[00:00:02] Speaker 00: Case number 12-7139 at L. Act now to stop war and end racism. [00:00:07] Speaker 00: Coalition at L versus District of Columbia appellant. [00:00:10] Speaker 00: Mr. Schifeli for the appellant. [00:00:12] Speaker 00: Mr. Vanderheet Dean Hiller for the appellees. [00:00:51] Speaker 04: good morning good morning council for repellent before you start I just want to make one statement for the record on pages three and four of your brief you refer to the [00:01:20] Speaker 04: Corporation Council, at the relevant date you're discussing, was a male. [00:01:26] Speaker 01: Oh, well, I apologize. [00:01:29] Speaker 04: You're talking about Lou Robbins' opinion. [00:01:30] Speaker 04: He was a male. [00:01:31] Speaker 01: OK. [00:01:33] Speaker 01: Thank you, Your Honor. [00:01:36] Speaker 01: Good morning. [00:01:36] Speaker 01: May it please the Court of Courtship for the District of Columbia? [00:01:39] Speaker 01: I would like to save five minutes, if I could, for rebuttal and response. [00:01:44] Speaker 01: This court should reverse the summary judgment and sanctions rulings against the district first. [00:01:50] Speaker 01: Massive is law standing because in light of the closure announcement, it has not shown that it continues to exist and still has a concrete, incredible intent to poster in violation of the regulations. [00:02:03] Speaker 01: Alternatively, the regulations do survive First Amendment challenge because the vibrational limit on event-related signs is narrowly tailored, content-neutral, and serves the interest in preventing litter and blight caused by the medium of postering. [00:02:22] Speaker 01: In addition, it survives the Fifth Amendment challenge. [00:02:27] Speaker 01: First Massive has not shown that it intends to engage in conduct which would give rise to a vagueness concern. [00:02:34] Speaker 01: And in any event, the regulations are sufficiently clear about what is prohibited. [00:02:40] Speaker 01: And the sanctions order should also be reversed because the district's discovery requests were consistent with the rules of civil procedure and a reasonable reading of the court's scheduling order. [00:02:51] Speaker 03: Mr. Schifferle, why is Imam Ray's affidavit not adequate to respond to the news article that you found and put in the record regarding the existence or not of Massif? [00:03:07] Speaker 01: Because, first of all, it is massive's burden to establish standing, and it would have to do so through evidence, and conclusory affirmations, these sort of vague speculative someday intentions are not sufficient to establish standing. [00:03:21] Speaker 01: We do have the context here of massive announcing that it was – that it had closed in the final email to supporters. [00:03:28] Speaker 01: In light of that, [00:03:29] Speaker 01: And all of that, Massive had to come forward with something more specific than the conclusory statements in that affidavit. [00:03:37] Speaker 01: It doesn't dispute. [00:03:38] Speaker 04: Well, we often, in these standing areas, rely on these affidavits. [00:03:45] Speaker 04: And this October 2013 affidavit is quite specific and says, very specifically, [00:03:57] Speaker 04: that there is this organization and they intend to poster and then they have an example after the injunction went into effect of actually putting a poster on a lamppost, they put a picture in the record, and I wonder, you say they haven't proven, what more would they have to prove? [00:04:18] Speaker 04: Because they say, you know, the website email you rely on on its face shows that [00:04:23] Speaker 04: That was incorrect. [00:04:26] Speaker 01: Well, there are a lot of points there. [00:04:27] Speaker 01: First, I would note that there is nothing in the affidavit that indicates that Mr. Bray has the authority to speak for Massif, that he holds a particular position within the organization or he's been authorized to speak or buy Massif. [00:04:42] Speaker 03: Although you never call that into question, the article that you rely on identifies him as the leader of the organization. [00:04:48] Speaker 01: At that time, but I think it's clear in light of the affidavit that he does not hold that position any longer. [00:04:53] Speaker 01: At least it hasn't been asserted that he did. [00:04:54] Speaker 01: The organization looks, at least that's what the organization itself. [00:04:59] Speaker 03: Well, those are two very different things to say that he's no longer the head of it. [00:05:05] Speaker 03: I don't think there's anything that you've proposed calling that into question. [00:05:11] Speaker 01: that he is the head of it? [00:05:12] Speaker 03: Yeah, what calls that into question? [00:05:15] Speaker 01: Because he doesn't identify himself in the affidavit subsequent. [00:05:18] Speaker 03: But you haven't called that into question, so do you have to, I mean, if I'm representing the Sierra Club in litigation and you come in the Court of Appeals and say, you don't exist anymore, prove it, and they haven't proved it in the District Court, do they have a burden to prove it? [00:05:33] Speaker 03: I mean, it's only if [00:05:35] Speaker 03: you've done something that actually calls that aspect into question. [00:05:38] Speaker 03: Otherwise, proving standing is a huge undertaking. [00:05:42] Speaker 03: And you have called into question, I gather, the existence, and that's directly addressed in this. [00:05:47] Speaker 03: Massive has been an incorporated nonprofit association engaged in nonprofit civil rights at all times, and there have always been two or more persons, says the affidavit. [00:05:59] Speaker 03: So addressing the thing that you raised, the question that you raised does seem to respond. [00:06:04] Speaker 01: But we do have the closure announcement, massive announcement disclosure. [00:06:08] Speaker 01: I'll point out the affidavit doesn't dispute the reason given for the closure, and that was the massive didn't have the resources to continue its advocacy work. [00:06:17] Speaker 01: There was no real retraction. [00:06:18] Speaker 01: There's a reader comment posted to the article, and there's this other unspecified announcement two months later that only cites the litigation as the [00:06:28] Speaker 01: the rationale or the reason that Massive continues to exist. [00:06:31] Speaker 01: I don't think that's sufficient. [00:06:32] Speaker 01: We don't even have basic information. [00:06:34] Speaker 01: Who directs, who manages this organization? [00:06:37] Speaker 04: Well, we don't get that about the Sierra Club either, but paragraph three of this October 2013, why isn't that sufficient? [00:06:49] Speaker 04: In other words, isn't that saying nothing's changed? [00:06:53] Speaker 01: Just one second, ma'am. [00:07:05] Speaker 01: Yes, I mean, it does state that it's an unincorporated nonprofit association, that it's continued to exist. [00:07:14] Speaker 01: But what are the specifics to support that in light of the closure announcement? [00:07:19] Speaker 01: What? [00:07:19] Speaker 03: Well, the specifics are, I think DC law is, and you don't really tell us what the benchmark should be, but DC laws on unincorporated nonprofits is pretty minimal. [00:07:29] Speaker 03: And it says you have to have two or more persons. [00:07:32] Speaker 03: And the next paragraph alleges, [00:07:35] Speaker 03: Two or more persons. [00:07:38] Speaker 01: Well, it doesn't identify who that other person might be. [00:07:41] Speaker 01: It doesn't. [00:07:41] Speaker 03: Do you doubt that there are two or more persons? [00:07:44] Speaker 03: And on what basis? [00:07:47] Speaker 01: Well, because there was the closure announcement. [00:07:49] Speaker 03: They're denying it. [00:07:51] Speaker 03: Then the closure announcement also wasn't by someone in authority, was it? [00:07:54] Speaker 03: It wasn't by the head of the organization. [00:07:57] Speaker 01: Well, we don't really have an explanation. [00:07:59] Speaker 01: I mean, there's just the conclusory assertion it was a departing staff member without authorization. [00:08:04] Speaker 01: No detail, no explanation. [00:08:07] Speaker 01: And so even assuming, even assuming the massive has put forward sufficient evidence to establish its standing, there's still the question of whether it has ultimately proven that on the merits, and so that [00:08:20] Speaker 01: would require a remand for additional fact finding the district hasn't even had an opportunity to take discovery additional fact finding on what uh regarding these issues uh there are a lot of these issues didn't tell me one more thing than i had before i asked the question [00:08:37] Speaker 01: Yeah, sorry, Your Honor. [00:08:38] Speaker 01: So the nature of the closure, what exactly happened, how did it reform or continue to exist, who manages it now, who directs it now? [00:08:51] Speaker 02: I understand that it's not very uncommon for us to send back the standing questions for the development, but you're asking for what sounds like more than what we usually expect to get in standing [00:09:07] Speaker 01: I understand that, Your Honor, but it is the fact that there was this closure announcement. [00:09:12] Speaker 01: It wasn't even disclosed at the time to the parties, to the court. [00:09:16] Speaker 01: We only happened to discover it upon appeal when we weren't in a position to sort of test. [00:09:22] Speaker 04: All right. [00:09:22] Speaker 04: Paragraph 12 of this October 2013 affidavit addresses this directly. [00:09:32] Speaker 01: Yes, Your Honor, but that was the point I was making before. [00:09:35] Speaker 04: And it says on the face of the announcement