[00:00:00] Speaker 04: Good morning, your honors. [00:00:02] Speaker 04: My name is Nate Kellum. [00:00:03] Speaker 04: I represent the appellant, Matthew Monakee. [00:00:06] Speaker 04: And if I could reserve three minutes for rebuttal. [00:00:10] Speaker 04: Mr. Monakee comes to this court seeking timely relief from a Seattle policy [00:00:15] Speaker 04: that removes speakers like Mr. Monakee away from traditional public fora and away from their intended audience when the speech is met with hostility. [00:00:26] Speaker 04: It's a classic heckler's veto, curbing speech when it is threatened by a violent stoppage. [00:00:37] Speaker 04: As such, the policy is unconstitutional. [00:00:42] Speaker 04: and it ought to be enjoined. [00:00:44] Speaker 04: It violates Mr. Minike's right to free speech, as well as his right to due process. [00:00:52] Speaker 04: The policy invariably targets content and is constitutionally invalid. [00:00:58] Speaker 04: As this court found in Center for Bioethical Reform versus Los Angeles County Sheriff's Department, a heckler's veto exists when [00:01:12] Speaker 04: when there is a restriction, a speech restriction due to a negative reaction from the listener. [00:01:22] Speaker 04: And that's precisely what we have here in Seattle per policy. [00:01:27] Speaker 04: The way their policy works is they have an obstruction ordinance, 12A, 16010A3 of the Seattle Municipal Code, and they will invoke it when a speaker is speaking to an audience [00:01:40] Speaker 04: and is not received well, and they perceive a risk of injury. [00:01:44] Speaker 04: And if that happens, then they will tell the speaker, you need to leave. [00:01:48] Speaker 04: You need to remove yourself from the audience so that they cannot be exposed to your message or you will be obstructed. [00:01:57] Speaker 01: So the policy you're talking about is really more a practice of how they enforce this obstruction statute? [00:02:04] Speaker 04: That's right, Judge Brass. [00:02:05] Speaker 04: So it's not really the ordinance itself as much as how they enforce this ordinance along with what they call a time, place, and manner. [00:02:12] Speaker 01: So what kind of injunction are you asking for? [00:02:15] Speaker 04: It would enjoin their application of the ordinance and their time, place, and manner of restriction so not to remove speakers from traditional public fora when it's met with hostility. [00:02:28] Speaker 01: Why wouldn't it be specific to your client? [00:02:32] Speaker 04: Well, I think that that would be certainly appropriate, but it would seem like it would apply to Mr. Manke. [00:02:37] Speaker 04: It would apply to others as well. [00:02:39] Speaker 00: I had somewhat the same question. [00:02:42] Speaker 00: If we credit that this really is a heckler's veto situation, I had a little trouble understanding the scope of the injunction asked for. [00:02:51] Speaker 00: So how would the city distinguish between situations which were heckler's veto situations and true [00:03:02] Speaker 00: time, place, and manner restrictions? [00:03:06] Speaker 04: Because it would be premised on the reaction of the listener. [00:03:10] Speaker 04: Then that would be a Hector's veto situation. [00:03:14] Speaker 04: And so that would be what would be enjoined. [00:03:17] Speaker 04: And that's the policy and practice that they have in place. [00:03:20] Speaker 00: So any time that there is pushback or animosity or potential violence [00:03:28] Speaker 00: as a result of the content of the speaker, that would be a heckler's veto situation. [00:03:36] Speaker 04: That would be a heckler's veto situation. [00:03:38] Speaker 00: What specifically would you enjoin so that the officer on the street would understand, here's what I'm supposed to do? [00:03:45] Speaker 04: Enjoin removing a speaker, restricting a speaker, due to how well the message is received. [00:03:56] Speaker 01: I take it at some point, [00:03:58] Speaker 01: You would agree that the situation gets so volatile, so dangerous that the interest in saving a life or preventing somebody from having serious harm would outweigh the First Amendment. [00:04:09] Speaker 01: I think you would agree with that. [00:04:11] Speaker 04: It would seem that following a content-based analysis of strict scrutiny would be appropriate because it's a content-based restriction where you would use the least restrictive means for restricting what is a compelling interest of saving life or saving harm, certainly. [00:04:30] Speaker 04: The problem here is it wasn't first resort. [00:04:35] Speaker 