people are sitting there in the bleachers, the president has been inaugurated and therefore is the president.

[00:54:06] Speaker 05:
So at that point,

[00:54:09] Speaker 05:
The people who are on the bleachers.

[00:54:10] Speaker 03:
Which is all the more reason it's odd to call this government speech, because the who gets to sit there is determined by this private entity, albeit one with a coordinating role.

[00:54:22] Speaker 03:
And then they're sitting there, maybe, unless they don't take their seats, and then any first come first serve is sitting there as well.

[00:54:32] Speaker 03:
By then, the person is the president.

[00:54:33] Speaker 03:
This is just an odd construct to call government speech, to call speech at all, let alone government speech.

[00:54:39] Speaker 04:
Putting aside the argument that I know is defending the decision of the district court, characterizing this as government speech, putting that aside for the moment and looking at your argument that there was no content-based discrimination made.

[00:54:56] Speaker 04:
It's a public forum.

[00:54:59] Speaker 04:
explain to us what the government's interest is in the set-aside, generally, but even more particularly, why Freedom Plaza needs to be part of it.

[00:55:14] Speaker 05:
So the government interest overall is, of course, in having an inaugural celebration.

[00:55:19] Speaker 05:
and in having activities associated with that, which includes the inaugural parade.

[00:55:25] Speaker 05:
And of course, this is something that is recognized under the Presidential Inaugural Ceremonies Act.

[00:55:30] Speaker 05:
So there is a congressional statutory recognition of a significant interest in this particular event.

[00:55:36] Speaker 03:
Would you agree that the governmental interest is in allowing, to the extent consistent with conducting this event,

[00:55:44] Speaker 03:
full free speech by the citizens, by the people of the United States, not just the citizens, the people.

[00:55:50] Speaker 05:
There is certainly a government interest in that.

[00:55:51] Speaker 03:
That's part of the government interest.

[00:55:53] Speaker 05:
Absolutely.

[00:55:53] Speaker 05:
And there is ample available space on the Pennsylvania Avenue sidewalks for demonstrators, for members of the public.

[00:56:01] Speaker 05:
Appellants don't even argue otherwise.

[00:56:03] Speaker 04:
And why this space, though, given that it does have a historic resonance for protesters, why this space?

[00:56:11] Speaker 05:
And by this you mean Freedom Plaza, yes.

[00:56:13] Speaker 05:
So, Your Honor, to be clear, Freedom Plaza is not an area that was just designated as an area that was amenable to demonstrations.

[00:56:22] Speaker 05:
It was designated by the Park Service as an area amenable for both demonstrations and events, special events.

[00:56:30] Speaker 05:
The inauguration is a special event.

[00:56:32] Speaker 05:
The reason that Freedom Plaza is given to pick

[00:56:37] Speaker 05:
is one of the reasons is because they put a media stand there.

[00:56:41] Speaker 05:
And the media stand is able to broadcast down Pennsylvania Avenue.

[00:56:44] Speaker 05:
It really is the best view of the inaugural parade, because you can see all the way down to the Capitol.

[00:56:50] Speaker 05:
And this is broadcast, you know, across our country, it is broadcast internationally.

[00:56:54] Speaker 05:
It's how people view the inaugural parade.

[00:56:56] Speaker 04:
So it's a vantage point.

[00:56:57] Speaker 04:
When you say broadcast, you mean they can film, they can see down.

[00:57:00] Speaker 04:
That's correct.

[00:57:00] Speaker 04:
And so the media stands.

[00:57:02] Speaker 04:
It's a raised vantage point, and they get a good view.

[00:57:05] Speaker 04:
They get a long view.

[00:57:06] Speaker 04:
in a prime spot.

[00:57:08] Speaker 05:
Well, that's both for where the media is and then also the bleachers.

[00:57:12] Speaker 05:
That's correct.

[00:57:13] Speaker 05:
This is an area where pick already has been getting accorded some space for its media stand and the bleachers are put there as well.

[00:57:21] Speaker 04:
This is what changed in terms of function and functional appeal of this since the time when it was more shared with protesters.

[00:57:30] Speaker 05:
Well, it is actually traditionally picked bleachers have been on Freedom Plaza.

[00:57:36] Speaker 05:
What happened in 2009 was that.

[00:57:39] Speaker 05:
The Park Service had enacted its regulation in 2008.

[00:57:42] Speaker 05:
And there was some question as to whether or not it could apply to the 2009 inauguration because permits had already been submitted before the regulation became final.

[00:57:53] Speaker 05:
And so the government decided to reach an accommodation with the plaintiffs and accord some of Freedom Plaza to answer.

[00:58:01] Speaker 03:
Well, when you say it's traditionally for pictures, how long is that tradition?