on which you're relying, it contains evidence of such correction. [00:09:45] Speaker 01: Well, as I said, that was the reader comment. [00:09:47] Speaker 01: It's not verified who this person is, that this person has authority to speak for massive. [00:09:55] Speaker 03: But he's essentially adopting that. [00:10:00] Speaker 01: Well, I don't think it's sufficiently clear. [00:10:03] Speaker 01: The plaintiff has the burden. [00:10:08] Speaker 01: I don't think they've met that burden. [00:10:09] Speaker 01: Even if there were sufficient evidence, I think it still has to be tested for the district to have an opportunity. [00:10:15] Speaker 03: I mean, it's a tricky area because, of course, the plaintiff does have the burden. [00:10:20] Speaker 03: We don't dispute that. [00:10:22] Speaker 03: And because it's subject matter jurisdiction, we have to be sure of it at every stage. [00:10:27] Speaker 03: But there's also this flip side where if you raise something on appeal and you raise it based on something that doesn't have the kinds of indicia of credibility that you're demanding of the plaintiff, you found an article on the internet that appears to be highly disputed and you're saying, well, that's enough to create a new burden on issues that they never thought were in [00:10:53] Speaker 03: And so, I mean, do you see the issue for us that if we say that's enough, then a plaintiff who's trying to keep up with its burden to prove as a factual matter that it has standing will have to do all kinds of anticipatory, well, look, here are our bylaws, and we're gonna keep you up to date at every minute that we're not going out of business, and let us tell you who the people are, and this is our governance strategy. [00:11:21] Speaker 03: It's not called into question. [00:11:23] Speaker 03: question. [00:11:24] Speaker 03: It seems a little irregular. [00:11:26] Speaker 01: I understand your point entirely, Your Honor. [00:11:27] Speaker 01: I mean, our intent is not to demand sort of an unnecessary burden on the plaintiff, but I think what is required is more than what is shown here, or at the very least allow the district to test the veracity of these claims through discovery, through an opportunity which it did not have in the district court. [00:11:44] Speaker 02: You mentioned the word discovery. [00:11:45] Speaker 02: Are we pretty well through with this particular part of the subject? [00:11:48] Speaker 02: I asked my colleague if I can move to the question of the sanctions. [00:11:55] Speaker 02: Were you not in the initial discussion of sanctions with the court of the position that you didn't need discovery, or did I misunderstand the record? [00:12:05] Speaker 01: The district's first position was that there was no need for discovery by other party. [00:12:10] Speaker 01: Alternatively, if the court were to allow discovery, the district's proposed scheduling order did request discovery by each party. [00:12:17] Speaker 02: Now the order of the issue did not provide for discovery by the district, right? [00:12:23] Speaker 01: It did not expressly allow it, that's correct. [00:12:27] Speaker 02: But it's our position that express... Your position would be that in the absence of a provision in the order on discovery, the rule would be the default position, you would then have to time allow the rule. [00:12:39] Speaker 01: Right, because the rules do not require express authorization to take discovery. [00:12:43] Speaker 01: They expressly permit it even without a computer. [00:12:45] Speaker 02: I'm just making sure I fully understand the position of the party. [00:12:47] Speaker 01: Okay, thank you. [00:12:49] Speaker 02: So... [00:12:52] Speaker 02: I'm sorry? [00:12:52] Speaker 01: What was the sanction that you're appealing? [00:12:54] Speaker 01: It was about $15,000 fee award. [00:12:57] Speaker 01: And so to address further the issue of the sanctions, yes, even under the court's own interpretation of its scheduling order, it was not an express prohibition on the district. [00:13:09] Speaker 04: So the district court says these scheduling orders, there's a purpose to them. [00:13:16] Speaker 04: The district submitted a report that, taken in context, [00:13:21] Speaker 04: There was nothing for the district to discover, but there were things for the plaintiffs to discover. [00:13:29] Speaker 04: And as I read the district court's two opinions, the initial order and then the denial of your motion to reconsideration, it viewed the notion that you could view its order on discovery out of context was [00:13:52] Speaker 04: virtually ridiculous, that the parties had submitted the report to the district court. [00:13:59] Speaker 04: The district had taken the position it didn't need discovery. [00:14:03] Speaker 04: The plaintiff said they wanted this particular discovery, and the district court granted the plaintiffs that discovery. [00:14:08] Speaker 04: And that's the context in which the sanction occurred, and that the district could have clarified the matter by asking the court [00:14:20] Speaker 04: in writing, does this mean that the district may not proceed with discovery? [00:14:26] Speaker 04: And the rationale, as I understand it, is that your position would undercut the purpose of the rule establishing this order in which the case is to proceed henceforth. [00:14:47] Speaker 01: Well, on several points, the district did say not a party should have discovery, but if discovery was to be allowed. [00:14:55] Speaker 01: The district reserved the right to take discovery. [00:14:57] Speaker 01: There's no claim that the district waived the right to take discovery. [00:15:00] Speaker 01: The plaintiff never asked that the district be precluded from taking discovery. [00:15:07] Speaker 01: There's no dispute that the discovery requests that the district made were relevant and proper. [00:15:12] Speaker 01: That is, they went to relevant. [00:15:14] Speaker 02: That is. [00:15:17] Speaker 02: order that didn't provide for your discovery by the district came after the parties in court suggested and stated the district didn't need discovery, right? [00:15:28] Speaker 01: Well, yes, Your Honor, but again, the district's position was that neither party needed discovery. [00:15:33] Speaker 01: But if the court was going to allow discovery, then the district request in the proposed scheduling order that each party be permitted to take discovery. [00:15:40] Speaker 02: Well, did you raise that position with the district court upon the issuance of the order that didn't give you discovery? [00:15:47] Speaker 02: You attempted to take discovery later, right? [00:15:52] Speaker 01: Right, because it was our reading of the scheduling order that we were permitted to take discovery. [00:15:57] Speaker 01: It didn't expressly preclude the district's right to take discovery. [00:16:00] Speaker 01: I would point out that sanctions are not authorized unless the order is unambiguous or the district's position was substantially unjustified. [00:16:08] Speaker 01: Even assuming that we're wrong in the reading of the scheduling order, sanctions wouldn't be warranted. [00:16:13] Speaker 01: As I said, if the district's reading was a reasonable one, the order was not unambiguous. [00:16:20] Speaker 01: for the reasons that I've stated, that that standard's not met here. [00:16:26] Speaker 01: I would like to move on to the merits then, if the score would like, regarding the First Amendment claim. [00:16:35] Speaker 01: The regulation is content neutral. [00:16:38] Speaker 01: It does not discriminate based on topic or subject matter. [00:16:43] Speaker 01: It is just like a time restriction for oral speech that would be subject to intermediate scrutiny. [00:16:50] Speaker 01: And as Justice Alito's concurring opinion in Reed states, that the time restrictions on signs advertising a one-time event are content neutral for those reasons. [00:17:02] Speaker 04: Well, let me ask you, just looking at the majority opinion, the language is pretty unyielding until the court comes to its discussion of Vincent. [00:17:31] Speaker 04: And where the majority is saying, and this is part four of the opinion in read, that it says the town has ample content neutral options. [00:17:48] Speaker 04: And it cites Vincent for the proposition that on public property, the town may [00:17:58] Speaker 04: go a long way toward entirely forbidding the posting of signs, so long as it does so in an even-handed, content-neutral manner, citing Vincent. [00:18:08] Speaker 04: And then when you look at Vincent, it's talking about a total prohibition against temporary signs on public property, where there had been this traditional determination about safety and aesthetics. [00:18:28] Speaker 04: We don't have that here, do we? [00:18:29] Speaker 04: And is that why you're seeking a remand? [00:18:35] Speaker 04: You say if strict scrutiny is to apply, and you're arguing that you have met strict scrutiny here. [00:18:45] Speaker 01: Right, if the test is strict scrutiny, yeah, we have asked for a remand in order to be able to make that case for strict scrutiny, but it's our position that there is no remand required because the test is intermediate scrutiny and this court can reverse on that basis. [00:19:01] Speaker 04: So what weight do we give to Justice Alito's concurring opinion? [00:19:08] Speaker 04: Only two justices joined him. [00:19:12] Speaker 01: Right, but Justice Alito and the other two were three of the six in the majority opinion. [00:19:16] Speaker 01: And Justice Alito's concurrence is not taking a separate position from the majority. [00:19:21] Speaker 01: The language, I