00: The last resort was the first resort. [00:04:36] Speaker 00: I know we didn't get there. [00:04:38] Speaker 00: Would it have been, for example, constitutional to have erected some kind of barrier between Mynocky and the crowd that was [00:04:48] Speaker 00: which would evoke this animosity toward this topic? [00:04:51] Speaker 04: No question. [00:04:52] Speaker 04: I think it would have been. [00:04:53] Speaker 04: I think that would have been a constitutional way to address that issue, and a far more appropriate way to address the issue. [00:04:59] Speaker 04: You either do that through the barriers, perhaps have a police presence, address the hecklers, the ones who are actually violating the law. [00:05:08] Speaker 04: I think there were a lot of alternatives [00:05:11] Speaker 04: that the city had at its disposal that it just did not deploy because they have a policy in place where if the speech is met with hostility, they first focus in on the speaker and try to remove the speaker. [00:05:23] Speaker 01: You say they have a policy, but I see the allegations being specific to your client. [00:05:29] Speaker 01: Are there other allegations about other people or other practices that you've brought forward? [00:05:34] Speaker 01: Because we have the incidents, the two incidents involving your client. [00:05:37] Speaker 01: Yes. [00:05:37] Speaker 01: I'm not sure what else is out there. [00:05:39] Speaker 04: I'm not aware of other incidents, Judge Bres, but what we have in place is something that was confirmed by the director of police accountability. [00:05:48] Speaker 04: That's how they handle it, that when there is a speaker and then it is met with hostility, then what they do is they invoke this obstruction ordinance. [00:05:59] Speaker 04: And so I'm only aware of these two occasions, but they certainly applied it consistently in those two occasions with Mr. Monakee. [00:06:07] Speaker 00: If you're correct in your [00:06:10] Speaker 00: argument about the heckler's veto, and if the case were then remanded to the district court to reconsider, would you again ask for an injunction that covered everything, or would you narrow it to Mr. Meinike? [00:06:26] Speaker 04: Mr. Meinike's concern is really Mr. Meinike. [00:06:31] Speaker 04: I would think it would apply to other speakers, but that is certainly the concern that's being pursued in this action. [00:06:40] Speaker 04: And so for that, we believe that because it is a hecaris veto, it violates free speech. [00:06:46] Speaker 04: Also, I believe there are due process concerns as well, because you have an obstruction ordinance that is utilized in a way that it ordinarily is not. [00:06:55] Speaker 04: That is, it is affecting someone who is speaking. [00:06:58] Speaker 04: They're speaking in a place where they have every right to speak and not engaged in fighting words, not inciting violence. [00:07:05] Speaker 04: But nevertheless, because violence has occurred from listeners, that is being used against him. [00:07:11] Speaker 04: So I would say in addition to a free speech violation, there's also a due process violation. [00:07:19] Speaker 04: And with that, Your Honor, I would submit that Mr. Manke is entitled to a preliminary injunction that he should prevail on those two constitutional claims. [00:07:30] Speaker 04: That because it does represent irreparable harm to him, like the stated in Elrod v. Burns' 1976 US decision with constitutional violations at stake. [00:07:44] Speaker 04: And then also, there's really no appreciable harm to the city to refrain from applying the obstruction ordinance in our town place manner restrictions in this particular way. [00:07:54] Speaker 04: And that they can deal with safety and the order concerns in a far more legitimate manner. [00:08:00] Speaker 04: That there's really no harm that disinjunction would pose for them. [00:08:04] Speaker 04: And that's in the public space interest. [00:08:06] Speaker 04: to be able to have citizens be able to speak freely, even if their speech is not liked, even if their speech is not popular, to be able to do so and not allow an unruly mob or someone who dislikes what they have to say to be able to control whether they can say it or not. [00:08:25] Speaker 04: And so with these prongs being met, we believe that a preliminary injunction along those lines for Mr. Monakee would be appropriate here. [00:08:33] Speaker 04: And so we would ask that this court reverse the decision below and instruct the court below to enter an injunction along that lines. [00:08:45] Speaker 