[00:58:05] Speaker 03:
How old is that tradition?

[00:58:06] Speaker 05:
Your Honor, I believe it goes back at least to 1997, that we know of, in terms of the Clinton administration and when there were inaugural breachers there.

[00:58:18] Speaker 05:
And the record is unclear how much further back, and of course, at what point, I mean, bleachers have been along Pennsylvania Avenue, including that area, for a very long time.

[00:58:31] Speaker 03:
But I get that you want bleachers there.

[00:58:34] Speaker 03:
Just having bleachers there would be one governmental interest.

[00:58:36] Speaker 03:
This is a great place for people to watch the parade.

[00:58:39] Speaker 03:
What significant governmental interest?

[00:58:42] Speaker 03:
Let's just even start with significant.

[00:58:44] Speaker 03:
Put aside compelling.

[00:58:45] Speaker 03:
Significant governmental interest is advanced by saying not just that there'll be bleachers there, but that those bleachers have to be under the control of PIC as opposed to open to the public.

[00:58:56] Speaker 03:
What's your significant government interest in that?

[00:58:58] Speaker 05:
Well, there won't be bleachers unless PIC builds them.

[00:59:01] Speaker 05:
The government does not have funds to put up those bleachers.

[00:59:05] Speaker 05:
So there are no bleachers that are built by the government.

[00:59:07] Speaker 03:
The government could say, this is a bleacher area.

[00:59:10] Speaker 03:
First come, first served.

[00:59:11] Speaker 03:
We want this to be seating for all the reasons that you've just said.

[00:59:15] Speaker 03:
But what interest do you have in saying who builds or controls that seating?

[00:59:21] Speaker 05:
Well, I think you have to look at the interest a little bit more broadly, which is that the government has an interest in allowing PIC to have bleachers.

[00:59:28] Speaker 05:
that the Pennsylvania Avenue sidewalks, according to this court in Mahoney, constitute a public forum.

[00:59:34] Speaker 05:
It is not a block-by-block analysis as to should there be bleachers on this block or should there be bleachers on that block.

[00:59:43] Speaker 05:
That's not the kind of micromanaging of the park services allocation of space that the courts have traditionally engaged in, as the Supreme Court noted in the Clark case.

[00:59:53] Speaker 05:
The question is, is it within the zone, within the constitutional zone, visibly within that zone?

[01:00:00] Speaker 01:
Is it part of the government speech?

[01:00:01] Speaker 01:
Your argument that we started with is that not only the parade is government speech, but the people who watch the parade are part of the government speech.

[01:00:13] Speaker 01:
Is it part of the government's, by hypothesis, I'm having trouble following that completely, but by hypothesis, if that's government speech,

[01:00:20] Speaker 01:
then is the selection of the people who sit there and watch the parade, that's part of the government speech?

[01:00:28] Speaker 05:
Well, that's definitely part of the government speech.

[01:00:29] Speaker 01:
And that's very similar, Your Honor, to the speech that the people who are selected engage in.

[01:00:34] Speaker 01:
If they engage in speech at all, because they can just sit there and watch the parade, if they engage in speech at all, you're saying that's government speech too.

[01:00:41] Speaker 05:
That's correct, because the government shows.

[01:00:43] Speaker 01:
And then what about the 10 minute set aside that says that for the last 10 minutes, if nobody's sitting in the seats, then anybody gets to come and occupy the seats?

[01:00:50] Speaker 05:
That's correct.

[01:00:51] Speaker 01:
That's also part of the government speech.

[01:00:53] Speaker 05:
No, the individuals who come and occupy the empty bleachers are not part of government speech because they're not chosen by the government to sit there.

[01:01:01] Speaker 05:
They're simply allowed to come and occupy.

[01:01:02] Speaker 03:
You've chosen a 10-minute rule that says, all are welcome at the 10-minute point.

[01:01:09] Speaker 03:
We embrace you all to come sit here.

[01:01:11] Speaker 03:
Isn't that part of your government speech?

[01:01:14] Speaker 05:
I think the distinction, Your Honor, is because the government is not choosing who those people will be.

[01:01:21] Speaker 01:
I know, but they're choosing not to choose.

[01:01:23] Speaker 01:
The government's choosing not to choose.

[01:01:25] Speaker 04:
They're choosing an open, public, first-come kind of population, inclusive.

[01:01:30] Speaker 05:
That's correct.

[01:01:30] Speaker 05:
And essentially, what is happening is that the government is allowing, in those scenarios, for the public to be a part of the government's speech, because... Well, then the public is part of the government's speech.

[01:01:42] Speaker 01:
That's different from what you just said, right?

[01:01:43] Speaker 05:
Because there's lowly in that scenario where there's empty seats, where there's something available.