think, of that opinion makes clear it's just explaining the majority opinion. [00:19:27] Speaker 01: It's not taking any different position than the majority. [00:19:30] Speaker 04: I understand, but when you look at the majority opinion, at some points it seems to give what you're saying, and then it takes away what you're saying. [00:19:41] Speaker 01: Yeah, well, I would point out the nature of the sign code in that case. [00:19:50] Speaker 01: It was far more content-based, obviously content-based. [00:19:56] Speaker 01: Looking at the district's particular regulation, it is nothing like the sign code that was invalidated in Reed. [00:20:04] Speaker 01: I would point out, too, in Reed, [00:20:06] Speaker 01: The event-related signs were subject to restriction not only based on duration, but also things like size and number or location. [00:20:17] Speaker 01: We're not arguing for that distinction with respect to event-related signs. [00:20:21] Speaker 01: The only thing is a time restriction, which, as I pointed out, Justice Alito and his concurrence specifically says that this would be content neutral. [00:20:29] Speaker 01: And I think that explains the majority opinion. [00:20:32] Speaker 04: Well, the strongest statement I could find in the majority opinion is the sentence that says, talking about town of Gilbert, where it says, nor do the sign codes distinction hinge on whether and when an event is occurring. [00:20:51] Speaker 04: Then it goes on to say, [00:20:58] Speaker 04: that still may not pass muster. [00:21:01] Speaker 04: And I guess the question is, when it comes back to cite Vincent, where there's an entire ban, it's difficult to say that the one part of Justice Alito's concurring opinion on which you're relying, as Justice Kagan points out in her separate opinion, [00:21:29] Speaker 04: is difficult to reconcile with the majority opinion. [00:21:34] Speaker 01: But Justice Alito is explaining the majority opinion, and he's part of the majority, as well as the other two justices. [00:21:39] Speaker 01: So I think that is the controlling interpretation of the majority opinion. [00:21:44] Speaker 04: Well, but the majority had six justices on it. [00:21:47] Speaker 01: Correct. [00:21:48] Speaker 04: So this is not a question of where we're looking to the concurring justice as the controlling opinion. [00:21:54] Speaker 01: No, I'm not suggesting it's a controlling opinion. [00:21:56] Speaker 01: I'm only suggesting that it explains the majority opinion. [00:22:00] Speaker 01: It's not taking any different approach than the majority opinion. [00:22:05] Speaker 01: It's an explanation. [00:22:07] Speaker 01: I would point out, too, that Reid does not overturn Hill versus Colorado. [00:22:11] Speaker 01: It does not overturn Renton. [00:22:13] Speaker 01: I think those cases [00:22:15] Speaker 01: show why the district's regulation here is content neutral. [00:22:19] Speaker 01: The Supreme Court in those cases rejected sort of an overly formal definition of content-based, which is what the plaintiffs are relying upon here. [00:22:29] Speaker 01: There's no risk, and no risk has been shown, of any suppression of disfavored speech, which was part of the analysis in the majority opinion. [00:22:40] Speaker 03: City's interest that once an event has passed, nobody's tending the signs, and so they're more likely to end up in the gutter and be littered, be abandoned, whereas if a sign has ongoing relevance, people are gonna be tending them. [00:22:56] Speaker 01: Right, or that by design, when it's first posted, it's not designed to persist beyond the date of the event. [00:23:05] Speaker 01: Yeah, so that leads to the specific concern about flight as those signs deteriorate, and litter as those signs deteriorate, and then fall off become detached from the lamppost. [00:23:15] Speaker 02: What do you do or say with respect to the sign referenced in the material from your posting, that where the sign just gives the name of a candidate? [00:23:26] Speaker 02: Is that event related or is that not event related? [00:23:31] Speaker 01: Well, it may be event related even though the date, time, location of the event is not specifically written on the sign. [00:23:39] Speaker 01: It can still be event related. [00:23:41] Speaker 02: Does that support their proposition that this event can usually evade? [00:23:46] Speaker 01: Uh, no, your honor. [00:23:48] Speaker 02: And that's maybe event related. [00:23:50] Speaker 02: That sounds a little vague. [00:23:53] Speaker 01: Well, I just meant that there's more information that the the inspector can gather. [00:24:00] Speaker 01: If it turns out there's an election in a few days, then then that might be evidence that would be put forward to support the violation. [00:24:08] Speaker 01: But just because the inspector can gather different types of information is not limited to me a moment. [00:24:15] Speaker 02: If [00:24:15] Speaker 02: The sign is not event related. [00:24:17] Speaker 02: How long can it stay up? [00:24:20] Speaker 01: 180 days. [00:24:21] Speaker 01: 180 days. [00:24:23] Speaker 02: So why do we need this separate distinction on it being event related that puts it to X days, 30 days after the event? [00:24:33] Speaker 01: Right. [00:24:33] Speaker 02: Does that make everything suddenly 180 days and get about as much done? [00:24:38] Speaker 01: Well, no, it wouldn't be as nearly tailored as to the interest I was just describing to Judge Pillard that there is this particular concern about blight and litter with respect to event-related signs. [00:24:52] Speaker 01: In fact, the district court saw that that was straightforward. [00:24:54] Speaker 01: I mean, it specifically used the word straightforward and said that a poster for an event that has already occurred is more likely to constitute litter and blight than a poster for a future event or a general political message. [00:25:05] Speaker 01: That was the district court. [00:25:06] Speaker 01: recognizing the straightforward rationale. [00:25:08] Speaker 01: And so that single durational across the board limit would not be as tailored to that particular interest. [00:25:15] Speaker 01: And as we pointed out, if we are limited to just a single limit, then that forces the district in order to accommodate that interest specific to event-related signs to bring down that 180 period to, say, 60 days, which was what it originally was under the regulations. [00:25:33] Speaker 01: We pointed to the Williams case. [00:25:35] Speaker 01: I think that explains why there is no vagueness concern here That what has to be proven is clear that it's related to specific event how that might be proven You know that doesn't raise the vagueness concern [00:25:49] Speaker 03: Well they say that there's a due process aspect of the vagueness of the enforcement discretion and I have to say the record is not great for you on that with the officers who are in charge of enforcement kind of saying it's whatever I say. [00:26:02] Speaker 03: Would it be appropriate for us to give a narrowing saving construction to that and say this is really just about determining an event like Easter egg hunt, Easter's past, election, elections past, [00:26:19] Speaker 03: Passover assembly, Passover's passed, or is it something more than that? [00:26:26] Speaker 01: No, absolutely. [00:26:27] Speaker 01: I mean, to the extent that there is a limiting construction that would be required to preserve the constitutionality of the regulation, this court should adopt it and we would agree with that. [00:26:36] Speaker 03: Do you have any proposals in that regard? [00:26:40] Speaker 01: Well, part of the problem is that Massive hasn't alleged any conduct that it would engage in that would even cause evade this concern. [00:26:48] Speaker 01: And that was our argument that we raised. [00:26:50] Speaker 01: That precludes them from even raising this claim, but it also makes it difficult. [00:26:55] Speaker 01: to address that issue, because I don't have an actual scenario that's even proposed where we would need to consider a limiting construction. [00:27:05] Speaker 01: We cited the Holder case, Holder versus Humanitarian Life Project, which goes to that point that the plaintiff does not have the ability to challenge [00:27:17] Speaker 01: the vagueness of a statute when it would be clear as applied to them. [00:27:20] Speaker 01: Here, again, the plaintiff hasn't alleged, massive hasn't alleged, that it would engage in conduct or has a concrete intent to engage in conduct that would raise a vagueness concern. [00:27:34] Speaker 01: To the extent it has alleged any conduct that it intends to gauge in, it's clear that the regulation as applied to them would prohibit what they intend to do. [00:27:46] Speaker 03: Well, humanitarian law is really about the vagueness with respect to notice to the people subject to the law, and I think they're raising a slightly different claim that it's vague in the sense of affording too much enforcement discretion. [00:27:58] Speaker 03: I think in light of their characterization of what happened to answer, they're quite concerned about the enforcement discretion, and do they need to be subject to improper enforcement discretion in order to be able to raise that vagueness challenge? [00:28:17] Speaker 01: Yes, yes, they do, because it can't just sort of be, it's vague in the abstract, even though it's applied to them, it's not. [00:28:27] Speaker 01: And I would point out the answer violations had to do with a different provision of the regulations entirely, the use of adhesive that didn't allow easy removal or [00:28:37] Speaker 01: removal