[00:00:03] Speaker 00:
Case number 19-1234.

[00:00:06] Speaker 00:
Philip Lawrence Sundell, petitioner versus United States of America.

[00:00:11] Speaker 00:
Mr. Sundell for the petitioner, Mr. Smith for the respondent.

[00:00:15] Speaker 00:
Mr. Sundell, good morning.

[00:00:17] Speaker 03:
Good morning, Judge.

[00:00:19] Speaker 04:
If you'll proceed.

[00:00:21] Speaker 03:
Thank you.

[00:00:22] Speaker 03:
May it please the court.

[00:00:24] Speaker 03:
The judge below denied a U.S.

[00:00:26] Speaker 03:
citizen the right to attend a U.S.

[00:00:28] Speaker 03:
criminal proceeding in the United States.

[00:00:31] Speaker 01:
Can I stop you right there?

[00:00:32] Speaker 01:
Can I stop you right there, Mr. Sindel?

[00:00:36] Speaker 01:
I don't think it's a criminal proceeding.

[00:00:39] Speaker 01:
It's a military tribunal of an enemy combatant while the war is still going on.

[00:00:49] Speaker 01:
And I guess my question is, let's assume that we get past the procedural stuff and we have to decide whether there's a qualified First Amendment right

[00:01:03] Speaker 01:
So we're kind of not as far to the end of the analysis as deciding how we would apply a qualified First Amendment right, narrow tailoring, et cetera.

[00:01:13] Speaker 01:
But we are past the procedural stuff.

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Is there a qualified First Amendment right for a member of the public to watch a military tribunal of an enemy combatant while the war is still going on?

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And the answer to that has to be an inquiry into history and experience.

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And in the Revolutionary War, we had such tribunals.

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And my understanding is they weren't open to the public.

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Andrew Jackson had such tribunals.

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My understanding is they weren't open to the public.

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In World War II, we had such tribunals.

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And my understanding is they weren't open to the public.

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So I guess my question to you is, during that time frame, it's 170 years or so

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the first 170 years of the country, do you know of any examples that you can give us where a military tribunal of an enemy combatant, foreign enemy combatant, during the war, where a court held that a member of the public has a First Amendment right to watch that, even if it's unclassified, a First Amendment right to watch that?

[00:02:28] Speaker 03:
Your Honor,

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Would submit two things on that issue.

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The first is that The closest analogy is other military criminal other military tribunal proceedings such as courts martial

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and courts-martial, in fact, have no history of being closed proceedings.

[00:02:54] Speaker 01:
Can you tell me why that's the best analogy and not other military tribunals of enemy combatants while the war is still going on?

[00:03:02] Speaker 03:
Well, as far as other military commissions, I believe that Civil War military commissions were open

[00:03:15] Speaker 03:
I don't know of any indication that they were closed.

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Now granted, this court and the Supreme Court have acknowledged that there are differences, subject matter differences to some degree with Civil War commissions.

[00:03:32] Speaker 01:
Can I interrupt for a second so that I can ask some questions about what you just said?

[00:03:36] Speaker 01:
The Civil War commissions would not have been foreign enemy combatants.

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They would have been American citizens.

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And that seems like a difference.

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But in addition, if you're talking about the Booth conspirators and the Andersonville war crimes trials, those happened after the war had ended.

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I know there were some during the war, but can you talk to me about them and also why the distinction between Al-Khosey being a foreigner and the civil war concerning American citizens, why that distinction shouldn't matter?

[00:04:10] Speaker 03:
Well, the First Amendment right, the public First Amendment right to attend is sensitive to circumstances like that.

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But there's nothing about the nature of the defendant that any court has, that I'm aware of, has ever pointed to, to say that there is not a First Amendment right to attend.

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It's the nature of the proceeding.

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It's the need and the right of the citizenry to monitor government activities, particularly with respect to proceedings like this that are judge alone.

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Military commissions, whatever they may be, can result in a death sentence.