[01:01:46] Speaker 04:
That's a very strange argument, Ms.

[01:01:48] Speaker 04:
Braswell.

[01:01:49] Speaker 04:
By hypothesis, if somebody has given a lot of money to the HEC or to the campaign, but has a very strong disagreement with one point,

[01:01:59] Speaker 04:
They love the president-elect on various things, but they have a very strong disagreement at one point.

[01:02:04] Speaker 04:
And that person gets a ticket, and they stand up, and they use that time to put up a sign with that issue that is their bugaboo, with which they don't agree.

[01:02:15] Speaker 05:
That becomes the speech of the government.

[01:02:19] Speaker 05:
The government has allowed that individual to be on that stand.

[01:02:24] Speaker 05:
The message being conveyed may be different, but that's no different than the situation in Pleasant Grove, where the government shows the monuments to put in a city park.

[01:02:35] Speaker 03:
You're focusing on, but see, in Pleasant Grove, they not only make the selection, the speech is both at the making the selection and in maintaining the selection, the government's speech

[01:02:47] Speaker 03:
his government speech throughout now if this is all about selecting that selection is not done by the president well the selection is done by the the pic that is an arm of the president of represent all it's an arm at the selection time when we sell those tickets i'm assuming these tickets are sold before noon on january twentieth that's correct at that point

[01:03:11] Speaker 03:
It's not, I assume President Obama is not gonna sell these seats.

[01:03:16] Speaker 03:
And you will be president until noon on January 20th.

[01:03:19] Speaker 03:
Okay, so the time the selections are made, it's not the president.

[01:03:23] Speaker 05:
But it becomes the president's speech.

[01:03:26] Speaker 03:
But there's two aspects of speech, just as there was assumed.

[01:03:29] Speaker 03:
There's the selection, and there's the maintenance.

[01:03:34] Speaker 03:
And it sounds like it's very different things at the selection stage than what happens actually during the parade.

[01:03:42] Speaker 03:
I don't know how the government can be in control of both of those the way it was in Suman.

[01:03:49] Speaker 05:
Well, I think in Suman, the difference is in terms of the message being conveyed at the time.

[01:03:56] Speaker 05:
The court recognized in Suman that the message being received may not necessarily be the message that the government intended to convey.

[01:04:03] Speaker 05:
A monument may be viewed by individuals in a different way.

[01:04:07] Speaker 03:
This is about conveying.

[01:04:07] Speaker 03:
This is not about receiving.

[01:04:09] Speaker 03:
This is all about conveying.

[01:04:10] Speaker 03:
And I thought your point was that

[01:04:14] Speaker 03:
If one of the people comes in at the 10-minute mark and holds up a sign that says, I'm vehemently opposed to this person being president, that that would still be government speech?

[01:04:25] Speaker 03:
No.

[01:04:26] Speaker 03:
But if the president selects somebody.

[01:04:28] Speaker 04:
No, you said that if it's the supporter who comes in with the one bugaboo and says that, that is government.

[01:04:34] Speaker 04:
Not under the 10 minute rule.

[01:04:36] Speaker 04:
That's what I'm saying.

[01:04:38] Speaker 04:
Let me ask you just something more specifically about the record.

[01:04:42] Speaker 04:
There is an affidavit by ANSUR that asserts that the National Park Service was vetting them and saying, well, what's your plan?

[01:04:54] Speaker 04:
Maybe you can work something out with the PIC.

[01:04:58] Speaker 04:
your viewpoints, what are you going to do?

[01:04:59] Speaker 04:
Is there anything that the, what's your response to that, that that is sort of creating an as applied viewpoint discrimination in the insistence on permit requirement?

[01:05:12] Speaker 05:
Now what happens, Your Honor, with respect to the Park Service's involvement with someone who has sought a permit that is for the area that is set aside for PIC?

[01:05:23] Speaker 05:
The Park Service will ask them what it is they want, but the Park Service can make no representations as to whether or not that property is available until PIC decides whether or not it is going to use the property that has been set aside for it.

[01:05:37] Speaker 05:
So there are often conversations with permit holders or entities seeking a permit that occur during this time period, because it's a fluid process.

[01:05:48] Speaker 05:
I mean, remember, PIC doesn't even come into existence until after the election.

[01:05:53] Speaker 05:
And so then it's not known immediately whether or not PIC is going to want all of the property that has been set aside for it for its event.

[01:06:04] Speaker 05:
we can't emphasize enough that this is a co-sponsored event between PIC and the Park Service.

[01:06:10] Speaker 05:
And so this set aside is for the individuals that they want to have, have some certain seats, be guaranteed seats, and therefore have tickets for those seats.