without damaging the fixture. [00:28:41] Speaker 01: So that's that's entirely different regulation. [00:28:45] Speaker 01: The fact is too that that massive has an opportunity or any individual has an opportunity when they file a copy of the poster to seek clarification at that point. [00:28:57] Speaker 01: the poster can still be up for a minimum of 30 days in which clarification is sought, that there is a process, an administrative process, and then ultimately a judicial review process by which the courts can adjudicate any claim that the petitioner or the individual cited might raise regarding fair notice or the vagueness of the statute. [00:29:25] Speaker 01: I see, I am over my time. [00:29:28] Speaker 01: Unless the court has further questions. [00:29:31] Speaker 04: All right, we'll give you some time on rebuttal. [00:29:34] Speaker 01: Thank you. [00:29:55] Speaker 06: May it please the court. [00:29:58] Speaker 06: The district's regulations are an unconstitutional content-based regulatory scheme that impacts First Amendment protected speech. [00:30:11] Speaker 06: under read and as challenged throughout this litigation. [00:30:15] Speaker 06: But I would note as well that the lower court found that the district failed to meet even a lower level of scrutiny, failed to meet intermediate scrutiny. [00:30:26] Speaker 06: And this court has the ability to uphold the lower court ruling on that basis, although we would urge the court as well to reach the issue of the content-based regulations and their failure under read. [00:30:42] Speaker 06: The district has never proffered evidence in this case to meet a compelling interest standard and has never attempted to. [00:30:51] Speaker 06: Their request now for a remand were that to be the issue is inappropriate because the plaintiffs in fact challenged [00:31:00] Speaker 06: these regulations as content-based, raising many of the same issues and arguments that have been presented in read throughout the course of this litigation, which has gone on for more than eight years. [00:31:10] Speaker 06: And the District of Columbia made its own determination that it would not attempt to respond or proffer evidence to suggest that it could meet a compelling standard. [00:31:20] Speaker 06: And as the lower court noted explicitly in its own opinion, that were the district to be required to meet a compelling standard, [00:31:28] Speaker 06: It could not and did not appear to indicate that it thought that it could. [00:31:32] Speaker 04: Well, what about the district court's statement to which council alluded about litter and aesthetics being straightforward? [00:31:41] Speaker 06: That statement regarding literate aesthetics, I think, becomes very important and also pointing to Judge Pillard's question about whether or not there are limits that could be placed on the interpretation of the construction of the statute because the issue becomes persistent political relevancy. [00:32:03] Speaker 06: Now, if we're talking about a yard sale, [00:32:06] Speaker 06: which is, in fact, in the recourt, the question of the concurrence in what Justice Alito was talking about, in the oral argument, he's discussing the question of a one-day yard sale. [00:32:16] Speaker 06: It's not a sign that has persistent political relevancy. [00:32:19] Speaker 06: In this case, and in the record explicitly, in fact, Massef was posting a sign that was hybrid in nature. [00:32:26] Speaker 06: It's in the record at JA536 that says, shut down Guantanamo, stop torturing Muslim prisoners, and also references the date of an event. [00:32:36] Speaker 06: Now, when the date of that event has occurred, that sign does not lose political relevancy. [00:32:43] Speaker 06: Indeed, to this day, that sign has not lost political relevancy. [00:32:47] Speaker 03: Is it Verheyden-Hillyard? [00:32:48] Speaker 03: Yes. [00:32:50] Speaker 03: We don't have a record of any enforcement. [00:32:52] Speaker 03: It may be that they'll look at that and say, oh, that's an issue sign. [00:32:56] Speaker 03: Yeah, it has an event aspect, but hey, First Amendment, we're going to leave that up. [00:32:59] Speaker 03: You don't have any record that your hybrid signs are going to [00:33:04] Speaker 03: cause any trouble for you, do you? [00:33:07] Speaker 06: We do. [00:33:07] Speaker 06: We have two areas of the record where that is represented. [00:33:12] Speaker 06: One is before the lower court in the depositions of the enforcement agents. [00:33:18] Speaker 06: There were repeated depositions where they were presented with hybrid signs, where there was a message of political relevancy, and then also had a date. [00:33:27] Speaker 06: And the enforcement agents came back with completely different positions at different points in time with different signs indicating that it was up to their discretion that one sign might come down, one sign might not come down, which also goes to the vagueness of the regulations. [00:33:44] Speaker 06: The other area where this is presented is back to this issue regarding MASF's activities, which were manifest, which were continuing, which notably [00:33:55] Speaker 06: The district only raised the question and made what we believe is a completely baseless allegation that Maseft didn't exist after. [00:34:04] Speaker 02: It doesn't look baseless. [00:34:06] Speaker 02: You may win on this. [00:34:07] Speaker 02: Name calling is not arguable. [00:34:10] Speaker 02: It isn't baseless. [00:34:11] Speaker 02: They had what looked like a perfectly good reason for raising this question. [00:34:15] Speaker 06: I appreciate what your honor is saying, but to indicate my reference to baseless, I did not mean it as unsupported pejorative. [00:34:25] Speaker 06: I meant it based on the fact that at the time that they raised this issue, one, they were looking at a printout that on the face of the printout states that there is not a closure, but two, [00:34:38] Speaker 06: the attorney general had just been approached by counsel, by our office, advising that MassF was about to engage in a post-trait campaign and asking them to strike the regulations that they had left on the books, even after the court had ruled against them, because we were concerned about the enforcement agents' treatment of those regulations. [00:35:00] Speaker 02: And it was- I have for David here, while we can pick out of it a lot of things, it doesn't have the kind of clarity, especially in that [00:35:08] Speaker 02: I've become accustomed to seeing and standing at the data from Sierra Club or many other groups that we get. [00:35:17] Speaker 02: Are you asserting here entity standing or associational standing advancing the interest of your, or relying upon the interest of members? [00:35:27] Speaker 06: Relying on, pardon me, sir? [00:35:29] Speaker 02: Relying on the interest of members and Apple's outstanding [00:35:34] Speaker 02: Association stand. [00:35:36] Speaker 02: We have many cases. [00:35:37] Speaker 02: Yes, where the association says we're asserting the interest of our members. [00:35:43] Speaker 02: Then they have an affidavit from six members. [00:35:45] Speaker 02: I go fishing in that water or whatever. [00:35:50] Speaker 06: Well, this case came before this court previously on the issue of standing. [00:35:57] Speaker 06: And it was found that MASF did have standing to pursue these issues. [00:36:01] Speaker 06: MASF has alleged standing on behalf of itself, on behalf as well, because it's a facial challenge of the general public that is impacted by this. [00:36:10] Speaker 06: But I've diverted in response, because I touched on the standing issue, but to follow up on the question about where in the record [00:36:19] Speaker 06: So in the affidavit, after this issue was raised on appeal, MASF then, in fact, took its hybrid poster, complying with the regulations to have it registered with the District of Columbia offices. [00:36:34] Speaker 06: And when they took that hybrid poster in, they were told by the enforcement agent in charge there, Nancy Wilson, that, in fact, it would be subject [00:36:46] Speaker 06: to the truncated time period and would be forced to come down. [00:36:50] Speaker 02: Let me ask you again. [00:36:51] Speaker 02: I know we're interrupting, but we do that, that we're famous for that. [00:36:54] Speaker 02: I understand, sir. [00:36:56] Speaker 02: Is it your position that there cannot be a distinction between the issue signs and the event signs, or is it your position simply that the regulation that exists is not sufficiently specific and clear as to the distinction? [00:37:12] Speaker 06: It is our position that it fails on two levels. [00:37:15] Speaker 06: One, we view it as unconstitutional, facially unconstitutional, in that it is content-based regulation that, in fact, in order for it to be enforced, it requires enforcement based on the actual content of the speech, of the sign. [00:37:33] Speaker 06: But also, it fails as a due process matter. [00:37:37] Speaker 06: because it is hopelessly vague and facially. [00:37:41] Speaker 02: With reference to the first statement, what do you say to the proposition discussed in the arguments of opposing counsel in the record from district court that a sign that is event related is a greater danger or hazard, if you would, to aesthetics because the interest is lost in it after the event is over so that there is a legitimate basis for distinction? [00:38:07] Speaker 06: I would refer again to the example of the sign J536 that was actually posted exists in the record that says shut down Guantanamo. [00:38:18] Speaker 02: Right, now that's answering a different