04: But that's really my argument, but I'd be glad to answer any questions of the court. [00:08:52] Speaker 01: Well, maybe you want to save the rest of your time for rebuttal? [00:08:54] Speaker 01: I will. [00:08:55] Speaker 01: Thank you, Judge Rest. [00:09:02] Speaker 01: Good morning. [00:09:03] Speaker 02: Morning, Your Honor. [00:09:04] Speaker 02: Dallas up here on behalf of the city of Seattle. [00:09:07] Speaker 02: The case before us simply is not a case of a heckler's veto. [00:09:12] Speaker 02: A heckler's veto is a situation in which, as a result of a reaction from a crowd to a message, the government bans speech and denies a public forum to the speaker. [00:09:24] Speaker 02: The use of separation, protest zones, counter-protest zones, and buffer zones to ensure that the citizens of the city can continue to exercise the First Amendment rights in safety for themselves and for the listeners has been the standard practice and accepted by the Supreme Court for at least 30 years. [00:09:43] Speaker 03: Were there buffer zones here? [00:09:45] Speaker 02: That was exactly what the city was creating. [00:09:48] Speaker 02: By doing what? [00:09:49] Speaker 03: By arresting him and taking him out? [00:09:51] Speaker 02: No, by asking Mr. Meineke on June 24th, 2022 to please cross the street. [00:09:56] Speaker 02: That would create a separation between the main crowd and Mr. Meineke while still allowing Mr. Meineke, who was amplified on June 24th, to reach his audience without the continued risk of violence. [00:10:08] Speaker 03: And on June 26th, when Mr. Meineke was asked to relocate... In some of the cases you have [00:10:15] Speaker 03: some of the ones involving abortion clinics and so on. [00:10:17] Speaker 03: You have a buffer zone that is all known in advance. [00:10:21] Speaker 03: So everybody knows sort of what the rules are, where you can go and where you can't go. [00:10:25] Speaker 03: Was there anything, any advance warning to any speaker, including Mr. Mineke that Seattle was creating a buffer zone or a free speech zone? [00:10:34] Speaker 02: Yes, Your Honor. [00:10:35] Speaker 02: Now, in the case of planned events, obviously the city can respond in advance of the day in question. [00:10:42] Speaker 02: Looking back at 2020, that was something that happened repeatedly, where you had those two separate groups, the Blue Lives Matter, Black Lives Matter, Antifa, and Proud Boys, and all of those groups. [00:10:51] Speaker 02: They were creating buffer zones and counter-protest zones in advance. [00:10:55] Speaker 02: However, both the Dobbs protest and in the Pridefest case, there was no advance notice that Mr. Meineke was going to come up and be speaking and that there was a risk of... Whether you know that you've got a counter-speaker or not, you can create a buffer zone. [00:11:10] Speaker 03: So I think my question to you was, in advance of these events, did the Seattle police create a buffer zone or a free speech zone so that it would have been known to Mr. Meineke and other people who came? [00:11:23] Speaker 02: When they asked him to move, yes, that was their notice. [00:11:26] Speaker 03: Let me repeat the question for the third time. [00:11:29] Speaker 03: In advance of this event, did Seattle police create a buffer zone so that people in advance, like Mr. Moineke, would have known where the free speech zone was? [00:11:42] Speaker 02: I apologize, Your Honor. [00:11:43] Speaker 02: I was misunderstanding the effect. [00:11:44] Speaker 02: No. [00:11:45] Speaker 02: Not being aware that there was any, there's going to be these events, the speech, or that there was a risk of violence beforehand, the city did not have an opportunity to create that in advance. [00:11:54] Speaker 03: Once- This is a spontaneous buffer zone. [00:11:57] Speaker 02: Correct, Your Honor. [00:11:58] Speaker 02: Once it was a spontaneous act, breakdown of civil order, the officers responded and tried to create a buffer zone. [00:12:03] Speaker 03: And they moved him off of one sidewalk and invited him to go to a different sidewalk? [00:12:07] Speaker 02: They, on the 24th, asked him to cross the street. [00:12:10] Speaker 02: Yes, sir. [00:12:13] Speaker 03: And your view is that a spontaneous buffer zone by asking somebody to move from a place where they have a right to be otherwise under the First Amendment is not a heckler's veto. [00:12:24] Speaker 02: Correct, Your Honor, because Mr. Meinike, the appellate in this case, was still provided the public forum in which he wished to speak and access to his