[01:06:22] Speaker 04:
So you're not contesting that

[01:06:25] Speaker 04:
There was some sort of political vetting for compatibility with the pick message, whatever that might, future pick message that the Park Service was doing in the event that the eventual pick wouldn't need all the space and might be willing to share it.

[01:06:41] Speaker 05:
I don't believe that the evidence shows that the Park Service was doing any political or any vetting as to the position of whether or not the answer or any other demonstrator could be in a particular area.

[01:06:55] Speaker 01:
I thought the allegation was not with respect to the Park Service.

[01:06:57] Speaker 01:
Correct me if I'm wrong.

[01:06:59] Speaker 01:
But I thought the allegation was that the pick.

[01:07:01] Speaker 05:
It was with respect to the pick.

[01:07:03] Speaker 01:
And the PIC indicated, at least in one instance, we don't know what's going to happen the next time, because I suppose that each PIC gets to decide how to allocate the seats the way it wants to.

[01:07:12] Speaker 01:
But this time, the PIC representative at least asked about what the answer was interested in doing.

[01:07:20] Speaker 05:
We do not dispute that.

[01:07:21] Speaker 05:
That's correct.

[01:07:22] Speaker 05:
The PIC did.

[01:07:23] Speaker 05:
But if this court were to conclude that this is- Now, why would PIC ask that?

[01:07:27] Speaker 01:
Because by regulation, this area is set aside for bleachers.

[01:07:32] Speaker 05:
And it's set aside for PIC bleachers, not just bleachers.

[01:07:35] Speaker 01:
But PIC bleachers are bleachers, and so it's set aside for bleachers.

[01:07:39] Speaker 01:
And why is PIC asking questions about what answer would like to do, unless it can't be with respect to doing something other than putting bleachers there?

[01:07:51] Speaker 05:
I think it's with respect to whether or not to sell tickets to members of answer to use the pick bleachers.

[01:07:58] Speaker 05:
And so that's why they're asking.

[01:08:00] Speaker 05:
But of course, when the Park Service enacted this regulation, it's very important to remember that they have no idea how Pick is going to allocate the tickets.

[01:08:09] Speaker 05:
Pick could simply decide that all members of the public are welcome.

[01:08:12] Speaker 05:
We're just going to make the tickets available, and if you can buy them, then you can sit there.

[01:08:16] Speaker 05:
Or Pick could decide, as it did in the Obama administration, we're going to have half of the seats available for our particular friends and family, and half the seats are going to be available to the public.

[01:08:29] Speaker 05:
So this just underscores the fact that when the Park Service enacted this regulation, that there was nothing that was content-based, there was nothing that was viewpoint-based about enacting this set-aside.

[01:08:42] Speaker 05:
It is consistent with the fact that there is a set-aside for the presidential inaugural stand and actually answers

[01:08:49] Speaker 05:
answers position when you are looking at the extent, Your Honor, of what a potential ruling could be would definitely call into question the presidential inaugural stand, because it's much bigger than is needed just for the president.

[01:09:02] Speaker 01:
So I didn't understand this part of your argument, because it seemed like one of your arguments was that because we can't know in advance what filter PIC is going to use, by definition, there's no content of viewpoint discrimination in the regulation.

[01:09:17] Speaker 02:
That's correct.

[01:09:18] Speaker 01:
But let's just suppose that PIC is just an arm of the government.

[01:09:24] Speaker 01:
Let's just suppose that, because that's your own argument, actually.

[01:09:26] Speaker 01:
And if it turns out that PIC is using an ideological filter, every single time they're using an ideological filter, all right?

[01:09:36] Speaker 01:
Your argument is that as long as we don't know when the regulations adopted ex ante, that it's going to be an ideological filter every time, the fact that an arm of the government uses an ideological filter every time makes it non viewpoint based.

[01:09:49] Speaker 05:
At the time the regulation was enacted, that's correct because we don't know that they will do that.

[01:09:54] Speaker 01:
And then what about the actual use of an ideological filter?

[01:09:57] Speaker 05:
But then it comes back to the government being allowed to set aside property for its own particular event.

[01:10:03] Speaker 05:
And this court has held repeatedly that the government can do it, including your Honor in Bowling.

[01:10:07] Speaker 01:
So if you had a regulation that said the national mall, protests on the national mall are going to be handed out on an application basis by the National Mall Protest Advisory Committee.

[01:10:20] Speaker 01:
And the National Mall Protest Advisory Committee of every administration decides whether to hand out a permit based purely on ideology.

[01:10:27] Speaker 01:
It's only giving out protest permits for, or demonstration permits for demonstrations that are sympathetic to that administration.

[01:10:35] Speaker 01:
It can't be that there's no First Amendment problem with that, right?