question. [00:38:21] Speaker 02: We're on the content-based distinction. [00:38:24] Speaker 02: Let's play on it for a minute. [00:38:25] Speaker 02: Yes, sir. [00:38:26] Speaker 02: Get away from the baby. [00:38:28] Speaker 02: On the content base, why isn't it a legitimate distinction to say that there is a difference between an event-based fund and a political issues fund with reference to its harm or danger to aesthetics and cleanliness of the community? [00:38:47] Speaker 06: And that was, in fact, the question I was answering. [00:38:48] Speaker 06: I was not moving back to vagueness. [00:38:51] Speaker 06: with regard to using that sign as an example. [00:38:54] Speaker 02: No, I don't think that sign is an example. [00:38:56] Speaker 02: I'm asking you the general proposition, not does that sign meet one side or the other. [00:39:01] Speaker 02: You can convince, you can envision a sign that simply has a closed word tunnel. [00:39:09] Speaker 02: On X-Day, we'll have a event about closing Guantanamo. [00:39:13] Speaker 02: Now, why isn't there a legitimate distinction between the regulatory periods for those two times? [00:39:18] Speaker 06: And that's the example that I was going to make, Your Honor, because it's similar to this, that you have a sign that says shut down Guantanamo, and you have another sign that says shut down Guantanamo on the same letters, but underneath has a reference to a demonstration. [00:39:33] Speaker 06: The message of the sign has persistent political relevancy. [00:39:36] Speaker 06: There isn't a basis to take that sign down short of a period for any other sign that's elected instead. [00:39:42] Speaker 02: The second sign doesn't have a political message on it. [00:39:45] Speaker 02: It just refers to the event. [00:39:47] Speaker 02: Let's get that point. [00:39:49] Speaker 02: Quit finding my hypothetical. [00:39:51] Speaker 02: And answer my question as to why isn't there a legitimate distinction between a clearly event-based sign and a clearly non-event-based? [00:39:59] Speaker 06: If the event-based sign is advocating, for example, your honor's referring to a non-commercial event-based sign that has no political messaging whatsoever. [00:40:11] Speaker 02: Humor me, counsel. [00:40:14] Speaker 02: I think you understand what I'm getting. [00:40:17] Speaker 04: Come to a meeting on closing Guantanamo May 1, 2016 at 8 PM, Verizon Center. [00:40:26] Speaker 06: That sign, I would. [00:40:28] Speaker 06: suggests may have less durational political relevancy as a major call to action. [00:40:34] Speaker 06: But at the same time, Your Honor, I would say, and the court in Reed actually acknowledged- The sign says both sides will be represented. [00:40:42] Speaker 02: Okay, but the- Okay, let's get the political metric out of. [00:40:44] Speaker 02: You're fighting the hypothetical. [00:40:46] Speaker 02: We want an answer to that. [00:40:47] Speaker 06: I am. [00:40:47] Speaker 06: I'm answering the hypothetical. [00:40:49] Speaker 06: The court in Reed acknowledged that, for example, when you may have a call related to election, that it has ongoing political relevance because it sparks debate and opinion. [00:40:59] Speaker 02: They're saying the government cannot make a distinction between the event-related political stand and the issue-related political stand. [00:41:07] Speaker 02: Is that your ultimate position on this? [00:41:10] Speaker 06: My position is it's so long as the sign has any political content, any political content. [00:41:16] Speaker 02: It has no political content. [00:41:17] Speaker 06: If it has no political content and no words of political import and no call to action regarding any issue or political issue, then no. [00:41:26] Speaker 02: We have already hypothesized, we already have hypothesized, and you heard us, that the sign says what Judge Rogers says. [00:41:32] Speaker 02: It doesn't take a position on closing one time up. [00:41:35] Speaker 02: It simply says, come join our discussion. [00:41:40] Speaker 02: That's the sign we're dealing with. [00:41:42] Speaker 02: If a sign is an event sign. [00:41:44] Speaker 06: If a sign has no political content whatsoever, then it would not fall in the context of the First Amendment protections for political speech. [00:41:55] Speaker 02: This is a yes or no question. [00:41:56] Speaker 02: Yes. [00:41:57] Speaker 02: Yes, there can be a distinction between event signs and issue signs. [00:42:01] Speaker 02: Or no, there cannot be a distinction. [00:42:02] Speaker 03: Yes, there can if there's no political content. [00:42:05] Speaker 03: So aren't there? [00:42:07] Speaker 03: maybe this is not to the point, but aren't there instances in which a sign has political content and people need them to be directed to a certain date? [00:42:17] Speaker 03: and they don't particularly want them to be up after that date. [00:42:21] Speaker 03: I mean, maybe you could as an historian or as someone who's, you can always imagine that a political sign has continuing political relevance because we had a rally on such and such a date or there was a primary election on such and such a date or we did have a meeting about the schools on such and such a date, but in a lot of cases, [00:42:44] Speaker 03: people don't have that position that's just not relevant here because in your view they might. [00:42:51] Speaker 06: So it would be up to an entity to decide that it was taking down its signs in a shorter period. [00:42:56] Speaker 06: There isn't a basis on that for which the government to come in and say that the government inspection agents have decided, based on the content of the sign, that it no longer has political relevancy. [00:43:06] Speaker 06: And they are either taking it down or fining someone for leaving it up. [00:43:10] Speaker 03: What if they allowed you to say when you came in, hey, this is a sign. [00:43:14] Speaker 03: This is an event-based sign. [00:43:16] Speaker 03: we don't need to be up after the event or this is a sign that refers to an event but we think it has continuing political relevance and so we plan to take care of our signs and not have them become litter but we want them to stay up. [00:43:30] Speaker 03: Would that be constitutional or is there something else [00:43:34] Speaker 06: I suppose if the district wanted to write regulations that when a sign is registered someone can check a box and say I'm seeking to avail myself of a hundred and eighty day full posting period or I'm voluntarily agreeing that my sign should come down after 30 days there's no reason that the government can't [00:43:52] Speaker 06: make that request, it becomes when the government itself is making the determination about the political relevancy, about the content, about the speech of a sign. [00:44:01] Speaker 06: And for the government to make the determination that a sign is litter under circumstances when... No, I understand your position on that. [00:44:08] Speaker 03: But in order to put these posters up now, do you have to go and register them? [00:44:12] Speaker 06: Yes. [00:44:12] Speaker 03: Nobody's challenging that. [00:44:16] Speaker 06: We challenged the registration requirement at the lower court based on anonymous speech issues, but the court found that, similar to the Tove's Witness case, that because the registration came after the fact of posting, that it wasn't putting a burden on the posting. [00:44:37] Speaker 06: And it wasn't requiring a person who was posting to be identifying themselves at that moment. [00:44:43] Speaker 02: We don't need to get to that anonymous question. [00:44:46] Speaker 06: No you do not. [00:44:50] Speaker 06: If I may just briefly, I'd like to also just address, and I don't know if the court needs to hear from me on this or not, with regard to the sanctions issue, because the district has represented that it said it reserved the right to take discovery, but in fact, in its own writings, it said it reserved the right to object to plaintiff's discovery requests. [00:45:13] Speaker 06: Throughout the back and forth, which was put into the record, they never sought discovery, except at the end they submitted this proposed order, and the court did not accept their proposed order. [00:45:28] Speaker 02: I have a little concern about the precedent we might be making on the sanctions for the district taking discovery. [00:45:37] Speaker 02: If you read this history and leave out one little bit of the record and simply say that the order allowed one party time for discovery, didn't allow the other party time for discovery, and the court held that the second party was subject to sanctions when they tried to avail themselves of discovery, that sounds a bit strange, doesn't it? [00:45:57] Speaker 06: That would be a broad reading of what actually occurred in this instance. [00:46:01] Speaker 06: And what actually occurred in this instance is that the district disclaimed the need for discovery. [00:46:06] Speaker 06: There was back and forth as there should be between counsel conferring. [00:46:09] Speaker 06: There was proposals put before the court in which the district said no discovery. [00:46:12] Speaker 06: The plaintiff said there should be discovery. [00:46:14] Speaker 06: The district said if there is discovery for the plaintiffs, we reserve the right to object to that discovery. [00:46:20] Speaker 06: We submitted a proposed order. [00:46:22] Speaker 06: They submitted a proposed order. [00:46:23] Speaker 02: The court granted our order and then the district proposed order did not say specifically the district shall have no discovery. [00:46:31] Speaker 06: Our proposed order was an affirmative