[00:00:03] Speaker 00: case number sixteen dash thirty zero three the united states of america versus appellate versus david bronstein at l mister lennets for the appellant mister kramer for the appellee good morning good morning honor and may i please the court dan lenners of the united states if i might reserve three minutes for a bottle the district court in this case [00:00:30] Speaker 05: committed error as a matter of law when it held that the terms harangue and oration as used in 40 USC 6134 are unconstitutionally vague. [00:00:41] Speaker 05: And it further erred when it refused to adopt limiting constructions for those terms, as is its duty under the law. [00:00:50] Speaker 05: Both harangue and oration have readily discernible meanings that are not [00:00:56] Speaker 05: do not allow for arbitrary or discriminatory enforcement in the context of speeches given in the Supreme Court building, particularly speeches as the defendants engaged in here given in the Supreme Court building during oral argument. [00:01:12] Speaker 04: Can I ask you a question that's probably irrelevant to the outcome, but I really am curious. [00:01:19] Speaker 04: Why did Congress add harangue and oration, and why did the government charge harangue and oration? [00:01:26] Speaker 05: Your Honor, the legislative history suggests that for rang an oration. [00:01:32] Speaker 05: first appeared in a law applying to speeches given on congressional property in the early 20th or late 19th centuries. [00:01:44] Speaker 05: It was that language that Congress in 1949 then brought forward into the statute at issue. [00:01:52] Speaker 05: The legislative history suggests that Congress understood itself to be prohibiting speeches generally in the Supreme Court. [00:01:59] Speaker 05: That's what both the House and Senate reports reflect. [00:02:02] Speaker 05: It's also in the title of Section 6134, which speaks of speeches in the Supreme Court building at Graff. [00:02:10] Speaker 04: I'm sorry. [00:02:11] Speaker 04: Did the old legislation have a loud utterances provision? [00:02:17] Speaker 05: I'm not sure, Your Honor. [00:02:18] Speaker 05: I believe Congress may have simply. [00:02:24] Speaker 04: It's just too close to the waterfront. [00:02:26] Speaker 05: The loud language provision, Your Honor? [00:02:29] Speaker ?: Yeah. [00:02:30] Speaker 05: That's what the district court thought, and the district court adopted a limiting construction that would prevent, that would apply only to loud language that disturbed or tended to disturb the normal operations. [00:02:42] Speaker 03: But why would it necessarily cover it? [00:02:43] Speaker 03: Because you could have a non-loud speech that's still a disturbing speech. [00:02:48] Speaker 03: Maybe that's what's thought to be covered, is that [00:02:51] Speaker 03: You could have a speech in the Supreme Court during oral argument that somebody might not consider it to be loud, but it's still disturbing because somebody's standing up and giving a speech. [00:03:03] Speaker 05: I agree, Your Honor. [00:03:04] Speaker 05: I'm sorry. [00:03:04] Speaker 05: I didn't mean to suggest that the harangue and oration provisions are somehow redundant of the loud language provision, or that they necessarily cover the same conduct. [00:03:14] Speaker 05: I believe Judge Williams' question was whether precluding loud language runs close to being unconstitutional. [00:03:22] Speaker 04: No, no. [00:03:25] Speaker 04: I was simply trying to see why it was necessary to have. [00:03:29] Speaker 04: But obviously, the thought of it in general, quiet oration. [00:03:32] Speaker 01: Judge Williams had asked also why that was charged, and I was just wondering why the prosecution thought it was necessary here. [00:03:50] Speaker 01: I mean, wouldn't loud utterance have covered what happened? [00:03:55] Speaker 05: It is true that loud utterance covered what happened here. [00:03:59] Speaker 05: The charging history in this case shows that the U.S. [00:04:04] Speaker 05: Attorney's Office charged what is essentially the entire statute. [00:04:08] Speaker 05: As it often does, it charges all of the possible variations of the statute. [00:04:14] Speaker 05: And so the United States Attorney's Office charged [00:04:17] Speaker 05: both making a grand oration and uttering loud, abusive, or I forget the other statutory term, threatening language in the Supreme Court building or grounds. [00:04:28] Speaker 05: And the district court was [00:04:31] Speaker 05: was disturbed by the fact that the U.S. [00:04:33] Speaker 05: Attorney's Office had charged language not at issue, particularly in light of the fact that the defendants challenged – their challenge was based largely on speeches that would be given in the Supreme Court plaza or other aspects that weren't at issue. [00:04:47] Speaker 05: And so the United States [00:04:49] Speaker 05: ultimately amended the information to address only what's at issue here. [00:04:55] Speaker 05: There's no question that what's at issue here is making a harangue or oration. [00:05:00] Speaker 03: Well, let me ask you a question about that, because let's start with harangue. [00:05:03] Speaker 03: So the way you describe harangue, the way you define harangue in your brief, you got a few, but the one you start with is forceful or angry speech. [00:05:13] Speaker 03: Why would you say there's no question that this was forceful or angry speech? [00:05:17] Speaker 03: What is it about those terms that would make it clear to me that it's forceful or angry? [00:05:21] Speaker 05: The manner in which it was given under the undisputed facts show that at the very least it was a forceful speech. [00:05:28] Speaker 05: And what do you mean by forceful? [00:05:30] Speaker 05: That the defendants were standing, that they spoke loudly. [00:05:34] Speaker 05: The undisputed facts are that they spoke loudly, that they disrupted. [00:05:39] Speaker 05: the Supreme Court oral argument at issue. [00:05:42] Speaker 05: Two of the defendants are alleged to have had their fists raised while they gave the speech. [00:05:48] Speaker 05: And so all of this shows that at the very least. [00:05:51] Speaker 03: And how would you define force? [00:05:53] Speaker 03: What's a forceful speech? [00:05:56] Speaker 05: A forceful speech, Your Honor, is I don't have a definition of a forceful speech ready for the court. [00:06:02] Speaker 05: Um, but that doesn't [00:06:07] Speaker 05: It's clear that under these circumstances – Why don't you have a definition? [00:06:10] Speaker 03: Because it seems like if I'm somebody who's