audience. [00:12:33] Speaker 01: Right, but it's not quite a buffer zone, right? [00:12:35] Speaker 01: Because you took one person who had one speech, one viewpoint, and moved him away, but the other people were allowed to stay. [00:12:42] Speaker 01: They weren't put in their own buffer zone, or at least they were put in a preferable one. [00:12:47] Speaker 02: And Your Honor, logistically speaking, yes, we had to ask the one person to move rather than attempting to move the thousands of people on the other side. [00:12:57] Speaker 02: And looking at the idea that one may be more preferable or not, again, looking back to the buffer zone created around President Bush back in 2001, where they said that one may be more desirable than the other, as long as the desirable position is not given based on content, but is simply given for logistical reasons, that is acceptable. [00:13:14] Speaker 00: Well, he said, I guess there's some dispute because [00:13:17] Speaker 00: He said, well, they ordered him to go over there where he didn't think that the, I guess the viewers would be able to either hear or to see his signs. [00:13:29] Speaker 00: So it wasn't, in his view, it wasn't a comparable, it wasn't a buffer zone, it was an exclusion zone. [00:13:36] Speaker 02: And while Mr. Meineke has argued that he was excluded, the evidence in front of the district court and the evidence on the record here simply does not support that. [00:13:45] Speaker 02: A look at the videos that were in evidence show that Mr. Meineke on June 24th was amplified, that Mr. Meineke was on the sidewalk. [00:13:52] Speaker 02: And in the video, specifically the police video at DR 81, you can see the [00:13:59] Speaker 02: people walking on the other side of the street into and out of the Dobbs protest, and that they can be heard on the video. [00:14:06] Speaker 02: So clearly, Mr. Mineke could be heard and can be seen. [00:14:08] Speaker 02: And on June 26 at the Pride Fest, you can see, as Mr. Mineke is walked out of the event, that as he comes up to the edge of the parking on the sidewalk, the event is much larger than just the area he was in. [00:14:18] Speaker 02: He still has access to people, and he can be seen and heard by the attendees on that event as well, even if he had complied with the requirements. [00:14:28] Speaker 03: Protesters who were surrounding Mr. Meineke have simply followed him across the street if he had moved from one corner to another corner? [00:14:35] Speaker 02: The only evidence in this case is that no, they would not. [00:14:38] Speaker 03: Mr. Meineke... What is the evidence that they would not? [00:14:40] Speaker 02: Of course. [00:14:41] Speaker 02: And Mr. Meineke had alleged in his verified complaint that when he was assaulted, the protesters picked him up, took him across the street, and dropped him off. [00:14:50] Speaker 02: So that's the indication is that as long as he had that separation, they would not have. [00:14:54] Speaker 02: That's the only evidence we have about whether or not he falls in. [00:14:56] Speaker 00: So in other words, because he has a contrary point of view, he gets to be picked up and dropped on the other side of the street by the police? [00:15:03] Speaker 00: Absolutely. [00:15:03] Speaker 00: And the city says, well, there it is. [00:15:05] Speaker 00: He's now in a buffer zone. [00:15:07] Speaker 00: Is that the city's position? [00:15:08] Speaker 00: Absolutely not, Your Honor. [00:15:09] Speaker 02: No, absolutely not. [00:15:10] Speaker 02: The city's position is the first thing that officers have to do when they arrive is restore order and safety to everybody. [00:15:15] Speaker 02: And then they can begin investigating the crime that had occurred. [00:15:18] Speaker 02: They unfortunately, in these cases, did not get past the restoring order before Mr. Manakee was arrested. [00:15:25] Speaker 02: However, the fact that, you know, [00:15:29] Speaker 02: There are some alternatives that they could have done, like providing permanent police protection, erect boundaries around him, does not make it not a narrowly tailored restriction, I'm sorry, to have been put in place, because as the court has held, that fact that there might be a better alternative is not the question of whether the restriction is reasonable. [00:15:49] Speaker 03: The officers can be heard on the tape repeating over and over again, time, place, and manner. [00:15:54] Speaker 02: Correct. [00:15:55] Speaker 03: Time, place, and manner. [00:15:55] Speaker 03: They've been well-coached. [00:15:58] Speaker 03: What about