order as to what discovery was being ordered in a scheduling order. [00:46:37] Speaker 02: So that would be a direct answer to my question. [00:46:40] Speaker 02: No, that order didn't say that did it? [00:46:42] Speaker 06: No, it didn't. [00:46:44] Speaker 06: There was no reason to think that. [00:46:46] Speaker 02: So there's not really a violation of any fresh term of the order. [00:46:52] Speaker 06: You're honored to follow up that point. [00:46:55] Speaker 06: What the district did is a propounded discovery against that's not going up that one. [00:47:01] Speaker 02: The point I was asking about is, there's not really a violation of any express provision of the order, is there? [00:47:07] Speaker 06: There is, Your Honor. [00:47:08] Speaker 02: There's an order that explicitly... What is the express provision that they violated? [00:47:11] Speaker 06: The express provision is that the order... Quote it to me. [00:47:14] Speaker 02: Go ahead. [00:47:14] Speaker 06: The order is an order authorizing discovery. [00:47:17] Speaker 02: That's not quoting the order. [00:47:20] Speaker 02: Quote the specific part of the order to me that you say they violated. [00:47:25] Speaker 06: The order says plaintiffs are authorized. [00:47:26] Speaker 06: It does not say defendants are authorized. [00:47:28] Speaker 02: Did they prevent the plaintiffs from doing discovery? [00:47:31] Speaker 02: The order did not say the defendant shall not do discovery. [00:47:37] Speaker 03: The difficulty is that Rule 26, I mean discovery is supposed to be something that happens without gatekeeping by a district court. [00:47:45] Speaker 03: It's already initiated and that's the background rule. [00:47:49] Speaker 03: So typically unless there's been a limitation on discovery, [00:47:53] Speaker 03: parties have the opportunity to take discovery from one another. [00:47:57] Speaker 03: And you're right that there seems to be potentially negative implication in this order that the district doesn't get discovery, but against the backdrop general rule that discovery is available, it's a little hard to stomach the way the district court read it. [00:48:13] Speaker 06: I would say that the district court, and noting the district court's opinion, goes through in detail. [00:48:18] Speaker 06: The district court is managing its docket, managing the discovery. [00:48:21] Speaker 02: But that's all post-hug. [00:48:22] Speaker 02: We have in front of us, as Judge Filler suggests, an order that does not say the district can't take discovery. [00:48:29] Speaker 02: We have room 26 that says the parties can take discovery, and then also says this applies after the order of the court. [00:48:44] Speaker 02: And wouldn't it be a bit strange for us to affirm sanctions for violating an order that isn't literally violated? [00:48:53] Speaker 06: Your Honor, I would say that the ability of courts to issue discovery orders and, in fact, the meet and confer requirements, if at any point the district had said it wanted to have discovery, then we would have disputed that. [00:49:06] Speaker 04: The court in its original... It proposed an order. [00:49:09] Speaker 04: Pardon me? [00:49:10] Speaker 04: Its order included discovery for the district. [00:49:14] Speaker 04: The District Court did not adopt that order. [00:49:18] Speaker 04: That's correct. [00:49:18] Speaker 04: But it was before. [00:49:19] Speaker 04: The District of Columbia's proposed order was before the District Court. [00:49:24] Speaker 06: And the district is aware that its order was not adopted and then did not seek. [00:49:29] Speaker 06: It did not file anything with the court. [00:49:31] Speaker 02: We filed a proposed order that didn't say the district would have no discovery. [00:49:36] Speaker 06: We did not, Your Honor. [00:49:37] Speaker 02: You didn't file a proposed order. [00:49:39] Speaker 06: We filed a proposed. [00:49:39] Speaker 06: I was agreeing with you. [00:49:40] Speaker 06: We did not file a proposed order stated that the district could not have discovery. [00:49:45] Speaker 06: We found a proposed order in compliance with the meet and confer requirements and the court scheduling order. [00:49:51] Speaker 06: that laid out the details of the discovery that would exist. [00:49:56] Speaker 06: And that's what was put forward in this case. [00:49:59] Speaker 06: And the district did not even, if it had a disagreement with the court's order, not adopting its order, but adopting our order, that it had the ability to go to the court and seek clarification or seek a different order. [00:50:13] Speaker 06: That would suggest, Your Honor, that there's no point to a discovery order at all or a scheduling order. [00:50:19] Speaker 02: I would suggest there would have been a lot more point to it if you had put in the provision that you wanted for it. [00:50:24] Speaker 06: The court in its earlier order had said that in this case, the district will be given opportunity to explain its position. [00:50:31] Speaker 06: It made it clear that the discovery was flowing against the district. [00:50:34] Speaker 06: There was no basis upon which to seek discovery of the plaintiffs. [00:50:37] Speaker 06: And the court acknowledged that, too, that the discovery that the district was putting forward actually had no basis or legitimacy, which is another. [00:50:46] Speaker 04: I gather you are not arguing that there was bad faith by the District of Columbia, are you? [00:50:55] Speaker 06: We do believe that there was bad faith by the District of Columbia when one reads the communications back and forth. [00:51:00] Speaker 04: That its reading of the order was not reasonable? [00:51:06] Speaker 06: The reading of the order was not substantially justified at all. [00:51:08] Speaker 04: So the rule is that even though the order has nothing explicit about it, if the negative precedent, negative pregnant is there, you could be sanctioned. [00:51:18] Speaker 04: That's what's the problem. [00:51:22] Speaker 06: Your Honor, not when one looks at the very specific facts which I would urge. [00:51:25] Speaker 04: I know. [00:51:25] Speaker 04: You have to know the whole case. [00:51:27] Speaker 04: And when you read the district court's published orders and the federal rules decisions volumes, that becomes clear. [00:51:37] Speaker 04: But if you're trying to say, what is the rule that the district court has adopted, it does seem to me it's very different from what other courts have said, that where the order says you can't do x and you go ahead and do x, [00:51:51] Speaker 04: then you can be sanctioned. [00:51:54] Speaker 04: But if the order is silent, absent some evidence of bad faith or something like that, a finding by the district court, and the district court didn't make such a finding. [00:52:03] Speaker 06: In this matter, Your Honor, I would note that it's an abuse of discretion standard that the court had in front of it all of the communications, its own rulings, everything that would come to its ability to make a determination. [00:52:18] Speaker 06: I believe very clearly that the court was within its sound discretion and sound authority in interpreting its own order, interpreting in the context of the communications, both between the parties and between the parties and the court and the court out to the parties. [00:52:33] Speaker 06: And that that is not a ruling that could be disturbed based on abusive discretion standard. [00:52:38] Speaker 06: I don't believe that it creates some other broader ruling that is problematic. [00:52:45] Speaker 02: Well, the problem with the United is everything we do [00:52:49] Speaker 02: Everything we do is personal. [00:52:52] Speaker 02: And it's going to be a bit hard to find a limiting principle if we say that a party can be sanctioned for violating the spirit of something that isn't in the letter. [00:53:04] Speaker 02: Isn't it that going to be a bit hard? [00:53:06] Speaker 06: I would say in each and every case one looks to the facts underlying the rule to see if that case's facts make that rule applicable to another subsequent case's facts. [00:53:17] Speaker 06: And the facts here are very particular. [00:53:19] Speaker 02: I understand you're evading my question. [00:53:22] Speaker 02: I don't believe I am. [00:53:23] Speaker 02: We're still left with what is the limiting principle if we say that a party can be sanctioned for violating an understanding of an order as opposed to violating the terms of an order. [00:53:35] Speaker 06: I would say that the limiting principle is that a party is obliged to follow the orders of the court, the process of the court. [00:53:45] Speaker 06: There's a reason that there's a meet and confer process. [00:53:47] Speaker 06: There's a reason that a court issues scheduling orders. [00:53:50] Speaker 06: The plaintiffs could simply have not done anything at all. [00:53:52] Speaker 02: I haven't really heard the limiting principle yet that you're advancing. [00:53:54] Speaker 06: The limiting principle are the Federal Rules of Civil Procedure. [00:53:58] Speaker 02: There is no allegation of a violation of the federal rules. [00:54:03] Speaker 06: There was a scheduling order issued. [00:54:05] Speaker 02: Yeah, there was a scheduling order that doesn't have this provision in it. [00:54:11] Speaker 02: It may be the implication of it, it may be the intent of it, but it's rather hard to find a limiting principle for the proposition that we can sanction somebody for violating a provision that isn't there. [00:54:22] Speaker 06: The district proffered one order and the court granted another. [00:54:26] Speaker 06: The suggestion that