trying to understand what the statute covers, I'd want to know what a forceful speech is. [00:06:15] Speaker 03: If that's the definition you go with, we can – I think there's a question about whether that's the right definition to go with. [00:06:20] Speaker 03: But the government started with forceful or angry speech as its principal understanding of harangue, and it just – I guess it wasn't immediately apparent to me what constitutes a forceful speech. [00:06:31] Speaker 05: I think at some point the rabbit hole of going down dictionary definitions to figure out what words mean needs to end. [00:06:39] Speaker 05: The court can't just keep going. [00:06:41] Speaker 04: But it's forceful, a good place to stop. [00:06:44] Speaker 05: Well, it is the core definition of the term harangue across multiple dictionary definitions. [00:06:51] Speaker 05: They all suggest that the term includes some sort of vehemence, some sort of ranting or bombast, all of which are- So I wasn't sure about that because it seems to me that forceful and angry [00:07:05] Speaker 03: I mean, I understand that you could say that sometimes you can look at a particular speech and say that it's forceful. [00:07:10] Speaker 03: When I think forceful, I think of all kinds of things. [00:07:11] Speaker 03: Maybe it's persuasive. [00:07:13] Speaker 03: Some people say forceful is a persuasive speech. [00:07:15] Speaker 03: I'm not sure what an angry speech is. [00:07:16] Speaker 03: I'm not sure whether these were angry speeches. [00:07:18] Speaker 03: I guess one would have to be there to know. [00:07:20] Speaker 03: But you started with that definition. [00:07:23] Speaker 03: There's another definition of harangue that I thought was the first definition in most of the dictionaries, which is speech addressed to the public. [00:07:32] Speaker 05: Yes, Your Honor, that's the first definition given in the dictionaries. [00:07:36] Speaker 05: And the government has recognized that if the court believes that harangue is somehow unconstitutionally vague, that that would be an appropriate limiting construction. [00:07:45] Speaker 03: But why is that a limiting construction? [00:07:47] Speaker 03: Because that's the first definition. [00:07:49] Speaker 03: Correct me if I'm wrong. [00:07:50] Speaker 03: When I looked at the dictionaries, I thought that was usually the first definition, speech addressed to the public or speech to a public assembly, as opposed to [00:07:58] Speaker 03: forceful or angry, which is definitely also in some definitions. [00:08:02] Speaker 03: But I'm not sure why you characterize speech addressed to the public as a limiting construction and forceful or angry as the principal definition. [00:08:11] Speaker 05: The characterization as a speech addressed to the public is limiting insofar as it both needs to be to a public assembly. [00:08:19] Speaker 05: It also addresses what was the district court's concern and what the defendants argue, which is that somehow force and angry are unconstitutionally subjective and leave too much discrimination by police [00:08:36] Speaker 05: in terms of enforcing the statute. [00:08:38] Speaker 05: And so a speech addressed to a public assembly is limiting insofar as it eliminates any possible subjectivity. [00:08:45] Speaker 03: So I guess maybe it's a terminological question, but when I think of limiting construction, and you may be right about this, I guess I'm thinking of something that's not in the definition that serves to limit. [00:08:56] Speaker 03: Whereas it sounds like what you're saying is it's a more limited definition that's also available. [00:09:02] Speaker 05: I think that's correct, Your Honor. [00:09:04] Speaker 05: It's an also available definition that is, in some respects, more limited. [00:09:08] Speaker 03: And why did you start with forceful or angry instead of speech addressed to a public assembly? [00:09:14] Speaker 03: I'm just curious as to why wouldn't one start with speech addressed to a public assembly since that's the first definition? [00:09:22] Speaker 05: I think the U.S. [00:09:24] Speaker 05: Attorney's Office, we've started with the forceful or angry because that largely seems to reflect a general understanding of what the core sense of harangue is. [00:09:34] Speaker 05: That harangue, when used in the common vernacular and when used in the cases cited by the district court, doesn't simply mean a speech addressed to a public assembly. [00:09:43] Speaker 05: It has this element of vehemence or anger. [00:09:46] Speaker 04: It would be astonishing to characterize the Gettysburg Address as a harangue. [00:09:52] Speaker 05: I... Under the modern usage of that term, that's absolutely true, Your Honor. [00:09:58] Speaker 05: Whether or not Harang had a different definition in 1864 is a different question, but it's unquestionably that this element... Or 1945. [00:10:08] Speaker 03: As far as I can tell, the first definition in 1945 of Harang is speech addressed to a public assembly. [00:10:14] Speaker 03: Maybe I'm wrong about that, but I thought that's what the dictionary said at that time. [00:10:19] Speaker 05: I believe that's true, Your Honor, but it also included, I believe it says, I can't remember exactly, but I believe it says especially a vehement or boisterous address. [00:10:30] Speaker 05: And so the especially suggests that that is the core use of that term, the most common usage of that term. [00:10:38] Speaker 05: And in fact, when one looks for the definition of harangue, [00:10:41] Speaker 05: in the English learner's dictionary, which is supposed to be the most plain, direct meaning of the term as it's commonly used, that is a forceful or angry speech. [00:10:52] Speaker 05: And I think the answer to your question about what constitutes force is a level of vehemence, a level of [00:11:07] Speaker 05: of loudness, I guess, as well. [00:11:10] Speaker 05: You know, all of these come into – but whatever the forceful encompasses, it plainly encompasses standing up with your fist raised during a Supreme Court oral argument and saying we rise to defend democracy. [00:11:23] Speaker 03: Is there any speech during – I think this might have been before a Supreme Court argument, but in anticipation of one while the Court was in session. [00:11:31] Speaker 03: Is there any [00:11:32] Speaker 03: speech, any form of speech during that time by a member of the public who's sitting in the gallery that would not be considered forceful? [00:11:44] Speaker 05: I believe that [00:11:52] Speaker 05: A person angrily speaking to themselves while sitting down may not be