this should make us think that this was a time, place, and manner restriction? [00:16:03] Speaker 02: Absolutely, Your Honor. [00:16:04] Speaker 02: And the reason is Mr. Meinike is being [00:16:07] Speaker 02: given a place restriction, being asked to move some distance from the... That just sounds like, spontaneously, this is for the convenience of the police. [00:16:14] Speaker 03: I mean, this is at a time of their choosing in a place where they want it in a manner they want, but that doesn't feel like a time, place, and manner restriction in the way that the First Amendment conceives of those things. [00:16:25] Speaker 02: Yes, Your Honor, it is ideal and it is, the city's, you know... [00:16:29] Speaker 02: practice to put in place restrictions beforehand when they can foresee the possibility of violence in any planned event. [00:16:36] Speaker 03: But a time, place, and manner restriction would generally apply to all parties. [00:16:41] Speaker 03: It might be a noise restriction or a concert has to end by 10 o'clock restriction. [00:16:48] Speaker 03: But that would be a rule of general applicability, a neutral rule. [00:16:53] Speaker 03: What was neutral about this? [00:16:54] Speaker 02: Again, the separation itself is applying to both parties. [00:16:58] Speaker 03: What makes this time, place, and manner? [00:16:59] Speaker 03: This just doesn't sound anything like any time, place, or manner restriction that I've ever seen. [00:17:04] Speaker 02: And again, looking at the, I know it's a case of minimal precedent in this case, but the plaintiff has cited to the Bible believers case. [00:17:12] Speaker 03: Which case? [00:17:13] Speaker 02: The Bible believers case. [00:17:15] Speaker 02: And that is the most factually on point case that is readily available. [00:17:21] Speaker 02: And in that, citing to the Supreme Court, [00:17:24] Speaker 02: The court had a situation in which speakers had arrived at, in that case, an Islamic heritage event, and they were making a set of protests to them that were highly denigrating and resulted in violence. [00:17:38] Speaker 02: And the police ordered them to leave the event and go home. [00:17:43] Speaker 02: The Sixth Circuit found that to be a heckler's veto. [00:17:48] Speaker 02: The distinction here, and is a distinction that was made within the Bible believers case, is that the city may have used any other means to restore public order and prevent the ongoing violence, short of silencing the plaintiff. [00:18:05] Speaker 02: They specifically noted putting him into a protest zone, quartering him off, separating them. [00:18:12] Speaker 02: While this was not a large-scale breakdown, such as what happens in Manate or in the 2020 protests, that could be planned for and approached in advance. [00:18:21] Speaker 02: It was a spontaneous breakdown of public order. [00:18:24] Speaker 02: The use of a separation is a standard form of time, place, and manner restriction that has been upheld repeatedly, both in this circuit and the Supreme Court. [00:18:34] Speaker 00: If you characterize it as a heckler's veto case, [00:18:40] Speaker 00: Then what's the standard of review as to the so-called time, place, and manner that you now want to invoke? [00:18:46] Speaker 00: Isn't it strict scrutiny? [00:18:47] Speaker 02: No, it is the lesser standard that was invoked on time, place, and manner restrictions that it has to be, both in support of fundamental government interests, narrowly tailored, and providing alternative means of incontroversial. [00:19:03] Speaker 00: We use that mantra of time, place, and manner in different kinds of cases, and it seems to me [00:19:10] Speaker 00: The premise of my question is that this is a heckler's veto case. [00:19:14] Speaker 00: He's opposing the position of the individuals in the plaza or depending on whether it's the pride or the abortion situation. [00:19:28] Speaker 00: So if you have a heckler's veto and then [00:19:32] Speaker 00: you impose what you characterize as time, place, and manner. [00:19:36] Speaker 00: The question is, shouldn't we be reviewing that under strict scrutiny, not a lesser standard? [00:19:43] Speaker 02: If it is found to be a heckler's veto, meaning both elements of a heckler's veto, which is that there is a restriction based on the reaction of the crowd that silences the speaker, then yes, it would be strict scrutiny. [00:19:57] Speaker 00: And so there is definitely a reaction of the crowd, right? [00:19:59] Speaker 02: Correct, Your Honor. [00:20:00] Speaker 00: And in terms of removing him, isn't