[01:10:38] Speaker 05:
No, there would be.

[01:10:39] Speaker 05:
But that's so different than this scenario.

[01:10:40] Speaker 01:
And what's the difference?

[01:10:41] Speaker 01:
Why?

[01:10:41] Speaker 01:
What's the difference?

[01:10:42] Speaker 05:
Because this scenario is a national celebration event.

[01:10:46] Speaker 05:
So it is a recurring park service co-sponsored event.

[01:10:50] Speaker 05:
which this court has said the Park Service is entitled to have a set aside of its own land for the event.

[01:10:57] Speaker 05:
Even in Mahoney, with respect to the inauguration day, this court recognized that the government can set aside some portion of the Pennsylvania Avenue sidewalks for its event.

[01:11:08] Speaker 05:
The problem in Mahoney was that the government took all of the Pennsylvania Avenue sidewalks.

[01:11:13] Speaker 05:
And this court said, in effect, that's too much.

[01:11:15] Speaker 05:
You can't have all of it.

[01:11:17] Speaker 01:
But this court has recognized, even with respect... Why can't the government, if it's government speech, why can't the government have all of it?

[01:11:23] Speaker 01:
Because this court held that the government could... No, but that's the question, because that case seems somewhat in tension with the proposition that even the allocation of spectators is government speech.

[01:11:36] Speaker 01:
Because if it was government speech, I thought the lesson of Summum and Walker is that when it's government speech, the government gets to do what it wants.

[01:11:45] Speaker 05:
Well, I think the lesson actually is that it has to be, there are obviously reasonable boundaries.

[01:11:50] Speaker 01:
I think that's... Well, I don't know where is that in the cases.

[01:11:55] Speaker 05:
If it's government speech... Well, it's in the Mahoney case.

[01:11:57] Speaker 05:
It's in the Mahoney case.

[01:11:58] Speaker 01:
But Mahoney doesn't say anything about it being government speech.

[01:12:01] Speaker 05:
Well, but Mahoney does say that the government can set aside portions of its property for its own use.

[01:12:06] Speaker 01:
I know, but the question is whether Mahoney's operating on assumption that this is government speech at all, or is it saying that when it's not government speech, when the government's regulating private speech, we know that, that's public forum doctrine, that when the government's regulating private speech, if it's doing it on a content neutral basis, then there's reasonable distinctions that the government can draw.

[01:12:25] Speaker 01:
Right.

[01:12:26] Speaker 01:
But Mahoney is not a government speech case.

[01:12:29] Speaker 05:
Well, Mahoney certainly is a case involving the government setting aside property for its own use.

[01:12:36] Speaker 05:
Whether you call it government speech, whether you call it a government event.

[01:12:39] Speaker 03:
Did the Park Service argue government speech in Mahoney?

[01:12:41] Speaker 03:
I'm sorry?

[01:12:42] Speaker 03:
Did the Park Service argue that it was government speech in Mahoney?

[01:12:45] Speaker 05:
The Park Service, I do not remember if those specific words were used.

[01:12:50] Speaker 05:
I do know, Your Honor, that the government argued that the government was entitled to set aside

[01:12:55] Speaker 05:
the Pennsylvania Avenue sidewalks under permit to pick.

[01:12:58] Speaker 03:
Mahoney might predate a recognition of governmental speech by the Supreme Court.

[01:13:02] Speaker 03:
So I'm betting it wasn't argued there.

[01:13:04] Speaker 03:
So I just don't think that.

[01:13:05] Speaker 05:
It wasn't argued certainly, obviously, because Pleasant Grove and Walker had not been decided back then, Your Honor.

[01:13:11] Speaker 05:
But I think going back to a Quaker action, the government has argued since then that it is entitled to use some of its property for its own particular purpose.

[01:13:20] Speaker 05:
And I think here,

[01:13:22] Speaker 05:
And I think here the set aside is limited.

[01:13:25] Speaker 05:
I think it's important to look at the fact that the government limited the amount of property that's been set aside for pick.

[01:13:32] Speaker 05:
that there are ample alternative avenues of communication open to demonstrators available to the public.

[01:13:39] Speaker 05:
Answer does not even argue that there are not ample alternatives available.

[01:13:43] Speaker 05:
And when it comes to Freedom Plaza, I know my time is up if I can just say, make one more point.

[01:13:49] Speaker 05:
When it comes to Freedom Plaza, there is nothing unique about Freedom Plaza that says that it must be given to demonstrators and that the government may not use it

[01:13:58] Speaker 01:
For its own event that is in which was a government speech case that the venue at issue is a park.

[01:14:07] Speaker 01:
And there was no analysis as far as I can remember about ample alternative avenues.