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So whether or not they're technically criminal proceedings, they certainly, military proceedings have always been reviewed as criminal proceedings.

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The due process app review standard is that of a criminal proceeding.

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This court has acknowledged that the military commissions here, because most of them are death eligible proceedings,

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are subject to the appropriate standard of review for a death eligible proceeding.

[00:05:28] Speaker 01:
Mr. Sandela, I'm not sure that I agree with you that the same due process rights, the exact same due process rights that apply to

[00:05:35] Speaker 01:
a federal criminal trial also apply in a military tribunal of an enemy combatant, of a foreign enemy combatant while the war is still going on.

[00:05:45] Speaker 01:
But even if they do, we're not talking about the defendant's due process, right?

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We're talking about the public's First Amendment right to watch.

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And I can't think of- May I come in at that point?

[00:05:56] Speaker 01:
Yes, please.

[00:05:57] Speaker 01:
Yes, please.

[00:05:58] Speaker 05:
I happen to agree with the line of questioning my new colleague has presented.

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But I have a precursor question.

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Why do you have prudential standing to sue as a member of the public?

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Petitioner is a member of the public.

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Petitioner has never had... That's you, right?

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It's me.

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I just feel odd referring to myself in the first person.

[00:06:29] Speaker 05:
Well, because if you were counsel to some defendant before the commission, you would have an entirely different position.

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But I'm trying to understand, you are challenging the government's policy.

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The government's policy is that they do not wanna open these proceedings, right?

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And they don't wanna make an exception because any individual has a clearance.

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So you're challenging the government's policy, right?

[00:07:01] Speaker 05:
Wait a minute, you're challenging the government's policy

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and you're purporting to be a member of the public, but you're not a member of the public.

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You're indeed a government lawyer.

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If you were right that any government lawyer could step out of his or her government position and sue the government as a member of the public in a situation like this, then any lawyer in the national security division could be crawling, could be in court challenging the national security divisions

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position on this case, right?

[00:07:38] Speaker 03:
Your Honor, I have no official role in this case whatsoever.

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So I have not waived my status.

[00:07:46] Speaker 05:
I'm not suggesting to you.

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But if you were right, any lawyer in the Justice Department could appear in this court asserting the right as a member of the public, challenging the Justice Department, right?

[00:08:01] Speaker 03:
Yes, I do not believe that accepting government employment renders me not a member of the public for all purposes.

[00:08:11] Speaker 05:
For certain purposes, you're certainly a member of the public.

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There's no question.

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If you made a speech on a certain subject, then there would be a question of First Amendment protection and a sort of practical accommodations made.

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But you're not doing that.

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You're suing, as a member of the public, the government.

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for my First Amendment right to attend.

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But if that's true, any lawyer in the Justice Department or all the lawyers in the Justice Department could come in challenging the position of the National Security Division, right?

[00:08:46] Speaker 05:
On the grounds that they're members of the public.

[00:08:49] Speaker 03:
I think that is correct in their individual capacity under their First Amendment right as members of the public.

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Yes, I think that is right.

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They could.

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I do not believe that my

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that the status of government employment renders the First Amendment inapplicable to someone.

[00:09:09] Speaker 05:
Council, you're overstating.

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I didn't say the First Amendment is inapplicable.

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The question is, in this context, can you rely on the public's First Amendment rights?

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Why are you bringing this case?

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What's the reason?

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I'm sorry?

[00:09:29] Speaker 05:
Is there a backstory here?

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There is not a backstory.

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I had an interest in attending the proceedings.

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And I sought to attend, and I was told that I was not allowed to attend.

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And I believe that that's a violation of my constitutional right to attend public proceedings.

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The government has always treated military commissions in general and these proceedings specifically as public.

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There were media advisories, there's transmission of the hearings to remote viewing locations in the United States.

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So I don't believe that the Supreme Court looks to the nature of the proceeding to determine if there is a public right to attend.