that meet the heckler's veto criteria? [00:20:09] Speaker 02: No, Your Honor, because Mr. Meinecke was not silenced. [00:20:11] Speaker 02: He still had access to the public forum, and he still had access to his audience. [00:20:15] Speaker 02: And that is the distinction for when a public [00:20:17] Speaker 02: A reasonable time, place, and manner restriction transforms into a heck of a retail is when the speaker is silenced as a result of the reaction, rather than some method made to restore order to allow everybody to continue to exercise their First Amendment rights safe. [00:20:32] Speaker 01: I don't know that the test is complete silence. [00:20:34] Speaker 01: I mean, I think [00:20:35] Speaker 01: some amount of restriction on your First Amendment rights is going to be a cognizable claim. [00:20:41] Speaker 01: So I don't know that it really moves the needle to say he was on the other side of the street, he had a bullhorn, he could do well enough. [00:20:49] Speaker 01: That's not usually an argument we accept in this context. [00:20:52] Speaker 00: And also, this is a little bit different than the Bible believers, which you refer to, because there it was removed completely. [00:20:59] Speaker 00: So this is somewhere in between. [00:21:00] Speaker 02: In between. [00:21:01] Speaker 02: Yes, you are. [00:21:01] Speaker 02: And I think the distinction has to come down to whether or not, and obviously, complete silencing is not the test, but whether he's effectively lost access to the public forum or to his audience. [00:21:11] Speaker 02: And that is what he has not lost in this case. [00:21:13] Speaker 02: And the evidence on the record shows that Mr. Meinike both still had access to the public forum, the sidewalks, still had access to the public forum, the streets, and still had access to his audience, both at the Dobbs protest on the 24th and to the Pride Fest, which he would still have been in on the 26th. [00:21:28] Speaker 03: You've mentioned a couple of times that he was amplified. [00:21:32] Speaker 03: Was he amplified in both instances? [00:21:35] Speaker 02: He was amplified on the 24th. [00:21:36] Speaker 02: If memory serves me from the video on the 26th, Mr. Meinecke was not amplified on that date. [00:21:41] Speaker 03: So it was amplified at the Dobbs hearing? [00:21:44] Speaker 02: Yes. [00:21:45] Speaker 03: But not the Pride. [00:21:46] Speaker 03: Was there anybody else in that event that was amplified? [00:21:56] Speaker 02: I believe on the video at the Dobbs event, there is what sounds to be somebody who was amplified at the Pride Fest event, not that I'm aware of. [00:22:07] Speaker 03: All right. [00:22:08] Speaker 03: But let's just focus on the one word. [00:22:09] Speaker 03: So the only person who was amplified and was removed was Mr. Meinecke, as far as we know. [00:22:19] Speaker 03: So a time, place, and manner restriction would say, well, amplification disrupts businesses to cause windows to break near a hospital, whatever the reasons would be. [00:22:32] Speaker 03: But again, that rule would be applied neutrally to anybody who was using amplification in an area in which [00:22:37] Speaker 03: The city had said no amplification at these times and during these hours. [00:22:41] Speaker 03: But if only Meineke is removed, that's a heckler's veto. [00:22:44] Speaker 03: That's not a time, place, or manner restriction because nobody else who was amplified was removed. [00:22:50] Speaker 02: Yes, Your Honor. [00:22:51] Speaker 02: The concern is that Mr. Meineke is not the only one being subject to the seizure of separation being created and which would be enforced, presumably on both sides. [00:22:59] Speaker 03: So again, if they come approach Mr. Meineke once he's separated... Did they move him back to the other street, to the same street where he was? [00:23:06] Speaker 02: They would maintain the separation and have forced the protesters who were approaching Manakee to separate back onto the side of the street from which they started. [00:23:14] Speaker 02: And the same thing once they had moved him at the Pride Fest. [00:23:16] Speaker 02: So the idea that it's just simply just moving him, what they're doing is creating a buffer zone. [00:23:21] Speaker 03: Was he blocking the sidewalk? [00:23:23] Speaker 02: No, he was just standing next to the crowd. [00:23:27] Speaker 02: So once they create that separation, it applies to both of them. [00:23:30] Speaker 02: It's just a logistical concern of who do they move, one person or several thousand, to create that buffer