considered forceful, but would nevertheless be a harangue because the person is exhibiting anger and vehemence. [00:12:05] Speaker 05: But again, as the Supreme Court has constantly cautioned, the fact that there are difficult hypotheticals in this scenario doesn't mean that the statute as written is unconstitutionally vague. [00:12:17] Speaker 03: Yeah, I think that's absolutely, that point is well taken, and of course the fact that there's line drawing issues in many statutes doesn't preclude us from saying the statute is non-vague. [00:12:27] Speaker 03: Just getting a handle on what it means in every instance, which I take it to be the district court's concern and the defendant's argument is the question, because in every instance it has to be forceful or angry, according to your primary definition. [00:12:40] Speaker 05: The district court and the defendant seem to focus on it somehow being wholly subjective. [00:12:46] Speaker 05: as defined as forceful or angry, or when oration is defined as formal. [00:12:51] Speaker 05: And those terms are just plainly not entirely subjective, that they require a speech, as applied in this case, they require that it be in the Supreme Court building, and those themselves are limiting terms, and then they're further limited by the fact that anger or formality are not, [00:13:12] Speaker 05: do not depend on the effect the speech has on the listener. [00:13:16] Speaker 05: People may disagree about whether something shows anger or whether something reflects formality, but unlike annoying or indecent, those aren't wholly subjective depending on the effect on the listener. [00:13:27] Speaker 01: Isn't the question here whether we can determine a core meaning for the particular word [00:13:37] Speaker 05: Well, I think yes, and there obviously is a core meaning for both of these words that the government has posited in terms of all of the dictionary definitions that the district court and the defendants rely on to sort of suggest different definitions in fact converge and have, if it's a Venn diagram, [00:13:56] Speaker 05: a center overlapping piece that involves this element of force or anger. [00:14:01] Speaker 05: Similarly, whatever differences there might be in definitions of oration, which the district court itself understood are similar, the definitions it relied on, have as the center the formal speech element. [00:14:18] Speaker 05: And those are also [00:14:19] Speaker 05: as the court appears to recognize, reflect different possible behavior, which explains why Congress prescribed both pranks and orations. [00:14:29] Speaker 05: They aren't somehow rendering the terms the same. [00:14:34] Speaker 05: And for that reason, because there is this readily discernible core, because it's not entirely subjective, those terms are not unconstitutional. [00:14:43] Speaker 05: They, in the district court, erred in finding that they were. [00:14:45] Speaker 04: In your Venn diagram metaphor, [00:14:49] Speaker 04: Suppose there are definitions of the word, whatever word it is, that actually don't overlap with, suppose there are three definitions that overlap, and a fourth definition in common use, which doesn't overlap with that overlap area. [00:15:12] Speaker 04: What effect does that have? [00:15:14] Speaker 04: That's just treated as a sport, irrelevant? [00:15:18] Speaker 05: I don't think it's irrelevant, but ultimately, the court's judging whether the terms are readily understandable, whether they have specific legal meanings, whether they have statutory definitions, and particularly, given the context of the statute and the conduct at issue. [00:15:39] Speaker 05: And so in the court's hypothetical, [00:15:44] Speaker 05: The court has to use its common sense and look at this context to determine which of the definitions Congress actually intended in context of the statute and what it describes. [00:15:55] Speaker 03: And it doesn't have to be the case that harangue or oration are mutually exclusive, right? [00:15:59] Speaker 03: Because, I mean, it sounds like part of your submission is we need to come up with something that harangue includes that oration doesn't and vice versa. [00:16:09] Speaker 03: I'm not aware of any rule that says that every word in a statutory provision has to have a meaning, independent of every other word in the statutory provision. [00:16:17] Speaker 03: They could be. [00:16:17] Speaker 03: Congress sometimes just acts inclusively to capture a general category here of speeches. [00:16:24] Speaker 05: I agree with that, Your Honor. [00:16:26] Speaker 05: And certainly, it appears that Congress understood harangues and orations to cover the ballpark of speeches. [00:16:34] Speaker 05: There's no suggestion that Congress intended to leave – to not prescribe some form of speech that didn't constitute a harangue or oration and allow that very narrow subset of speeches to be given in the Supreme Court building or on the Supreme Court grounds. [00:16:51] Speaker 05: Certainly, Congress could have used the term harangue, that it understood to mean a speech to a public assembly, and also used oration, even though it maybe was entirely covered by that term, just to make sure it covered everything. [00:17:08] Speaker 05: There are no further questions. [00:17:11] Speaker 01: Thank you. [00:17:18] Speaker 02: Good morning, Your Honors, and may it please the Court. [00:17:21] Speaker 02: I think you've just heard the reason why the district court's argument was correct. [00:17:25] Speaker 02: Almost two and a half years after the information was filed in this case, the government can't give you a definition of the word forceful as applied to a speech. [00:17:33] Speaker 02: What they've said, and that was the only definition they put forth in the district court and in their briefs in this court, was a forceful or angry speech. [00:17:42] Speaker 02: They didn't rely upon a speech to a public [00:17:45] Speaker 02: an address to a public gathering, which I think is the first definition in the Oxford English, but the second definition in Merriam-Webster. [00:17:55] Speaker 02: I think that's the way it came out. [00:17:57] Speaker 02: But what you've heard, I think, when they tried to explain to you a forceful speech, well, having the fist raised means it's forceful, but that's purely, I mean, that's, how would anybody know that having a fist raised is a forceful speech? [00:18:11] Speaker 02: How would anybody? [00:18:12] Speaker 04: It would certainly be a clue. [00:18:13] Speaker 02: I mean you might be raising your hand just to make a point to show that you're