that somehow allowed the district to go well beyond [00:54:32] Speaker 02: Now, the rules allow the district to go well beyond unless there's an order to the country. [00:54:39] Speaker 02: There's not really an order to the country. [00:54:42] Speaker 06: There is an affirmative authorizing order. [00:54:44] Speaker 06: That is the point of court scheduling orders. [00:54:46] Speaker 04: But you wouldn't want to be on the other side of this order. [00:54:49] Speaker 04: That's of this rule. [00:54:51] Speaker 04: I mean, that's the real problem here. [00:54:54] Speaker 04: And the whole point of orders is so everybody's clear as to what the obligation is. [00:55:01] Speaker 04: And if it's not clear, [00:55:03] Speaker 04: then you wouldn't want sanctions imposed on you. [00:55:08] Speaker 06: I think reading the circumstances surrounding, the very particular circumstances surrounding under which these sanctions were ordered completely grounds them in a justifiable determination by the district court. [00:55:23] Speaker 04: So the limiting principle would be where a party has previously indicated it does not need, that discovery is not needed at all. [00:55:33] Speaker 04: that if the district court issues an order granting one party discovery, it is a violation of that order for the other party to take discovery as authorized by the rules. [00:55:47] Speaker 06: Yes, and I would add where a party has asked for a discovery, [00:55:54] Speaker 06: by in that order where it never addressed it throughout the process. [00:55:58] Speaker 06: But in that order, it submitted an order. [00:55:59] Speaker 06: Its order was not adopted. [00:56:01] Speaker 06: It may not simply avail itself of an order that was not adopted by the court. [00:56:09] Speaker 04: Anything further? [00:56:12] Speaker 06: Court's indulgence. [00:56:17] Speaker 06: Your Honor, the other areas that were not addressed were the plaintiffs [00:56:24] Speaker 06: Uh, dismissed claims at the motion dismiss stage. [00:56:28] Speaker 04: The cross appeal. [00:56:28] Speaker 04: We haven't talked about it. [00:56:29] Speaker 04: Pardon me? [00:56:30] Speaker 04: The cross appeal. [00:56:31] Speaker 06: The cross appeal regarding section 1983 claims and the strict scrutiny claims. [00:56:36] Speaker 06: They are briefed, but to the extent that the court wishes to discuss them further. [00:56:42] Speaker 06: I mean, strict liability, not strict scrutiny. [00:56:45] Speaker 06: Sorry, strict liability, I apologize. [00:56:47] Speaker 03: Can I just ask you, going back to the existence of Massive and the standing question, is there, can you just explain to us, I mean, I know we can't take what Council's representations as fact, but what's the story with the confusing news story and then the, [00:57:06] Speaker 06: And I'm happy to explain it, and because you don't need to take council's representation as fact, it's also in the record, that MASF [00:57:21] Speaker 06: after its executive director, Monty Bray, suffered a stroke, had a diminution in fundraising, and underwent a restructuring. [00:57:32] Speaker 06: A staff member who was unauthorized and was no longer going to be employed issued [00:57:40] Speaker 06: an unauthorized statement, which at the point of time at which it was published or referenced in that newspaper article, you could see on the face of the same printout, there's someone who's on the trustee of the organization. [00:57:56] Speaker 03: So is he now no longer the head of the organization? [00:58:00] Speaker 03: Is he the head of the organization? [00:58:01] Speaker 06: He is. [00:58:01] Speaker 06: He is still a leader of MASF. [00:58:04] Speaker 06: And was he at all times? [00:58:06] Speaker 06: Yes, at all times, and that's what it says in his statement. [00:58:10] Speaker 06: I would point to paragraph [00:58:21] Speaker 06: Five of the October 2013, I have always been one such individual, along with others, who have determined the policies and activities of MASF. [00:58:33] Speaker 03: That just says he participates in the management of the affairs, which may be enough under DC law, but it was just there was a little ambiguity given the way that that's couched. [00:58:41] Speaker 06: Sure, and that was the phrasing. [00:58:42] Speaker 06: So the reason that there are multiple affidavits is at each step that the district raised, [00:58:48] Speaker 06: a question, we voluntarily provided sworn affidavits to answer those questions, but the district view was there's nothing that they wanted to go down this path no matter what was said. [00:59:02] Speaker 06: And so each of these affidavits was seeking to satisfy the identified [00:59:07] Speaker 06: concerns of the district claimed that it had. [00:59:10] Speaker 06: So MASF not only continued to operate, but as noted, MASF at the very time that the district was claiming to this court that it didn't exist, the district was communicating with MASF over its posterity. [00:59:23] Speaker 06: And the fact that it was going to actually impose the 30-day truncated period, even in light of the law being struck at the time of that [00:59:33] Speaker 06: of that postering campaign. [00:59:36] Speaker 04: Enjoined, right? [00:59:39] Speaker 06: Yes, enjoined. [00:59:41] Speaker 06: And so throughout this process, MASF has continued, it has undergone restructuring, which is not unusual for any organization in terms of, you know, it's [00:59:56] Speaker 06: funding or its capacities at different levels, but it has always had the capacity and has always continued organizing and has continued its political activities and it was continuing its political activities through this park. [01:00:08] Speaker 06: There's never been a point at which it was not. [01:00:12] Speaker 04: So I don't know the law on this, but is it registered somewhere with the district? [01:00:17] Speaker 06: So this is the requirement of the District Uniform Unincorporated Nonprofit Association Act. [01:00:22] Speaker 04: Yes. [01:00:22] Speaker 06: There is, in fact, no registration requirement. [01:00:25] Speaker 06: That's never changed. [01:00:26] Speaker 04: Right. [01:00:27] Speaker 04: So it is not registered anywhere with the district. [01:00:30] Speaker 04: I just want to be clear. [01:00:31] Speaker 06: Not to my knowledge is there a registration requirement that would be registered. [01:00:36] Speaker 06: The act, in fact, defines the nature of an unincorporated association based on the fact that it acts, that it does things as, you know, to people. [01:00:53] Speaker 02: this act, it used to be the norm that an unincorporated association was not too generous. [01:00:59] Speaker 02: I take it this act has adopted a lot of places now, but is there any remaining question as to whether an unincorporated association can be asserting interest in its own name and person? [01:01:13] Speaker 06: None that I'm aware of at all, and in fact, across the country. [01:01:16] Speaker 02: There is a good bit of old law on that, just before those statutes. [01:01:21] Speaker 06: Yeah, and this is widely recognized and routinely used in litigation, too, where there are unincorporated associations that, particularly in the context of free speech activities, would have a need to. [01:01:34] Speaker 02: What you struggle with is the question of diversity, diversity in jurisdiction. [01:01:37] Speaker 02: Before you could have this entity as a representative, you had to show that all of the members were diverse. [01:01:46] Speaker 02: And I guess that's really what prompted you to test it. [01:01:51] Speaker 04: All right, thank you. [01:01:54] Speaker 06: And your honors, again, we haven't discussed this. [01:01:57] Speaker 04: But you'll stand on your briefs as to the cross field. [01:02:01] Speaker 06: Yes, unless your honors have any questions. [01:02:03] Speaker 04: Thank you. [01:02:12] Speaker 01: Thank you, Your Honors. [01:02:13] Speaker 01: On the sanctions issue, the District Court specifically did not base its sanctions ruling on any bad faith by the District. [01:02:21] Speaker 01: I would suggest that affirmance of that sanctions ruling would create dangerous precedents. [01:02:26] Speaker 01: Here, the District was precluded from taking any discovery at all, while the other side was permitted to take discovery. [01:02:33] Speaker 01: That one-way discovery is an experience. [01:02:35] Speaker 01: But you could say that you didn't make discovery, hadn't you? [01:02:39] Speaker 01: That's because not a party needed discovery. [01:02:42] Speaker 01: But we did request in the scheduling order that each party be permitted discovery in the alternative. [01:02:48] Speaker 01: And you can imagine other situations where the scheduling order might be silent. [01:02:53] Speaker 01: What if the parties ask for requests for admission, and it's not included in the scheduling order? [01:02:58] Speaker 01: Does that bar requests for admission? [01:03:01] Speaker 01: The rules of civil procedure permitted the discovery that the district took absent an express [01:03:06] Speaker 01: statement in the scheduling order to the contrary. [01:03:09] Speaker 01: On the mootness issue, there are legitimate questions still that are not answered by the affidavit. [01:03:16] Speaker 01: The affidavit is unclear about whether Mr. Bray still holds a leadership position. [01:03:20] Speaker 01: It's unclear. [01:03:22] Speaker 01: Even though unincorporated associations can exist, they still have to form at some point in time. [01:03:27] Speaker 01: There has to be an actual legal existence, an agreement that brings it into existence. [01:03:33] Speaker 01: We don't know what that