zone. [00:23:37] Speaker 02: The buffer zone itself would be enforced. [00:23:39] Speaker 03: Why were all of the thousands on his side of the street at the moment that he was there? [00:23:44] Speaker 02: I'm sorry, Your Honor. [00:23:45] Speaker 03: Why were all of, you said that there were several thousand people. [00:23:48] Speaker 03: Why were there several thousand people all on his side of the street? [00:23:51] Speaker 02: Well, they were there first, Your Honor. [00:23:52] Speaker 02: There was a Dobbs protest in front of the federal building on June 24th that Mr. Meineke came to and started preaching at. [00:24:01] Speaker 02: So that's why they were all in one spot. [00:24:02] Speaker 02: They were gathering there. [00:24:04] Speaker 02: And the same thing for the Pride Fest. [00:24:06] Speaker 02: That was a planned event, and I see I'm out of time. [00:24:09] Speaker 02: If you'd like me to finish my answer, I'm more than happy to. [00:24:11] Speaker 02: That was a planned event that Mr. Meineke attended. [00:24:14] Speaker 02: So they were all there because that was where that event was occurring. [00:24:18] Speaker 02: And Mr. Meineke showed up afterwards. [00:24:23] Speaker 01: Okay, hearing no more questions, I want to thank you for your argument this morning, and we'll hear rebuttal. [00:24:33] Speaker 04: Just briefly, as far as clarifying [00:24:37] Speaker 04: The extent of the effect on Mr monarchy on both June 24 from 26 what the record shows is that on June 24 that's where it took place in downtown Seattle and you had the abortion rally. [00:24:51] Speaker 04: The people are staging at the corner and intersection. [00:24:54] Speaker 04: of 2nd Avenue and Marion Street. [00:24:57] Speaker 04: And where Mr. Manke was forced to go or where he was told to go was on the other side of Madison Street, which was one block over. [00:25:06] Speaker 04: And so essentially what you had is you had a distance that was created. [00:25:09] Speaker 04: between himself and the individuals. [00:25:11] Speaker 04: He couldn't have conversations. [00:25:13] Speaker 04: Obviously, he couldn't hand out literature. [00:25:15] Speaker 00: I'm sorry? [00:25:15] Speaker 00: He was told to go over to Madison, not Marion. [00:25:19] Speaker 04: Yes. [00:25:19] Speaker 04: Yes, Your Honor. [00:25:21] Speaker 04: And so doing that, that created significant separation between him and his would-be audience. [00:25:29] Speaker 04: Their backs were to him, so his signs really were not much use. [00:25:33] Speaker 04: Now, it is possible that maybe someone toward the back could have heard what he said. [00:25:37] Speaker 04: But that would have been severely restricted as well. [00:25:40] Speaker 04: And then, of course, the whole move was even tenuous because had somebody just followed him over there and was antagonistic again, he would have been required to move again, per the policy. [00:25:52] Speaker 04: On June 26, in a pride fest at the Seattle Center, he was, as the record shows, he was required to leave the entire park. [00:26:01] Speaker 04: Even though he's already outside the contours of the event, pages 91, 92, that's shown in the closed case summary of the Director of Police Accountability, he was required to leave the entire Seattle Center. [00:26:16] Speaker 04: So he couldn't reach anyone that was actually in the park. [00:26:19] Speaker 04: And so this makes it actually, I believe, very similar to Bible believers, where they were removed from the festival. [00:26:26] Speaker 04: Likewise, Mr. Manakee was removed from the festival. [00:26:30] Speaker 04: And just as the Sixth Circuit held in Bible believers, I believe it would be appropriate for this court to hold this heckler's veto here. [00:26:37] Speaker 01: Let's just ask, just hypothetically, if he's on one side of the street and there's a group of people who are upset with him, [00:26:44] Speaker 01: Is it permissible for the police to move him just to the other side of the street or do you think they need to do other things before that? [00:26:51] Speaker 04: I believe they should do other things, particularly if he wants to do a handout literature like he did in this case. [00:26:56] Speaker 04: I believe other things ought to be pursued. [00:26:58] Speaker 04: Certainly it could come a situation where the only thing they can do, the last resort, is to move somebody. [00:27:04] Speaker 04: And if that's the case, that would seem appropriate. [00:27:06] Speaker 04: But here, police presence, put up some type of barrier, do something else besides restricting the