convinced of your speech. [00:18:21] Speaker 02: I don't see how that makes it a forceful speech necessarily or how somebody would know in advance that that would make it a forceful speech. [00:18:30] Speaker 02: Also angry speech clearly is in the [00:18:34] Speaker 02: the eye of the beholder. [00:18:35] Speaker 04: Somebody, I mean, I think you can see numerous examples of how somebody might say that person was very angry and somebody else might say no, no, they were perfectly... I think the case is, except the proposition that you have words used that has applied to particular conduct, people can disagree on. [00:18:55] Speaker 04: But the premise of what you're saying now is not sound. [00:19:01] Speaker 02: No, they can disagree, but if there's no standards, there's no settled legal meaning, there's nothing to show, there's no definition, and there's no core – you've just heard there's no core definition of the term, harangue. [00:19:15] Speaker 02: Judge Sterling Varson put forth the public address. [00:19:17] Speaker 02: The government has argued forceful or angry speech. [00:19:20] Speaker 02: There's just no core meaning of either one of these terms. [00:19:23] Speaker 02: That one – a matter of fact, one of the – [00:19:26] Speaker 04: The jury were charged in terms that require all of a number of characteristics. [00:19:34] Speaker 04: It would be, say, speech to assembly, it would be vehement, [00:19:40] Speaker 02: I don't know what vehement means either in the course, in the terms. [00:19:45] Speaker 02: I think that just makes it. [00:19:46] Speaker 02: The problem with the definition of a forceful or angry speech is it just makes it just as vague. [00:19:51] Speaker 02: It doesn't clarify it at all. [00:19:54] Speaker 02: Same thing with oration. [00:19:56] Speaker 02: I think the district court was absolutely right about that. [00:19:59] Speaker 02: I mean, annoying, if annoying conduct is vague, it doesn't seem to me forceful or angry has any better definition than annoying. [00:20:08] Speaker 04: And knowing depends significantly on the reaction of the listener. [00:20:14] Speaker 02: Well, the only way to tell in many cases if somebody is angry is the reaction on the listener. [00:20:19] Speaker 02: You can sometimes tell somebody can demonstrate anger. [00:20:22] Speaker 02: Somebody could in a very soft voice say something, and that would take into account this maybe to their kids. [00:20:29] Speaker 02: And the subjective, because the kids know that that's anger, but somebody looking at it, it's an entirely subjective test. [00:20:37] Speaker 04: You're going to put in cases where it begins to get ambiguous. [00:20:43] Speaker 04: That doesn't get you where you need to go. [00:20:46] Speaker 02: It's not ambiguous. [00:20:47] Speaker 02: It just has no set legal meaning. [00:20:50] Speaker 02: The word forceful. [00:20:50] Speaker 02: The government stood up and said we have no definition for the word forceful. [00:20:54] Speaker 02: Two years after they put forth this as the definition for the word harangue. [00:21:00] Speaker 04: Your brief discards the court's examples of substantial risk in Johnson. [00:21:16] Speaker 04: about those terms not being too vague, contrasting them with the type of risk that was assessing in that case. [00:21:29] Speaker 04: It clearly was supposed to cover hundreds of possible scenarios. [00:21:34] Speaker 02: It clearly was dictor. [00:21:36] Speaker 02: I mean, it was addressing an argument that the dissent raised. [00:21:41] Speaker 04: But I mean, when a court draws a distinction between A and B, it puts B on the OK side of the line, and A holds that A is on the wrong side of the line. [00:21:54] Speaker 04: That may be dictum in some technical sense, [00:21:57] Speaker 02: But what they said was that's those terms are applied to a specific Conduct on a particular occasion not as a general term that doesn't know the case here Well, then that's the true of every statute every statute is applied to an individual case obviously [00:22:27] Speaker 02: Well, no, there was just one scenario which otherwise involves conduct that presents a serious potential risk of physical injury. [00:22:36] Speaker 04: Conduct in question could be all kinds. [00:22:41] Speaker 02: Well, the conduct in question in this case and every other case can be all kinds. [00:22:46] Speaker 02: In the case of the annoying conduct, [00:22:50] Speaker 02: It could be any kind of conduct that takes place. [00:22:54] Speaker 02: The problem was what's annoying is the problem. [00:22:58] Speaker 02: There's clearly conduct that is annoying. [00:22:59] Speaker 02: As I said, in the case of spitting in somebody's face, it's clearly annoying. [00:23:06] Speaker 04: the late 1800s, 1949, the present, what period should be relevant? [00:23:19] Speaker 04: I mean, someone getting up to the rank of Supreme Court in whatever it was, 2013, 2014, is presumably [00:23:30] Speaker 04: a person living in 2014 and engaging in conversation and so forth in that year and it is probably not a scholar of ancient meanings. [00:23:42] Speaker 04: So are the old [00:23:47] Speaker 04: I mean, of course, the OED is wonderful because it gives the first use, although it doesn't port to say frequency of use at any particular period, but what should control [00:24:02] Speaker 02: Well, that's the problem in this case, I think, is you have a term from the 18th century that was just incorporated in 1945 with, I think, no explanation in the legislative history as to what it meant. [00:24:14] Speaker 02: And so how can somebody now know what it means, given that there's no core meaning? [00:24:23] Speaker 04: language, generally. [00:24:25] Speaker 04: People that operate in the world have to know the relevant language. [00:24:30] Speaker 02: Well, the problem with that is the Oxford English Dictionary said that formally, the word harangue meant a formal or pompous speech. [00:24:40] Speaker 02: That was the former definition in the Oxford. [00:24:43] Speaker 02: Do you agree that it wouldn't discard that? [00:24:46] Speaker 02: Well, if you're asking what it meant in the 18th century, maybe even 1945, that may be what it meant then. [00:24:52] Speaker 03: Which Oxford Dictionary are you talking about? [00:24:54] Speaker 03: What year? [00:24:56] Speaker 03: I'm sorry. [00:24:57] Speaker 03: Because if it was in 1945, then that would have been the relevant time. [00:25:01] Speaker 02: No, I'm sorry. [00:25:01] Speaker 02: That's the current definition. [00:25:03] Speaker 02: It says formally a formal or pompous speech was