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It does not look to

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the type of evidence that is being presented, except with respect to whether there is a compelling interest.

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So yes, I believe that a government employee who does not have an official role in a proceeding retains his or her First Amendment right to attend public proceedings.

[00:10:42] Speaker 05:
And I believe... It's not just attend, it's also to challenge the government's position on this.

[00:10:49] Speaker 03:
Well, I realize my time is up if I can continue answering.

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One goes hand in hand with the other.

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If there is a right to attend, then the case law is crystal clear that there must be a mechanism to challenge a closure.

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If there is no right to attend, for example, if it's not a public proceeding, or if you are not a member of the public.

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And with respect to member of the public, if I could just briefly say,

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The military commission rules of procedure, just like the rules of courts martial procedure, define member of the public quite broadly.

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And in fact, the courts martial rules of procedure, which the court below CMCR in a different case has acknowledged are essentially identical to the military commission rules, basically say even government employees specifically say,

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Even government employees are members of the public.

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So as far as the procedures relevant to these proceedings are concerned, the government, the procedures themselves recognize a government employee still having the First Amendment right to attend public proceedings, which is all I am seeking to vindicate here.

[00:12:13] Speaker 04:
But now, Mr. Sandel, I thought that you're just not an unqualified member of the public.

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I thought your security clearance is, you're arguing anyway, gives you special status as a member of the public to have access to the closed portions of this hearing, which even the public is not entitled to.

[00:12:37] Speaker 03:
Not exactly, Your Honor.

[00:12:40] Speaker 03:
The argument is that,

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The respondent had the burden of demonstrating a substantial probability of harm to its compelling interest.

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And with respect to the judge's determination of substantial probability of harm, a relevant consideration for the judge is that respondent has itself said on numerous occasions over the last 10 years

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that petitioner does not represent a risk to national security.

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And in fact, petitioners access to national security information is entirely consistent with national security interests.

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It's not that the clearance gives anyone a special status.

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It's the fact that the government has repeatedly made the risk determination in favor of respondents

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That was a relevant consideration with respect to determining if the respondent had carried its burden of showing substantial probability of harm.

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Respondent theoretically could have pointed to a whole bunch of things to demonstrate substantial probability of harm.

[00:13:59] Speaker 03:
It pointed exclusively to need to know, which is irrelevant because it's a generic, unspecified risk.

[00:14:07] Speaker 03:
In response to the respondents seeking to close, petitioners said, I am not a risk.

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And one of the things that you should consider in determining if I am a risk is a respondent's own view that I am not a risk.

[00:14:28] Speaker 04:
All right.

[00:14:30] Speaker 04:
We'll give you a couple of minutes in reply.

[00:14:33] Speaker 04:
Thank you very much.

[00:14:35] Speaker 02:
Mr. Smith.

[00:14:36] Speaker 02:
Thank you, Your Honor, and may it please the court, Jeffrey Smith for the United States.

[00:14:41] Speaker 02:
As the panel's questions suggest, there's an incongruity here between what Mr. Sundell claims, which is a First Amendment right to attend, and the fact that he only has this right, in his view, because of a security clearance he has as a government employee.

[00:15:01] Speaker 02:
Under this court's precedent in Diab,

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a classified hearing can be closed to the public.

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And once a hearing is closed to the public, there is no First Amendment right of attendance.

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Mr. Sundell is advancing the argument that the government has to demonstrate over a strict scrutiny standard that each individual person who wishes to attend

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is a security risk.

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And that has never been the standard.

[00:15:27] Speaker 02:
It's not a workable standard.

[00:15:29] Speaker 02:
And it's a standard that's entirely inconsistent with national security.

[00:15:32] Speaker 02:
Under that legal rule, anyone that the government, perhaps mistakenly, not in this case, but perhaps in another case, the government mistakenly cleared someone like Edward Snowden, that person could go around to every court and get every classified

[00:15:47] Speaker 02:
transcripts, get every classified filing and do whatever he wanted with it.