[01:14:12] Speaker 01:
I'm sorry there was like there was no analysis as far as I can remember about ample alternative avenues or was there.

[01:14:17] Speaker 05:
No one else in no analysis.

[01:14:20] Speaker 01:
Sorry.

[01:14:20] Speaker 05:
Oh, no analysis.

[01:14:21] Speaker 05:
Well, we did the analysis and we said there are ample alternative avenues Are you talking just within Freedom Plaza or?

[01:14:27] Speaker 05:
In the other cases in the Pleasant Grove case in the Pleasant Grove case

[01:14:33] Speaker 05:
Actually, I believe there was, Your Honor.

[01:14:35] Speaker 05:
In Pleasant Grove, they talked about the fact that these monuments were in a city park and that there was lots of other places within that city park that individuals could be to engage in First Amendment activities.

[01:14:47] Speaker 01:
But with respect to the site, the government speech was the site of the monument itself, right?

[01:14:53] Speaker 05:
That's correct.

[01:14:54] Speaker 01:
And with respect to that, there wasn't – because it was government speech, you don't have to ask about alternative avenues with respect to the government speech part of it.

[01:15:03] Speaker 05:
Well, I think that's true, except that I would submit that Mahoney does, in fact, say that at some point, the government's speech could become unreasonable.

[01:15:13] Speaker 05:
But that is not the case here.

[01:15:15] Speaker 05:
And I think when the court looks at the Park Service.

[01:15:17] Speaker 03:
Why doesn't the settlement for the 2009 inauguration, why doesn't that just show that the lines that are being drawn here by the regulation are not

[01:15:31] Speaker 03:
narrowly tailored for purposes of an intermediate scrutiny task, that you're burdening more speech than is necessary.

[01:15:36] Speaker 03:
Doesn't that just prove that you burden more speech than is necessary?

[01:15:39] Speaker 05:
No, it doesn't, Your Honor, because the forum, as this Court noted in the Mahoney case, are the Pennsylvania Avenue sidewalks as a whole, not a block-by-block basis.

[01:15:48] Speaker 03:
So, when you look at the Pennsylvania... But surely reasonable analysis.

[01:15:52] Speaker 03:
Look, if the pick were to be allowed everything that's an unobstructed view of the parade, and then everything on Pennsylvania Avenue that's either obstructive or removed back from the street, so further away from the actual parade itself, we'll leave that for everybody else.

[01:16:11] Speaker 03:
That would be a problem, right?

[01:16:12] Speaker 05:
That's what this court normally said it was.

[01:16:14] Speaker 03:
So we wouldn't look at Pennsylvania Avenue as a whole and say, hey, you've got 50% of it.

[01:16:18] Speaker 03:
It's the cheap seats version of Pennsylvania Avenue, but you get that.

[01:16:25] Speaker 03:
We do at some level.

[01:16:27] Speaker 03:
At some level, we have to look at how different vantage points, different opportunities to express speech are allocated, don't we?

[01:16:35] Speaker 05:
I do, but I think the level that you look at is not a block by block basis.

[01:16:39] Speaker 03:
But you also disagree that it's not Pennsylvania Avenue as a whole.

[01:16:43] Speaker 05:
I know, I think it is Pennsylvania Avenue sidewalks as a whole.

[01:16:45] Speaker 03:
I thought you just agreed that if there's the lousy parts and the good parts and all the good parts are kept for pick and all the lousy parts are for protesters, although they are both along Pennsylvania Avenue, you would say we can't do that.

[01:16:58] Speaker 03:
We have to look at allocation.

[01:17:01] Speaker 05:
Then you look at Pennsylvania Avenue sidewalks, look at the frontage land.

[01:17:05] Speaker 05:
That's the public forum.

[01:17:07] Speaker 05:
I agree with you that you can't say if you put

[01:17:09] Speaker 05:
protesters behind bleachers, but they're on Pennsylvania Avenue sidewalks, that that's not a consideration the court should look at.

[01:17:17] Speaker 05:
But if you look at the Pennsylvania Avenue sidewalks, the part that abuts the street,

[01:17:24] Speaker 05:
that entire area should be your forum, not on a block-by-block basis, but that whole area.

[01:17:30] Speaker 05:
And when you look at that whole area, there are ample prime alternatives for answer, including John Marshall Park, where it was in 2005 and proclaimed a big success.

[01:17:39] Speaker 03:
Well, what if a pick in this case, they mention, you know, based on who the president is, what's prime might change.

[01:17:45] Speaker 03:
What if, in this case, the pick said, we'd also like to take the space in front of the Trump hotel?

[01:17:51] Speaker 05:
Well, that may or may not become an issue when we look into who has jurisdiction over that and what the availability is.

[01:17:58] Speaker 03:
What do you mean who has jurisdiction?