the former definition. [00:25:16] Speaker 02: Yes, yes. [00:25:18] Speaker 02: But again, I don't know what either one of those means. [00:25:22] Speaker 02: I mean, when the government stands up and says, we can't define for you what a forceful speech is, that seems to me to almost end the inquiry. [00:25:31] Speaker 02: If they can't even, as I said, they've charged it. [00:25:33] Speaker 02: That's the definition they picked. [00:25:35] Speaker 02: They did not pick the public address definition. [00:25:37] Speaker 03: Well, what's wrong with that one? [00:25:38] Speaker 03: If it's a speech addressed to a public assembly, let's just suppose, I know that there's a question about whether that's the relevant one. [00:25:45] Speaker 03: But if we think about that meaning of harangue, which is a meaning of harangue, you wouldn't disagree with that. [00:25:49] Speaker 03: It is a meaning of harangue in the dictionaries. [00:25:51] Speaker 03: What's vague about that? [00:25:53] Speaker 02: It's also a meaning of oration, I might say. [00:25:56] Speaker 03: Yeah, which is a good one. [00:25:57] Speaker 03: I don't know which way that cuts. [00:25:58] Speaker 03: That may be a good thing, that it covers both. [00:26:02] Speaker 02: It's a meaning. [00:26:03] Speaker 02: What I think the problem is is what you're demonstrating is that there's no core meaning of the word harangue. [00:26:08] Speaker 03: Right. [00:26:09] Speaker 03: So I understand that point, which is that how do we know that that's the relevant definition? [00:26:12] Speaker 03: It could be one of the others. [00:26:14] Speaker 03: But let's just assume that all away. [00:26:16] Speaker 03: And I get that that's an obstacle. [00:26:17] Speaker 03: But if we focus on that particular definition, what is vague about that definition? [00:26:22] Speaker 02: a speech to a public. [00:26:24] Speaker 02: It's not even clear to me what a speech means in this context. [00:26:28] Speaker 03: That seems tough. [00:26:30] Speaker 03: That seems tough, making up a speech. [00:26:31] Speaker 02: Well, it was interesting when the Chief Justice said if anybody else wants to talk, [00:26:37] Speaker 02: in the courtroom while the court's in session, you could be held in contempt. [00:26:42] Speaker 02: He didn't say if anybody wants to give a speech, a harangue or oration. [00:26:46] Speaker 03: I don't know that we can expect the Chief Justice on the spur of the moment to be quoting the statute. [00:26:51] Speaker 03: He's just speaking colloquially about what's at issue. [00:26:54] Speaker 03: I think it's interesting to me that the statute speaks in terms of making a harangue or oration. [00:26:59] Speaker 03: We're not just talking about speech, the act of expressing oneself. [00:27:02] Speaker 03: We're talking about making something. [00:27:05] Speaker 03: If we just focus on making a speech, and we say making a speech to the public, is there anything vague about that? [00:27:12] Speaker 03: You have another argument, which is that doesn't cure anything, because how do we know we're supposed to focus on that definition? [00:27:17] Speaker 03: But I guess I'm assuming that away just for arguments purposes and just looking at that understanding. [00:27:23] Speaker 02: Remembering the preface that that's not the definition the government has pursued, I think that making a speech could be, it's closer, let me put it that way. [00:27:35] Speaker 02: A speech, I mean, if you stand up and just say, which is what I think they said, Citizens United bad, that's not clear to me, that's a speech at all. [00:27:46] Speaker 02: And so I don't see how the definition [00:27:49] Speaker 02: A speech, it seems to me, has a beginning where you're setting forth the subject matter. [00:27:55] Speaker 02: It has a middle where you talk about it and a conclusion that you reach from it. [00:27:59] Speaker 02: If that's one definition of speech, honestly, I didn't look up the definition of speech because the government has never pursued that as the... Well, they did pursue it as a fallback definition. [00:28:11] Speaker 03: They say that, they call it a limiting construction, but they do say one understanding that the court could adopt is a speech addressed to a public assembly. [00:28:19] Speaker 02: They, throughout the district court and this court, they argued for a forceful or angry speech as the definition. [00:28:26] Speaker 02: They did try to limit it at one point, but they didn't say that that was, they tried to limit it to either a speech addressed to a public assembly or forceful or angry speech that tends to disturb. [00:28:41] Speaker 02: So even then, they waffled and they said, [00:28:45] Speaker 01: I'm sorry. [00:28:46] Speaker 01: You keep saying that there is no core definition here. [00:28:52] Speaker 01: But in fact, if you look at every definition somewhere in there, you get forceful or angry speech, noisy, bombastic, ranting speech. [00:29:04] Speaker 01: In fact, [00:29:05] Speaker 01: Rand is used to describe harangue in just about every definition. [00:29:11] Speaker 01: Why doesn't that show that there is a core definition for that? [00:29:16] Speaker 02: If the core definition is ranting speech, again, that's not a definition the government argued. [00:29:22] Speaker 02: I don't know what ranting it seems to be has. [00:29:25] Speaker 02: Ranting is really subjective in the eyes of the [00:29:28] Speaker 02: listener. [00:29:30] Speaker 02: Somebody could talk and think that they're very lucid and the person listening would think this is just ranting. [00:29:36] Speaker 02: This doesn't make any sense at all. [00:29:38] Speaker 01: So I don't think that... But words are never, are rarely absolutely precise unless you're using some kind of [00:29:47] Speaker 01: um... scientific term perhaps that has a completely precise and unitary meaning so it's never the case uh... that that words don't have [00:30:00] Speaker 01: a series of other words that are synonyms or give you some idea of what that word means. [00:30:07] Speaker 01: So how would you ever do it? [00:30:10] Speaker 01: I mean, I've heard you say, I don't understand speech in this context. [00:30:14] Speaker 01: I don't know what formal is. [00:30:17] Speaker 01: I'm at a loss to understand how we would describe this in a way that you wouldn't find vague. [00:30:26] Speaker 02: Well, first of all, I'm not the only one that's at a loss. [00:30:28] Speaker 02: The government was also at a loss to define for you the term. [00:30:33] Speaker 02: But second, I think that it fits in with the cases – the Supreme