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And that is a huge risk.

[00:15:54] Speaker 02:
That is why the government has a need to know compartmentalization within the executive branch.

[00:16:03] Speaker 05:
Council.

[00:16:04] Speaker 02:
Yes.

[00:16:06] Speaker 05:
My concern for one thing is why the appellant in this case has prudential standing.

[00:16:14] Speaker 05:
If he does have prudential standing,

[00:16:17] Speaker 05:
than any of your colleagues in the National Security Division could bring the same case against you and against the policy of the government?

[00:16:32] Speaker 02:
Yes, I think that's right.

[00:16:34] Speaker 02:
I mean, I think anyone who attempted, who claimed that they wanted to attend a hearing would be able to do that under the theory that he's advancing.

[00:16:45] Speaker 02:
And then that would include anyone in the national security.

[00:16:48] Speaker 05:
About the hint in your brief that this was incongruous, which the other way of phrasing that is prudential standing.

[00:16:59] Speaker 05:
Do you believe he lacks prudential standing to sue as a member of the public?

[00:17:05] Speaker 05:
Because he was... Go ahead.

[00:17:09] Speaker 02:
I'm sorry.

[00:17:10] Speaker 02:
I mean, in light of Lex Mark and this court's...

[00:17:15] Speaker 02:
case law interpreting Lexmark, it's not clear whether prudential standing is the right analysis.

[00:17:21] Speaker 02:
I think it may be that it's a merits question that the court should only reach, assuming that it finds jurisdiction and there is no jurisdiction here for other reasons.

[00:17:32] Speaker 02:
I'm not sure if that's a satisfactory answer, but I'm not sure that I can answer it beyond that.

[00:17:38] Speaker 02:
But I agree that the underlying concern you raise is a valid one.

[00:17:42] Speaker 02:
I just think it may be a merits question.

[00:17:45] Speaker 05:
Why is it a merits question?

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You understand his position that any lawyer in your division could take the same position as he's taking, attacking your representation and the policy of the government.

[00:18:09] Speaker 05:
You understand that?

[00:18:10] Speaker 05:
That's his implication of his position.

[00:18:14] Speaker 05:
You don't think that raises a standing question?

[00:18:19] Speaker 02:
Well, again, this is a somewhat different answer.

[00:18:23] Speaker 02:
To the extent that the question is whether the injury is concrete and particularized as to him or whether it's so generalized, which may be what you're getting at.

[00:18:35] Speaker 05:
That's an article three question.

[00:18:40] Speaker 05:
I agree.

[00:18:41] Speaker 05:
We're talking about prudential standing.

[00:18:44] Speaker 05:
I'm not asking whether he has injury in fact.

[00:18:46] Speaker 05:
Of course he has injury in fact, because you have to assume the merits on that.

[00:18:51] Speaker 05:
But Prudential Standing asked the question, is this individual entitled to make this claim?

[00:18:59] Speaker 05:
And you have to consider if that's true, then any lawyer in the Justice Department could have raised the same claim challenging the Justice Department's position.

[00:19:11] Speaker 05:
You understand that?

[00:19:13] Speaker 02:
Yes, I do.

[00:19:14] Speaker 05:
And you think such a lawyer would have standing to do that?

[00:19:20] Speaker 02:
I think it's probably a merits question, Your Honor.

[00:19:27] Speaker 05:
I don't see why.

[00:19:29] Speaker 05:
OK.

[00:19:29] Speaker 05:
I don't see why it is a merits question at all.

[00:19:32] Speaker 05:
Why do you say it's a merits question?

[00:19:34] Speaker 02:
I mean, that's how I read Lexmark and this court's case in Crossroads grassroots policy, which

[00:19:43] Speaker 05:
um refers to the zone of interest tests but no but that's under apa this is a constitutional uh uh prudential standing question that's entirely different they rarely come up but you can't look at the apa on that because as i once said it's static that's statutory standing and i was gratified that i was quoted by the supreme court on that that apa is entirely different

[00:20:10] Speaker 05:
There are few cases on constitutional standing.