speech would have been the better course. [00:27:15] Speaker 01: The other side analogizes this to a buffer zone. [00:27:18] Speaker 01: Do you agree with that characterization? [00:27:20] Speaker 01: Do you dispute that? [00:27:22] Speaker 04: I don't. [00:27:22] Speaker 04: I believe that's not what this is. [00:27:26] Speaker 04: A buffer zone would apply universally. [00:27:28] Speaker 04: It would not just apply to one person's and one person's point of view. [00:27:32] Speaker 01: Do you agree that at some point in these kind of situations, the police could put together what they're calling a buffer zone? [00:27:40] Speaker 01: You could move one person who maybe has a minority viewpoint to another area that's more secure? [00:27:45] Speaker 04: I think, yeah, in advance, you could put together something that I would think in that type of situation, hypothetically, they still would need to have an opportunity to reach their audience in some way. [00:27:55] Speaker 04: If you can't reach the audience, I believe the buffer zone itself also could be problematic. [00:28:00] Speaker 04: But as long as an individual can reach their audience from where they're required to be, it would seem to be constitutional. [00:28:06] Speaker 00: You know, it's one thing where you've got a permit in advance. [00:28:10] Speaker 00: You know, there's going to be a big protest. [00:28:12] Speaker 00: Police can make arrangements for it. [00:28:15] Speaker 00: buffer zones and that sort of thing. [00:28:17] Speaker 00: But what, in your view, could the police do in a dynamic situation like this? [00:28:25] Speaker 04: Could do it in this type of situation where it just arrives. [00:28:28] Speaker 00: Because we don't have all the advance. [00:28:31] Speaker 00: Sure. [00:28:31] Speaker 00: Yes, we know the dobs came down. [00:28:33] Speaker 00: Yes, we know there could be protests. [00:28:34] Speaker 00: But it's not an organized protest, per se. [00:28:37] Speaker 04: Right. [00:28:37] Speaker 04: And I don't think it could have been predicted that someone would come and [00:28:44] Speaker 04: and share a gospel Christian message, and it would be so poorly received. [00:28:48] Speaker 04: I don't think that could be predicted. [00:28:50] Speaker 04: So it would seem like if the situation, once you see that, certainly I think a police presence made a world of difference. [00:28:57] Speaker 04: If you just have a police officer standing there, that does not happen. [00:29:00] Speaker 04: Or you could say, okay, let's try to put together some type of perhaps a little barrier here to while Mr. Monk would be allowed to speak and be able to reach his audience. [00:29:11] Speaker 04: I would think those types of solutions would have been far superior to what they have in place and that is focusing on the speaker and try to remove him. [00:29:19] Speaker 01: What's the situation at which the police can move them across the street, would you say? [00:29:24] Speaker 01: I think we agreed risk of death, yes. [00:29:28] Speaker 01: Risk of serious injury, probably. [00:29:30] Speaker 01: Where do you think that line is? [00:29:34] Speaker 01: Because I think what the other side would say is, is it difficult for police officers who are in the middle of this to try to gauge some of those things and these situations can develop quickly? [00:29:41] Speaker 04: If it's a situation where [00:29:49] Speaker 04: The police, I'm trying to think of it hypothetically, Judge Perez, where the police are unable by their presence to discourage individuals from continuing to attack Mr. Meinke, perhaps they're attacking the police. [00:30:03] Speaker 04: I would think they could start with arresting the individuals who are doing the attacking, but there seems to be overwhelming numbers. [00:30:10] Speaker 04: Yeah, I would think you would do different things, which could include that. [00:30:15] Speaker 04: But it would seem to be a pretty extraordinary situation. [00:30:17] Speaker 00: Yeah, that really goes to the standard of review also. [00:30:20] Speaker 04: Yes, it does. [00:30:21] Speaker 04: It goes to, yeah, is it the least restrictive means to further a compelling government interest? [00:30:29] Speaker 04: I have nothing further if there's any other questions. [00:30:34] Speaker 01: Well, I think hearing no further, thank you very much for your argument. [00:30:37] Speaker 01: We thank Mr. LaPierre for his argument. [00:30:38] Speaker 01: This matter is submitted. [00:30:40] Speaker 01: We'll stand in recess until tomorrow. [00:30:44] Speaker 00: All rise.