Court, like in Gentile, where they held general and without elaboration is void for vagueness. [00:30:44] Speaker 02: Annoying is void for vagueness. [00:30:46] Speaker 02: Contemptuously, [00:30:48] Speaker 02: is void for vagueness, they said, because it doesn't set any standards, and it allows for discretionary enforcement. [00:30:56] Speaker 02: They also said loitering is a term, which is, Justice Thomas pointed out, is a term that's been used for centuries in the criminal law. [00:31:03] Speaker 02: They said it was void for vagueness. [00:31:05] Speaker 02: So I don't see how it's any different than these unjust or unreasonable rates, annoying. [00:31:10] Speaker 02: I don't see how it's any different than a number of cases, and in fact, maybe less [00:31:15] Speaker 02: core meaning and less well-defined than the case in the words. [00:31:21] Speaker 01: But it seems to me you've got two things here. [00:31:23] Speaker 01: One is you've got whether you can discern a core meaning, which if you looked at all the [00:31:31] Speaker 01: definitions, you probably could, but you've also got context, which is, I think, the point that they were making in Johnson, right? [00:31:39] Speaker 01: That you can, if you're looking at specific conduct, figure out whether this is prohibitive, but you don't agree with that. [00:31:48] Speaker 02: I don't think that's the point they were making in Johnson. [00:31:51] Speaker 02: They said [00:31:54] Speaker 02: Because of the way they had interpreted the residual clause of the Armed Career Criminal Act, it came to be what occurred in the ordinary course of an offense. [00:32:04] Speaker 02: And they said, we can't determine what happens in the ordinary course to go with the possibility of presents a risk of physical injury. [00:32:14] Speaker 02: And they said, we can't determine that. [00:32:18] Speaker 01: I understand you think that what they said about substantial risk was just dicta, but they did tie that to it having a context, correct? [00:32:27] Speaker 02: They tied it to conduct. [00:32:30] Speaker 02: I'm sorry. [00:32:30] Speaker 02: I'm sorry. [00:32:31] Speaker 01: But you're saying that someone who is in the Supreme Court with the argument beginning, who has already been instructed, sit down and be silent. [00:32:45] Speaker 01: would not have an idea that what they were doing created a disruption or a problem, but they would have to know that it was a harangue or an oration. [00:33:01] Speaker 02: Well, that's what they were charged with. [00:33:02] Speaker 02: They could have been charged with regulation five, which is much clearer about a noise. [00:33:07] Speaker 01: But they were charged under the statute, and the statute includes [00:33:11] Speaker 01: I guess, loud, abusive, threatening language, correct? [00:33:16] Speaker 02: It also includes discharging firearms and fireworks. [00:33:19] Speaker 01: Well, then we know they didn't do that. [00:33:21] Speaker 02: Right. [00:33:21] Speaker 02: But I mean, it's a strange mishmash of a statute. [00:33:26] Speaker 02: It's firearms, fireworks, or explosives setting a fire or making a harangue or oration or uttering a loud, threatening or abusive. [00:33:35] Speaker 02: I mean, there's [00:33:37] Speaker 02: I think this – yes, the simple answer is before you can be charged with a crime and there's a heightened standard for both criminal statutes and for where they impinge on First Amendment rights, you have to know that you – you have to be given fair warning that your conduct is illegal. [00:33:56] Speaker 02: They were – I think regulation five comes much closer. [00:34:00] Speaker 02: giving fair warning about it because it defines a noise as disturbing the Supreme Court. [00:34:06] Speaker 02: This contains – this statute contains nothing about disturbing the Supreme Court or anything about that. [00:34:14] Speaker 02: All it does is say, make a harangue or oration. [00:34:17] Speaker 02: So, yes, I think before you can be charged with a crime, you have to begin fair notice of your conduct. [00:34:23] Speaker 02: They may have had fair notice that their conduct was prohibited by regulation five. [00:34:29] Speaker 02: I don't think they had any fair notice that a harangue, their conduct was prohibited by this statute. [00:34:34] Speaker 03: I mean, it seems to me that at least on – I understand your argument that the terms harangue or oration, and maybe especially harangue, [00:34:41] Speaker 03: that there's some potential ambiguity around that so that one might not know exactly when you give a speech that qualifies not just as a speech, but as an angry speech. [00:34:50] Speaker 03: Maybe what I just said was angry. [00:34:52] Speaker 03: I don't know. [00:34:52] Speaker 03: It depends on what you think. [00:34:54] Speaker 03: I didn't think so, but that's how subjective it is. [00:34:59] Speaker 03: But I guess what's interesting about this is that the supposition is that [00:35:07] Speaker 03: You can, apparently, give a speech. [00:35:10] Speaker 03: You just can't give a speech that qualifies as a harangue or oration. [00:35:15] Speaker 02: Let me put it this way. [00:35:17] Speaker 02: This statute doesn't forbid that. [00:35:21] Speaker 02: I think Regulation 5 forbids that. [00:35:22] Speaker 03: Yeah, there may be other prohibitions against saying anything at all. [00:35:25] Speaker 02: When you say you can't, you can do it under this statute. [00:35:28] Speaker 02: I think that's correct, but not under another statute. [00:35:32] Speaker 02: But the government has it. [00:35:33] Speaker 02: insisted on haranguing going forward with the haranguing and oration charge. [00:35:39] Speaker 03: Now on the part of the exchange with Judge Brown about disturbing the Supreme Court, a Supreme Court oral argument could be considered an oration. [00:35:49] Speaker 03: But nobody, I take it nobody thinks that the statute prohibits that because that's entirely consistent with what goes on in the Supreme Court. [00:35:57] Speaker 03: So it seems like what's embedded within the statute is a notion that the corpus of matter that's prohibited is something that disrupts the Supreme Court. [00:36:07] Speaker 03: Because otherwise there's all kinds of things that could fall within the statute but nobody thinks they do because it doesn't disrupt the Supreme Court. [00:36:14] Speaker 02: Well, I mean, there could be many things not in the courtroom. [00:36:17] Speaker 02: Like on the plaza, usually after oral arguments, lawyers hold press conferences. [00:36:21] Speaker 02: And I think there's been many a forceful or angry