[00:00:00] Speaker 01:
We have two remaining cases.

[00:00:01] Speaker 01:
The next case is 25-3174, Spees versus Morgan.

[00:00:08] Speaker 01:
Mr. Baker?

[00:00:11] Speaker 03:
Thank you.

[00:00:11] Speaker 03:
Lenis L. Baker, appearing on behalf of the appellant, Dr. Spees, is somewhere in the room.

[00:00:17] Speaker 03:
There he is.

[00:00:18] Speaker 03:
And I'd like to do three minutes of reserve rebuttal.

[00:00:24] Speaker 02:
Good luck on that.

[00:00:25] Speaker 03:
Public Library.

[00:00:28] Speaker 03:
The genesis of this case started, the library hosted an event.

[00:00:35] Speaker 03:
It was about gender markers.

[00:00:37] Speaker 03:
Dr. Spies comes with a sign outside, standing there silently.

[00:00:42] Speaker 03:
One of the promoters of the meeting locks the door, stops him, says, you cannot come in here.

[00:00:49] Speaker 03:
And he stands there with the sign silently, and they call the police.

[00:00:55] Speaker 01:
Was this before or after the free speech activities policy?

[00:00:58] Speaker 03:
That's before.

[00:00:59] Speaker 03:
Okay.

[00:01:00] Speaker 03:
So this is going to be one of the remarkable things because what I think this thing went nuclear.

[00:01:05] Speaker 03:
They thought Jews for Jesus was the roadmap because after these two incidents where the policy just said don't disturb, we filed the lawsuit and then they turn around and amend their new policy.

[00:01:24] Speaker 03:
And it went nuclear.

[00:01:27] Speaker 03:
It was every bit as much as Jews for Jesus.

[00:01:29] Speaker 03:
There will be no free speech activities in this building.

[00:01:33] Speaker 03:
Holding or carrying signs, protesting.

[00:01:36] Speaker 03:
Now, whatever that means, that's negative speech.

[00:01:38] Speaker 03:
I guess you could say, I like Ike, but you can't say, I don't like him.

[00:01:44] Speaker 03:
Using expressive conduct or speech.

[00:01:47] Speaker 03:
There's the catch-all.

[00:01:50] Speaker 03:
Distributing literature.

[00:01:51] Speaker 03:
I can't even hand another person a book.

[00:01:54] Speaker 03:
or a note, acting as a public speaker.

[00:01:58] Speaker 03:
What does that mean?

[00:01:59] Speaker 03:
If I have a meeting and I want to address someone in the room, I can't do that.

[00:02:05] Speaker 02:
Did your client schedule a meeting and do that?

[00:02:08] Speaker 02:
No, no.

[00:02:09] Speaker 02:
So that's kind of irrelevant.

[00:02:10] Speaker 03:
All it is is just a facial attack on that whole thing, Judge.

[00:02:16] Speaker 03:
Panhandling.

[00:02:18] Speaker 03:
Requesting signatures, donations, contributions.

[00:02:21] Speaker 02:
Would you agree if we focused instead on as applied and we ruled against you that that would just kind of take care of the facial claims?

[00:02:33] Speaker 03:
Well, I don't know that it would, Judge.

[00:02:36] Speaker 03:
There are two separate inquiries about as applied.

[00:02:39] Speaker 02:
Well, if it's as applied, it means your clients were directly affected.

[00:02:43] Speaker 02:
And if we address all those, the only other issues that would remain on Facial were items that he wasn't involved in, so he doesn't have any standing.

[00:03:00] Speaker 02:
Well, he's still subject to them, Judge, and so a Facial advocate... What evidence do you have that he was chilled

[00:03:08] Speaker 02:
on the things that he never participated in before.

[00:03:14] Speaker 03:
Well, the chill is an objective.

[00:03:16] Speaker 03:
It's not subjective.

[00:03:18] Speaker 03:
So would the idea that they call the police when he do these things, would that chill someone?

[00:03:26] Speaker 03:
Yes, it would.

[00:03:28] Speaker 02:
Well, it wouldn't chill them necessarily from reserving a room.

[00:03:31] Speaker 02:
There's regulations on reserving a room.

[00:03:35] Speaker 03:
You're right, Judge, and I'm not really quibbling about the as applied or facial.

[00:03:40] Speaker 03:
The record shows that they applied a speech prohibitions and they did it unequally.

[00:03:50] Speaker 00:
They then... Can I just make sure that I understand that?

[00:03:54] Speaker 00:
Because I think this is an important question for me.

[00:03:57] Speaker 00:
I had read your briefs to be that this is solely an as applied challenge.

[00:04:02] Speaker 00:
Is that, am I writhing?

[00:04:04] Speaker 03:
No, Your Honor, we did facially attack that and just on its face.