agreement was. [01:03:35] Speaker 01: who made it, when. [01:03:37] Speaker 03: But do you need to know all that? [01:03:38] Speaker 03: I mean, DC law, an unincorporated nonprofit association, is an unincorporated organization consisting of two, I'm reading the law, consisting of two or more members joined under an agreement that is oral, in record, or implied from conduct for one or more nonprofit purposes. [01:03:52] Speaker 03: It's a legal entity distinct from its members. [01:03:54] Speaker 03: It has perpetual duration. [01:03:57] Speaker 03: It may be dissolved by approval of its members, by its managers, or by court order if it can't be located for three years. [01:04:05] Speaker 03: None of those things, it hasn't dissolved itself. [01:04:07] Speaker 03: You've made no showing that it's dissolved itself. [01:04:10] Speaker 03: So it did exist, and according to this quite lenient definition, it's in perpetual existence, no? [01:04:16] Speaker 01: Well, there has to be two members. [01:04:18] Speaker 01: We don't know the identity of the second member. [01:04:20] Speaker 03: The affidavit has said there have to be two members. [01:04:22] Speaker 03: The affidavit has said there are. [01:04:23] Speaker 01: Right, we just don't know the identity. [01:04:25] Speaker 03: Do you have a reason to doubt that? [01:04:28] Speaker 03: Any reason to doubt that? [01:04:29] Speaker 01: We didn't learn of this disclosure announcement until we discovered it. [01:04:34] Speaker 03: I understand, nor did we. [01:04:35] Speaker 01: And so that generates a degree of skepticism. [01:04:40] Speaker 03: What about the point that people have been dealing with the district on their signage plans? [01:04:46] Speaker 01: Well, that would be counsel and perhaps Mr. Bray. [01:04:50] Speaker 01: But just because Mr. Bray invokes the name of Massif doesn't mean it has a legal existence. [01:04:57] Speaker 01: I would also point out that even if it exists in some sense, there still has to be that course of conduct that it intends to engage in that is concrete and specific that would give rise to imminent harm. [01:05:11] Speaker 01: So there's still that additional component. [01:05:12] Speaker 04: So what do you mean by legal existence? [01:05:15] Speaker 04: That's why I ask, does it have to be registered anywhere? [01:05:18] Speaker 04: And the answer is, I gather, no. [01:05:23] Speaker 04: So you want legal existence, and what is the proof of that? [01:05:29] Speaker 01: Right. [01:05:30] Speaker 01: That would be, as referenced in the statute, that agreement. [01:05:34] Speaker 01: We don't know when this agreement was reached or how or by whom. [01:05:38] Speaker 01: By two members, we don't have an identity of a second member. [01:05:41] Speaker 01: We don't have the identity of any manager referenced. [01:05:42] Speaker 04: But the point of the latest affidavit is that it's the same organization it was when this [01:05:47] Speaker 04: litigation started. [01:05:49] Speaker 04: That's why I called your attention to paragraph 5. [01:05:51] Speaker 01: Well, I guess I question that, too. [01:05:53] Speaker 01: We've talked about this restructuring. [01:05:55] Speaker 01: I don't know what this restructuring is, what that means, whether it is the same entity or it's a successor. [01:06:02] Speaker 04: They said it's not a dissolution. [01:06:06] Speaker 04: And do you have any proof it is? [01:06:08] Speaker 04: I mean, I guess that's where I'm going with this. [01:06:11] Speaker 04: You have this one document that they have [01:06:14] Speaker 01: I recognize the affidavits and that there is some degree of explanation. [01:06:24] Speaker 01: I don't think it's sufficient for purposes of this Court assuring itself of standing given the plaintiff's burden. [01:06:30] Speaker 01: And I don't think it's sufficient on the merits so that even if it's sufficient in the summary judgment type sense, it's not ultimately sufficient on a merits type sense where the district has not had an opportunity to actually test the veracity of the statements in the affidavits. [01:06:48] Speaker 03: And then as... As I read your briefing, you claimed that the affidavit fell short, but you did not seek an opportunity to actually contest the facts in the affidavit. [01:07:02] Speaker 03: Do you see what I'm saying? [01:07:03] Speaker 03: Those are two different things. [01:07:04] Speaker 03: You rested on their failing to meet their burden. [01:07:09] Speaker 01: Well, we did both. [01:07:11] Speaker 01: In our brief, I mean, I don't remember necessarily which brief, but I think we pointed out that if this court deemed the evidence sufficient, there was still, we would still request a remand in order to flesh out the facts. [01:07:31] Speaker 01: On this issue? [01:07:33] Speaker 01: on this issue. [01:07:34] Speaker 03: Not on the first amendment issue, on the issue of the existence of the organization? [01:07:38] Speaker 01: Yes, Your Honor. [01:07:39] Speaker 01: One second, I can pull up a thing. [01:07:47] Speaker 01: Yes, Your Honor. [01:07:48] Speaker 01: On page 14 of our reply and response brief, we do say, alternatively, even if the affidavit might be sufficient, bearing in mind this affidavit that we're referencing is the one in NASA's brief. [01:08:01] Speaker 01: So this is our first opportunity to address that affidavit. [01:08:04] Speaker 01: Page 14, we say, even if it's sufficient to show massive existence, a remand would be required for discovery and fact-finding in order to verify that existence. [01:08:13] Speaker 01: So we did specifically ask for that. [01:08:16] Speaker 01: And in fairness, since the district was not even permitted and sanctioned for attempting to take discovery below, we should be permitted some opportunity, I would submit. [01:08:31] Speaker 01: And then as far as the merits, I would just briefly say that the district, I think there was an acknowledgement here that the distinction that the district is attempting to draw through its regulations is a legitimate one. [01:08:44] Speaker 01: To the extent that there may need to be some limiting construction in order to save the regulation, that's fine. [01:08:51] Speaker 01: The courts of the District of Columbia, administrative and judicial, can supply those limiting constructions. [01:08:56] Speaker 01: Likewise, with respect to the vagueness challenge, [01:08:58] Speaker 01: Those can be resolved and as applied challenges in the normal context in which law develops. [01:09:07] Speaker 01: It does not invalidate this regulation just as it would not invalidate other regulations where there might be some question of how it might be applied. [01:09:15] Speaker 04: So the district court had suggested some guidelines for the enforcement personnel. [01:09:20] Speaker 04: Do you know if any guidelines have been developed? [01:09:25] Speaker 01: Not that I'm aware of. [01:09:26] Speaker 01: I would point that the injunction went into place back in 2012. [01:09:31] Speaker 01: So under, for the past few years, we've been operating under a system where there's just one single across the board limit. [01:09:39] Speaker 01: But obviously, as I indicated, the district is aware that obviously there is going to be some process by which [01:09:49] Speaker 01: The law, the regulation is clarified just like it is with respect to any regulation or any statute. [01:09:54] Speaker 04: So what's been happening since 2012? [01:09:57] Speaker 04: Well, if I want to put up a sign, is there any limit? [01:10:05] Speaker 01: So it's a 180 day limit. [01:10:07] Speaker 01: It's an across the board limit. [01:10:08] Speaker 01: So you could put up a sign the day before an event and it can be up for 179 days after more than two years. [01:10:15] Speaker 04: The district's been operating under this six month limit, right? [01:10:22] Speaker 04: The event signs as well as not event signs, right? [01:10:25] Speaker 04: All signs stay up for six months. [01:10:29] Speaker 02: That's correct. [01:10:31] Speaker 04: Would it be relevant? [01:10:34] Speaker 04: Whether or not [01:10:36] Speaker 04: the district has any burden to show there's been an aggravation of the litter or aesthetics problem. [01:10:49] Speaker 01: Yeah, I don't think that should be the district's burden at all. [01:10:52] Speaker 01: We've never been asked to compare. [01:10:53] Speaker 04: I'm just trying to understand the district court said self evident in these other cases, there were actual findings by the district court where [01:11:03] Speaker 04: the city or the town and put some evidence forward. [01:11:06] Speaker 04: And I wondered if for the last two years, everything is pretty much the same as it was before. [01:11:16] Speaker 01: Well, as I said, I don't think the district's been even asked to put on that burden. [01:11:22] Speaker 01: I don't think it would be proper for the district. [01:11:23] Speaker 04: I'm just curious about your view, because the district's position throughout this is that it had no burden to introduce any evidence whatsoever. [01:11:32] Speaker 01: Well, right, with respect to the particular interest here, because it is a rather straightforward, common sense interest that even the district court recognized. [01:11:42] Speaker 01: And it is the legitimate choice of the district and its elected representatives to enact laws and regulations designed to protect the public interest, designed to protect [01:11:55] Speaker 01: the aesthetic interest and that should be afforded some respect by the court, we would ask. [01:12:01] Speaker 01: Thank you. [01:12:02] Speaker 01: Thank you. [01:12:02] Speaker 04: Case under advisement.