speech out there on the plaza given by litigants, both the lawyers and the parties, that nobody's ever said, which clearly are forbidden under the government's definition. [00:36:37] Speaker 02: They're both [00:36:38] Speaker 02: under the government's definitions, both harangues and orations that are never forbidden. [00:36:43] Speaker 02: Some of those are even in the building. [00:36:45] Speaker 02: And there may even be, in the courtroom, whispered back and forth, people talking about while an argument's going on that doesn't disturb, that could clearly be classified, I think, as a harangue or an oration. [00:37:00] Speaker 02: So it's just – it's the imprecision of the definition – not imprecision, but the lack of a core. [00:37:07] Speaker 02: There's no settled – there's no legal definition. [00:37:09] Speaker 02: There's no real settled case law definition. [00:37:12] Speaker 02: The – and there's certainly no core meaning as we've discussed the different definitions. [00:37:20] Speaker 02: come up to a core meaning. [00:37:21] Speaker 02: Yes, there's different definitions, but that's the problem in the case. [00:37:25] Speaker 02: There's different definitions, and there's no core definition. [00:37:29] Speaker 04: Well, you can at least imagine a composite definition that has characteristics A, B, and C, right? [00:37:36] Speaker 04: And one could say that it's certainly a rang that it has all those characteristics. [00:37:43] Speaker 02: Well, that's not a core meaning, though. [00:37:45] Speaker 02: That's giving it multiple meanings and saying it has. [00:37:48] Speaker 04: No, it's an intersection. [00:37:52] Speaker 02: It's not an intersection. [00:37:53] Speaker 04: In other words, if the jury is required to find A, B, and C, then you've got a core. [00:38:00] Speaker 02: I think that's a multiplicity, not a core. [00:38:04] Speaker 04: No, not as I proposed the charge to the jury. [00:38:08] Speaker 02: I understand, but now you're allowing the jury to convict on different than different meanings. [00:38:17] Speaker 02: I mean, there's lots of meanings. [00:38:19] Speaker 02: And now you're saying any one of those meanings. [00:38:21] Speaker 02: That's the problem. [00:38:22] Speaker 04: Now, quite the opposite of my offering this possibility is that the jury has to find A, B, and C in order to convict under harangue. [00:38:35] Speaker 02: I mean, I disagree with that, that that would solve it, but it doesn't take away also the subjectiveness of the terms. [00:38:44] Speaker 02: It doesn't – like forceful and angry and bombastic. [00:38:47] Speaker 03: I'm telling you, your argument is as long as forceful and angry is in there anywhere, whether it's one of four elements or one of one, it's still subjective, and therefore – [00:38:55] Speaker 02: Sure, if the jury's going to be instructed, they have to follow ranting. [00:38:59] Speaker 02: I mean, I think you have to include everything, then bombastic and ranting and pompous and those are all subjective. [00:39:08] Speaker 03: Pardon me? [00:39:09] Speaker 03: I don't know about that. [00:39:10] Speaker 02: Well, there are all the definitions. [00:39:12] Speaker 02: And if you're going to include every definition, you have to include vehement and all those words. [00:39:17] Speaker 02: And that clearly is subjective for the jury. [00:39:21] Speaker 02: You could maybe define it. [00:39:23] Speaker 02: You have to find. [00:39:25] Speaker 02: That's the things you have to find. [00:39:26] Speaker 02: But how would you ever define those terms for the jury that they have to find that it was? [00:39:31] Speaker 02: What does vehement mean? [00:39:32] Speaker 02: What does bombastic mean? [00:39:33] Speaker 02: What does ranting mean? [00:39:34] Speaker 02: What does formal mean, forceful? [00:39:37] Speaker 02: That's the problem. [00:39:38] Speaker 02: How would you ever define that for the jury? [00:39:41] Speaker 02: Thank you. [00:39:43] Speaker 01: Thank you. [00:39:50] Speaker 01: You actually had no time left, but we'll give you two minutes of rebuttal time. [00:39:55] Speaker 05: Thank you, Your Honor. [00:39:56] Speaker 05: I appreciate it. [00:39:56] Speaker 04: Let me give you a hypothetical. [00:39:58] Speaker 04: Suppose in 1949, Iran had meaning A, and today it has meaning B, which does not overlap at all with the 1949 concept. [00:40:14] Speaker 04: But can a person be sent to prison on that basis? [00:40:18] Speaker 04: I'm not saying this is the case. [00:40:20] Speaker 04: This is a hypothetical. [00:40:21] Speaker 05: Under that hypothetical, I believe one would look at Congress's intent in enacting a statute for what the core concept of the word means. [00:40:35] Speaker 05: Well, notice clearly goes beyond simply reading the statute and deciding what it means. [00:40:42] Speaker 05: The notice, as the Supreme Court understands it, implies routine legal usage. [00:40:48] Speaker 05: It encompasses the context. [00:40:51] Speaker 04: Is there a connection to rushing back to the OED to see what it covered 60 years before? [00:41:00] Speaker 05: not that I'm aware of, but I'm also not aware of a case in which defendants have argued that they simply don't understand what the terms mean, sort of writ large, because they look at different dictionary definitions. [00:41:13] Speaker 05: And as the court recognized, that's not at issue here, as we point out in our briefs. [00:41:18] Speaker 05: The meanings of harangue and oration are [00:41:20] Speaker 05: essentially unchanged since Congress enacted this statute in 1949. [00:41:25] Speaker 03: Well, can I ask you this? [00:41:27] Speaker 03: So it seems to me that under your understanding, if we go with forceful and angry, let's just go with forceful. [00:41:31] Speaker 03: Forceful are angry, I think. [00:41:33] Speaker 03: If we go with forceful or angry, it's okay to give a speech. [00:41:36] Speaker 03: It's just not okay to give a forceful or angry speech. [00:41:38] Speaker 03: That has to be your understanding of the statute. [00:41:42] Speaker 05: Well, you also can't use loud language. [00:41:44] Speaker 03: I get that. [00:41:44] Speaker 03: No, I'm talking about this. [00:41:46] Speaker 03: I'm talking about this part of the statute just on harangue. [00:41:49] Speaker 03: Your position is the statute doesn't bar the making of a speech. [00:41:53] Speaker 03: It bars the making of a forceful or angry speech. [00:41:56] Speaker 05: Yes, Your Honor. [00:41:57] Speaker 03: Right. [00:41:57] Speaker 03: And so when the Supreme Court gets gaveled in, under this statute, there may