[01:17:59] Speaker 03:
Is that not part of the parade route over which – the sidewalks along the parade route over which you have jurisdiction?

[01:18:06] Speaker 05:
Your Honor, to the extent I know so far, there's a plaza area near the Trump Hotel, which is actually under lease, my understanding is, to the Trump Hotel.

[01:18:16] Speaker 05:
There's a sidewalk right in front of it.

[01:18:17] Speaker 05:
So the sidewalks, to my knowledge, are available, except I'd have to look at the map to see whether or not that is one of the areas where there is a pick bleacher, because the maps show you that all along Pennsylvania Avenue, there are some areas that have been denoted for pick bleachers.

[01:18:35] Speaker 05:
But in terms of looking at the presidential motorcade coming up Pennsylvania Avenue, as long as you are on Pennsylvania Avenue and can see you're near the street, you have a prime view.

[01:18:47] Speaker 05:
Indeed, the answer said in 2005 at John Marshall Park that they were the first thing

[01:18:53] Speaker 05:
that President Bush saw when he turned onto Pennsylvania Avenue in his motorcade.

[01:18:58] Speaker 05:
It's clearly a prime spot.

[01:19:00] Speaker 01:
When Murphy talks about the use of the entire Pennsylvania Avenue, I take it that it's applying forum analysis?

[01:19:08] Speaker 01:
It's applying that part of forum analysis that asks about availability of alternative avenues?

[01:19:12] Speaker 05:
In the Mahoney case?

[01:19:13] Speaker 05:
In the Mahoney case, yes, Your Honor.

[01:19:15] Speaker 01:
And then in Suma, the Court just says public forum analysis just doesn't apply because this is government speech.

[01:19:22] Speaker 05:
It doesn't apply with respect to the government speech.

[01:19:25] Speaker 05:
That's correct.

[01:19:26] Speaker 01:
So I just, I'm still, I don't understand.

[01:19:28] Speaker 01:
I could understand if your argument were, and I think your fallback argument is, that even if this is not government speech and it's a regulation of private speech on a content neutral basis, well then we look at alternative avenues and the fact that this is using 14 percent is a consideration we take into account.

[01:19:44] Speaker 05:
Correct.

[01:19:44] Speaker 01:
But if it's government speech,

[01:19:46] Speaker 01:
Summum tells us we don't do forum analysis when we're in the land of government speech.

[01:19:51] Speaker 01:
Why are we talking about alternative avenues?

[01:19:54] Speaker 05:
Well, I think I was just answering the question that I believe asked for, where could the public go when you have the pick bleachers?

[01:20:04] Speaker 01:
That's a factual question.

[01:20:05] Speaker 05:
Yes.

[01:20:05] Speaker 05:
That was what I was trying to address, Your Honor.

[01:20:08] Speaker 05:
But with respect to government speech, what Suman says is that, and Walker, is that you don't look at the issue of whether it's content-based or viewpoint-based.

[01:20:18] Speaker 05:
When it's government speech, the government is entitled to speak.

[01:20:22] Speaker 05:
And again, here, if you look at the regulation, the Park Service dealt with First Amendment rights with scrupulous care to ensure that a limited area was set aside for the organization and the Park Service that are hosting this event and that, in fact, demonstrators and members of the public have ample prime opportunities along Pennsylvania Avenue during the inauguration celebration.

[01:20:51] Speaker 05:
Thank you very much.

[01:20:57] Speaker 01:
We'll give you three minutes for rebuttal.

[01:20:59] Speaker 02:
Thank you.

[01:21:01] Speaker 02:
In terms of the analysis of Freedom Plaza versus the sidewalks, we do believe the analysis of Freedom Plaza is a discrete analysis, that it has to be evaluated distinctly from the sidewalks because it is a unique site, because of its dedication, purpose, function.

[01:21:17] Speaker 02:
The question with regard to the Trump Hotel, in fact, that space in front is set aside, though,

[01:21:23] Speaker 02:
as a pick-bleacher area, so it's reserved as an exclusive use area in the Trump Hotel.

[01:21:27] Speaker 02:
But Freedom Plaza is unique.

[01:21:30] Speaker 02:
It is distinct from the sidewalks.

[01:21:32] Speaker 02:
The government asserts that the setting up of a media stand is at issue as its interest, but the media stand is not being challenged.

[01:21:40] Speaker 02:
The media stand is on the eastern portion of the plaza.

[01:21:43] Speaker 02:
It has the full view.

[01:21:44] Speaker 02:
What's being challenged is... Why wouldn't it be challenged?

[01:21:46] Speaker 03:
The press has no more free speech rights than your clients.

[01:21:49] Speaker 02:
As a facilitative function, it wasn't what the anti-coalition put in a permit for.