[00:20:14] Speaker 05:
But it seems to me this falls within that category.

[00:20:17] Speaker 05:
The question is whether a lawyer in the Justice Department or Defense Department can challenge government policy with respect to closing the hearing, not withstanding the government is taking an opposite position.

[00:20:37] Speaker 02:
OK, I think I understand.

[00:20:42] Speaker 04:
What happened?

[00:20:45] Speaker 04:
He froze.

[00:20:46] Speaker 04:
I think, Ann, I hope Ann can take care of that.

[00:20:49] Speaker 02:
I don't.

[00:20:50] Speaker 02:
Again, it's debatable whether it is America.

[00:20:52] Speaker 02:
Of course.

[00:20:54] Speaker 02:
I'm sorry.

[00:20:54] Speaker 02:
My connection is.

[00:20:57] Speaker 02:
Sorry, Your Honor.

[00:20:59] Speaker 04:
We can hear you now.

[00:21:02] Speaker 02:
Oh, OK.

[00:21:03] Speaker 02:
But I would just like to point out that there are two other jurisdictional problems with this case.

[00:21:09] Speaker 02:
One is that this doesn't fall within the statutory jurisdiction that Congress has granted.

[00:21:14] Speaker 02:
The statute that governs this court's

[00:21:21] Speaker 02:
Appellate review over the military commission system is 10 USC 950 G and that statute grants this court with jurisdiction only over final judgments issued by a military commission and approved by the convening authority and

[00:21:39] Speaker 02:
and further restricts the court's review to the findings and sentence of the military commission.

[00:21:45] Speaker 02:
It's clear from both the text and the context that this is a reference to military commission convictions.

[00:21:50] Speaker 02:
That's what the court is granted jurisdiction over by Congress.

[00:21:55] Speaker 02:
And the- Excuse me, counsel.

[00:22:00] Speaker 05:
You would agree that mandamus could lie?

[00:22:05] Speaker 02:
It may be the case that mandamus would lie.

[00:22:08] Speaker 02:
I don't think the court needs to reach that because Mr. Sandel has not sought mandamus and mandamus would not be appropriate, but it may be.

[00:22:14] Speaker 05:
I agree with you.

[00:22:15] Speaker 05:
For instance, if the commission rejected a participant on the grounds he was Catholic, there was certainly mandamus would lie, wouldn't there?

[00:22:26] Speaker 05:
Wouldn't it?

[00:22:28] Speaker 02:
I'm sorry.

[00:22:29] Speaker 02:
Yes, I believe it would.

[00:22:30] Speaker 05:
Yes.

[00:22:31] Speaker 05:
But your answer is he didn't seek mandamus.

[00:22:34] Speaker 02:
Well, my answer is he didn't state mandamus.

[00:22:37] Speaker 02:
Mandamus would not be appropriate because he doesn't have a clear and indisputable right to relief here.

[00:22:42] Speaker 02:
And it's possible that there are, and this was something that we'd need more briefing on, but there may be alternative remedies as well to the extent that he seeks a transcript from the Department of Defense.

[00:22:58] Speaker 02:
And in any case, I see my time is almost up.

[00:23:04] Speaker 02:
This court doesn't have jurisdiction under 950G, doesn't have appellate jurisdiction.

[00:23:09] Speaker 02:
And this case is also not right for reasons that we put in our brief.

[00:23:15] Speaker 02:
So if the court doesn't have any questions on that, I would stand on our arguments in our brief and ask that the court dismiss the petition.

[00:23:24] Speaker 04:
All right.

[00:23:25] Speaker 04:
If there are no more questions, then Mr. Sundell, why don't you take two minutes and reply?

[00:23:32] Speaker 03:
Thank you, your honor.

[00:23:34] Speaker 03:
Briefly with respect to jurisdiction, the jurisdictional provision is 950 GA, which is a standard finality provision.