be other prohibitions, but under this statute, your view is somebody can make a speech, but they can't make a forceful or angry speech. [00:42:10] Speaker 03: even when the Supreme Court has gaveled in? [00:42:12] Speaker 05: Well, again, Your Honor, under solely the term harangue, that may be true. [00:42:18] Speaker 05: But there are other words used in the same exact statutory provision that bar loud language, abusive language. [00:42:24] Speaker 03: Right. [00:42:24] Speaker 03: I understand that. [00:42:25] Speaker 03: But the way this case comes up, you're the one who brought the appeal. [00:42:28] Speaker 03: The appeal is only on harangue or oration. [00:42:30] Speaker 03: Yes, Your Honor. [00:42:31] Speaker 03: Right. [00:42:31] Speaker 03: And so we're only talking about that component of the statute. [00:42:33] Speaker 03: So what is Congress thinking [00:42:36] Speaker 03: when they say, actually, it's OK to give a speech. [00:42:40] Speaker 03: You just can't give a forceful or angry speech. [00:42:44] Speaker 05: Well, Congress doesn't appear to have been thinking that. [00:42:46] Speaker 05: Congress appears to have thought that harangue or oration covered the field of speech. [00:42:51] Speaker 03: Of speeches, which is broader than forceful or angry speeches or formal speeches. [00:42:56] Speaker 05: Although arguably formal, forceful, or angry covers and loud language does cover the field when taken together. [00:43:05] Speaker 03: But then your definition would be speeches. [00:43:08] Speaker 03: Your understanding of harangue or oration together would be the making of a speech. [00:43:12] Speaker 03: But that's not the way you've constructed it because [00:43:16] Speaker 03: even the way you, the most capacious understanding you put forward of those terms put together, they would still leave some speeches that could be given under this statute. [00:43:24] Speaker 03: There may be other prohibitions against doing that, I get that. [00:43:28] Speaker 03: But under this part of this statute, there would be some speeches that could be given. [00:43:32] Speaker 03: And it may be that that's the case. [00:43:34] Speaker 05: That is the end result of the government's proposed definitions. [00:43:37] Speaker 05: The court disagrees and thinks that Congress meant to preclude all speeches and that harangue [00:43:42] Speaker 05: under its definition of an address or oration or a speech addressed to a multitude meant to encompass all speeches, that's a definition the government could certainly live with in this case. [00:43:53] Speaker 01: Isn't the problem here that you actually, the coverage of this statute is broader than just a session of the Supreme Court, right? [00:44:03] Speaker 01: It's the grounds, the area outside, and in context that might be different. [00:44:11] Speaker 01: I mean, any speech that interrupts an oral argument might be considered, you know, there would be a reason why you were doing it presumably. [00:44:23] Speaker 01: On the other hand, if you were outside or you were talking to the press, [00:44:27] Speaker 01: that context might be different, or would you? [00:44:30] Speaker 05: I agree with that, Your Honor, and I agree that the Court need not consider the context of what Congress intended to prescribe on the Supreme Court plaza. [00:44:39] Speaker 05: Congress had good reasons. [00:44:40] Speaker 03: So you agree that any speech given after the Court has come into session is forceful or angry? [00:44:49] Speaker 03: By definition, any speech? [00:44:51] Speaker 05: Or formal, Your Honor, or loud language. [00:44:54] Speaker 03: I don't think you can use loud language because that's not even part of the case before us on appeal. [00:44:59] Speaker 03: Am I right about that? [00:45:01] Speaker 05: It is not, Your Honor. [00:45:02] Speaker 03: Okay, so we're only talking about harangue or oration. [00:45:05] Speaker 03: So your view is that when you're talking about a situation in which a Supreme Court has been gaveled into session, the making of any speech is necessarily the making of a forceful or angry speech. [00:45:16] Speaker 03: Maybe that's, I'm actually answering the question, not because I mean to be rhetorical and obvious, because I'm not. [00:45:22] Speaker 03: I'm just curious to understand what your view is. [00:45:30] Speaker 05: I wrestled with the same question the court is asking, which is whether Orang and Oration cover every speech or whether there's some sliver left. [00:45:38] Speaker 05: As it was argued below and has been presented to this court, it appears that there might be some sliver left. [00:45:44] Speaker 05: Whether, in this very specific context of whether after the Supreme Court has been gaveled in, whether there's some speech that could be made that's neither forceful, angry, nor formal, [00:45:56] Speaker 05: I have trouble envisioning what that speech would look like, given the context of the court having instructed everyone to be silent, to sit down, being instructed very specifically on how to leave, the order and decorum that is inherent in the nature of the session of the Supreme Court. [00:46:13] Speaker 05: I think, in fact, those terms may cover the field in that context. [00:46:17] Speaker 05: And again, if the court believes that harangue meant to cover all speeches addressed to an assembly, [00:46:22] Speaker 05: which the government proposes a limiting construction that's not necessarily limiting, that's certainly something that the government could look up here. [00:46:29] Speaker 05: If I might just briefly address my embarrassing failure to be able to define forceful, which is certainly something I'll be worrying about for the next week, and my opponent rightfully pointed out something like 12 times I failed to do, there are certainly available definitions to the court. [00:46:44] Speaker 05: vehement, loud, some combination of vehement and loud. [00:46:48] Speaker 05: But regardless, it's not a wholly subjective definition. [00:46:53] Speaker 05: And as the Supreme Court recognized in Johnson, as a general matter, we do not doubt the constitutionality of laws that call for application of a qualitative standard, in that case such as substantial risk to real world conduct. [00:47:07] Speaker 05: And that's exactly what the definition of forceful or angry speech does here. [00:47:11] Speaker 05: It applies a qualitative standard to real-world conduct, in this case, giving a speech during a session of the Supreme Court. [00:47:18] Speaker 05: Thank you. [00:47:19] Speaker 01: Thank you. [00:47:21] Speaker 01: Case will be submitted.