[01:21:55] Speaker 03:
But it could be challenged on the same basis by somebody else.

[01:21:58] Speaker 02:
I think that there are different issues when it comes to facilitative setting up media stands or announcer stands or Armed Forces Inaugural Committee stands that are distinct from the spaces that are open to spectators.

[01:22:14] Speaker 02:
And those areas that are open to spectators, can they be set aside on a viewpoint basis?

[01:22:19] Speaker 03:
Who decides whether there will be a media stand there?

[01:22:21] Speaker 03:
Is that the Armed Forces Inaugural Committee or is that PIC?

[01:22:24] Speaker 02:
It's written into the regulations that that is a media stand, as a distinct element is.

[01:22:28] Speaker 03:
Yeah, but you're challenging.

[01:22:29] Speaker 03:
Pardon me?

[01:22:29] Speaker 03:
You're challenging those set-asides, some of the set-asides.

[01:22:31] Speaker 02:
Not those set-asides.

[01:22:32] Speaker 02:
We're challenging only.

[01:22:33] Speaker 03:
I understand you're challenging an aspect.

[01:22:35] Speaker 03:
I mean, the fact that it's in the regulations is no answer.

[01:22:37] Speaker 02:
We're not striking all, we're not asking the court to strike all the regulations.

[01:22:40] Speaker 03:
It's no answer to the Constitution that it's in the regulations.

[01:22:42] Speaker 03:
So who decides, so they've decided, but could.

[01:22:47] Speaker 03:
Could that be challenged on the First Amendment?

[01:22:50] Speaker 02:
The part that we're challenged is to pick bleacher areas that are.

[01:22:53] Speaker 01:
No, but I think the question is, why couldn't you make the same challenge?

[01:22:56] Speaker 01:
Because it's also in the regulation.

[01:22:58] Speaker 01:
There's a regulation that says there are certain parts that are cordoned off as bleacher areas.

[01:23:03] Speaker 01:
There's other parts that are cordoned off as media areas.

[01:23:05] Speaker 01:
The same challenge you're making to the bleacher areas, I get that you didn't make the challenge.

[01:23:10] Speaker 01:
But as a matter of conceptual reality and as a matter of theory, the same challenge could be raised with respect to the media areas.

[01:23:16] Speaker 02:
I think if there was a challenge raised with respect to the media areas, it would have a different analysis than the analysis when it comes to the spaces that are being made available for spectator space on a viewpoint basis.

[01:23:28] Speaker 02:
And I wanted to give Your Honor the record citations that were requested.

[01:23:33] Speaker 02:
And the joint appendix

[01:23:38] Speaker 02:
440 through 443 discusses the PIC officials meeting with answer, and they weren't talking about who could get bleacher seats.

[01:23:49] Speaker 02:
They asked them about their goals, their messaging, their outreach, how they organize their political views.

[01:23:54] Speaker 02:
With regard to the ticketing and the set-aside, the appendix at 680, 682, 677,

[01:24:04] Speaker 02:
and 676 goes through the ticketing process where they are set aside for funders and supporters.

[01:24:16] Speaker 02:
And I would note, too, that on the issue of the PIC and the government's support of the

[01:24:25] Speaker 02:
facilitation of the PIC.

[01:24:27] Speaker 02:
The Department of Defense also, at one point in time, the Comptroller General found no legal basis for the Department of Defense to participate and support the PIC's balls and celebration events because they were considered private gatherings or parties, and that the proceeds go to the private non-governmental PIC, which is on page 52 of our

[01:24:47] Speaker 02:
opening brief.

[01:24:49] Speaker 02:
So throughout there was this acknowledgement that the PIC is a private partisan fundraising entity.

[01:24:55] Speaker 02:
And so setting aside these exclusive spaces for a private partisan fundraising entity makes the distinction between whether or not it is an open space or a space that's allocated on a neutral basis.

[01:25:09] Speaker 02:
The government did

[01:25:12] Speaker 02:
With regard to Your Honor's questions about the government speech analysis, it is correct that the government has introduced the government speech doctrine, which would say that the free speech clause is not implicated, does not apply here.

[01:25:23] Speaker 02:
And they've done so only for the first time before this court, with Mahoney and in the ensuing years after the government speech doctrine became more present.

[01:25:31] Speaker 02:
They have never introduced or argued the government speech doctrine in this case.

[01:25:34] Speaker 02:
They did not provide supplemental authority even after Walker came out in this court.

[01:25:38] Speaker 02:
So this is the first time that

[01:25:40] Speaker 02:
That presentation has been made.

[01:25:44] Speaker 01:
Thank you, Council.

[01:25:45] Speaker 01:
Cases submitted.