[00:23:42] Speaker 03:
As this court has said with respect to the Hobbs Act, finality provisions that are analogous to 1291 are appropriately viewed through the collateral order doctrine.

[00:23:53] Speaker 03:
And challenging a closure order on constitutional grounds is a classic collateral order.

[00:23:59] Speaker 03:
of review case in this circuit.

[00:24:03] Speaker 01:
Mr. Sindel, the 1291 talks about final decisions.

[00:24:09] Speaker 01:
950G talks about final judgments.

[00:24:15] Speaker 01:
Judges make decisions all the time that are not judgments.

[00:24:19] Speaker 01:
And Congress made a choice to not use the word decision, but to use the much narrower word judgment.

[00:24:29] Speaker 01:
in 950-G.

[00:24:31] Speaker 01:
So I assume that I don't think we should read judgment to mean decision.

[00:24:40] Speaker 01:
Is there a way for you to still win, to still have jurisdiction here?

[00:24:45] Speaker 01:
Why should we think of what happened to you as a judgment?

[00:24:51] Speaker 03:
Because the phrase judgment

[00:24:58] Speaker 03:
in 950 GA is simply intended to recognize the unique way in which military cases conclude our final.

[00:25:14] Speaker 03:
So military cases writ large are only final after the convening authority approves the findings and sentence.

[00:25:24] Speaker 01:
That explains why Congress would have added the phrase after the convening authority approves it, but it doesn't explain why Congress chose to use the word judgment instead of the word decision.

[00:25:37] Speaker 01:
And you're asking us to divine congressional intent, but I'm asking you why usually the text is our guide to intent.

[00:25:46] Speaker 01:
Why is the text not the guide to intent here?

[00:25:50] Speaker 03:
And we agree that the text is the guide and the text clearly demonstrates Congress's desire for military commission review to be funneled into this court.

[00:26:03] Speaker 03:
There's really no question that Congress did not want district courts and other circuits reviewing the judgment of military commissions.

[00:26:12] Speaker 03:
And that is what would happen if review is not under 950G.

[00:26:17] Speaker 03:
In fact, the first hearing in this case was in Maryland.

[00:26:20] Speaker 03:
So we would be bringing in yet another district and circus to review a military commission judge's order when the structure of- Excuse me, counsel.

[00:26:31] Speaker 05:
You don't have any decision by the convening authority in this case, even if we were to read judgment as you would like us to read as decision.

[00:26:41] Speaker 05:
You don't have any reaction from the convening authority, do you?

[00:26:48] Speaker 03:
The final judgment is read via the collateral order doctrine would include exactly this claim, because this claim is a classic collateral order.

[00:27:02] Speaker 05:
So unless... Even assuming that you could double stretch judgment to make a decision and get a collateral order, doesn't the statute require the convening authority to approve the position?

[00:27:19] Speaker 03:
That's merely a recitation of the statutory scheme for military decisions.

[00:27:28] Speaker 03:
So adding as approved by the convening authority is simply an acknowledgement of when those decisions are in fact final in the context of military judgment.

[00:27:38] Speaker 03:
It avoids the confusion of

[00:27:41] Speaker 03:
When the judge closes the case in a military commission or a court-martial, normally you're looking at a criminal proceeding, that would be the end.

[00:27:50] Speaker 03:
But all that language recognizes is like administrative board decisions that are not final until the secretary approves them, such is the case with military court-martial and commission judgment.

[00:28:05] Speaker 03:
They're not in fact final until they go through the convening authority.

[00:28:10] Speaker 03:
So that language doesn't add anything to the process.

[00:28:15] Speaker 03:
It doesn't add a separate requirement.

[00:28:18] Speaker 03:
It simply highlights that that is in fact what the statute means by final.

[00:28:24] Speaker 03:
Otherwise, there could be confusion for anyone who's not familiar with the military process for finality.

[00:28:34] Speaker 03:
So I could just very, very briefly touch on a couple of things.

[00:28:38] Speaker 03:
Federal defenders always frequently file in opposition to the government.

[00:28:45] Speaker 03:
That's a necessity of their independent role.

[00:28:51] Speaker 05:
Oh, sure.

[00:28:52] Speaker 05:
You're like a public defender, right?

[00:28:54] Speaker 05:
Paid by the government.

[00:28:55] Speaker 05:
Certainly, if you were representing a person,

[00:29:01] Speaker 05:
A pub who claimed a right, that would be a different, your posture would be entirely different.

[00:29:08] Speaker 03:
But as a public defender, I do not lose my individual First Amendment right to attend a public proceeding.

[00:29:18] Speaker 03:
Are you asserting any superior right because you're a public defender?

[00:29:22] Speaker 03:
No, no, no, no, absolutely not.

[00:29:24] Speaker 03:
I'm just distinguishing your hypothetical with an NSD employee.

[00:29:30] Speaker 05:
Oh, wait a minute.

[00:29:30] Speaker 05:
In other words, you are in a different position than a lawyer in the National Security Division who disagrees with the policy.

[00:29:39] Speaker 03:
Well, I certainly think that there is a much greater opportunity for the government to restrict the personal activities of a lawyer whose job it is to represent the government as opposed to a lawyer whose job it is to oppose the government.

[00:29:53] Speaker 03:
So if there is a need to distinguish with other government lawyers,

[00:30:00] Speaker 03:
who should not be allowed to pursue this sort of a claim, that is certainly a recognized distinction.

[00:30:09] Speaker 03:
I only technically work for the government.

[00:30:12] Speaker 03:
My job, in fact, is to oppose the government.

[00:30:16] Speaker 03:
And if there is any need for that distinction to carry over into a First Amendment right, it certainly should.

[00:30:25] Speaker 03:
Diab was a civil case.

[00:30:28] Speaker 03:
And it itself recognized that national security concerns, national security equities, and the need to close proceedings or to exclude evidence in a criminal case is very, very different.

[00:30:43] Speaker 03:
And the government is not entitled to the same level of deference.

[00:30:48] Speaker 05:
This court has also recognized that maybe- But let me come back to your point, counsel.

[00:30:53] Speaker 05:
You're not arguing.

[00:30:54] Speaker 05:
You never in your brief suggested

[00:30:57] Speaker 05:
You had a particular right that no government employee, other government employee would have because your general job was to defend persons charged under the military commission.

[00:31:13] Speaker 05:
Now you're saying you really don't have a public right.

[00:31:16] Speaker 05:
You have some kind of governmental function, right?

[00:31:21] Speaker 05:
That's different.

[00:31:23] Speaker 03:
No, Your Honor, if that's what it sounded like, I'm sorry that I misspoke.

[00:31:28] Speaker 03:
All I'm saying is that if some aspects of government employment infringe on the First Amendment right to attend as a member of the public, then there would be a distinction with government employees whose job it is to oppose the government as opposed to represent the government.

[00:31:53] Speaker 03:
I'm not conceding that there is an appropriate limitation on that, right?

[00:31:58] Speaker 03:
But if there is, then it should be distinguished based on the role within the government.

[00:32:07] Speaker 03:
I realize I've gone way past my time.

[00:32:10] Speaker 03:
I thank the court, and if there are no other questions.

[00:32:14] Speaker 04:
Any more questions?

[00:32:16] Speaker 04:
All right.

[00:32:17] Speaker 04:
Thank you, gentlemen.

[00:32:18] Speaker 04:
Go ahead, Judge Silberman.

[00:32:21] Speaker 04:
Did you have a question?

[00:32:23] Speaker 04:
No, I did not.

[00:32:25] Speaker 04:
Oh, all right.

[00:32:25] Speaker 04:
Okay.

[00:32:26] Speaker 04:
Gentlemen, the case is submitted.