[00:04:09] Speaker 03:
Look, in Jews for Jesus, that was a facial attack.

[00:04:13] Speaker 03:
They didn't even, the Supreme Court didn't even do a forum analysis.

[00:04:16] Speaker 03:
They just said on its face, you cannot have a prohibition that says you cannot have free speech, period.

[00:04:24] Speaker 03:
That's a facial attack.

[00:04:26] Speaker 03:
We do attack it.

[00:04:27] Speaker 00:
In a designated public forum?

[00:04:28] Speaker 03:
In a designated public forum.

[00:04:30] Speaker 03:
and which is what this library is.

[00:04:33] Speaker 03:
So it is a facial attack.

[00:04:35] Speaker 03:
They simply said, you're not going to have free speech here.

[00:04:38] Speaker 03:
Now, we will give free speech to some of the participants, but not generally others.

[00:04:45] Speaker 03:
Well, can I push back on that a little bit?

[00:04:49] Speaker 00:
You bet.

[00:04:49] Speaker 00:
You're the judge.

[00:04:50] Speaker 00:
Well, but this will just help me understand it.

[00:04:54] Speaker 00:
As I understand it, that there is not any quarrel with the fact that it's

[00:05:00] Speaker 00:
is a designated public forum that a reasonable time, place, and manner restrictions are permitted.

[00:05:10] Speaker 00:
Do you agree or disagree with me?

[00:05:11] Speaker 03:
I would agree that it's subject to strict scrutiny.

[00:05:14] Speaker 03:
It has to be reasonable.

[00:05:14] Speaker 00:
Well, intermediate scrutiny is time, place, and manner restrictions.

[00:05:18] Speaker 03:
If it'd be like a sidewalk, it would be like if it is a designated public forum, it's like a sidewalk.

[00:05:25] Speaker 03:
That's the way I characterize it.

[00:05:28] Speaker 01:
How's it like a sidewalk?

[00:05:29] Speaker 03:
Well, it's a public form.

[00:05:31] Speaker 01:
It's not a traditional public form.

[00:05:32] Speaker 01:
It's a limited public form.

[00:05:33] Speaker 01:
It's inside of a library.

[00:05:35] Speaker 01:
It is.

[00:05:36] Speaker 03:
And so Doe Albuquerque said, look, you come to a library, you're entitled to get all this information, right?

[00:05:42] Speaker 03:
And at the same time, if you're entitled to receive it, you're entitled to give it.

[00:05:48] Speaker 01:
And so... But the library can adopt a behavior policy, can it not?

[00:05:52] Speaker 03:
Well, yes, it has to be reasonable and has to have a connection.

[00:05:59] Speaker 03:
Okay, so what's unreasonable about this policy?

[00:06:03] Speaker 03:
Well, let me count the ways, Judge.

[00:06:06] Speaker 03:
Okay.

[00:06:07] Speaker 03:
He got arrested for holding up a blank piece of paper.

[00:06:10] Speaker 03:
But the library didn't arrest him.

[00:06:12] Speaker 03:
The police arrested him.

[00:06:14] Speaker 03:
The library said he's trespassing, get him out of here.

[00:06:19] Speaker 03:
But he did violate their policy.

[00:06:21] Speaker 03:
He got put on the patron incident list.

[00:06:24] Speaker 01:
Why can't a silent protest be disruptive to the ordinary operations of a library?

[00:06:32] Speaker 01:
Is your problem with the policies that it's vague?

[00:06:37] Speaker 03:
Yes.

[00:06:38] Speaker 03:
You've got the videos.

[00:06:41] Speaker 03:
He did nothing to disturb anyone.

[00:06:44] Speaker 03:
He simply stood there outside with a sign.

[00:06:48] Speaker 03:
He didn't say a word.

[00:06:49] Speaker 03:
People come and go.

[00:06:50] Speaker 03:
And so he didn't disturb anyone.

[00:06:55] Speaker 03:
He never disturbed anyone.

[00:06:56] Speaker 03:
In fact, there are subsequent incidents where he came in and he had a flag.

[00:07:01] Speaker 03:
And another individual, Mr. Irvy, had a similar flag, an LGBT flag.

[00:07:08] Speaker 03:
And he had it draped, and Dr. Spies had another flag out.

[00:07:13] Speaker 03:
They said, you're out, Dr. Spies, and you're in.

[00:07:16] Speaker 00:
And that's, as I understand it, the evidence was undisputed that the way that the library had applied its behavior policy and its free expression policy is that it wasn't going to inhibit people with regard to their dress.

[00:07:32] Speaker 00:
You can have, say, a t-shirt.

[00:07:38] Speaker 00:
Mr. Eves didn't do what your client did.

[00:07:41] Speaker 00:
He draped the flag around himself so arguably it was dressed.

[00:07:47] Speaker 00:
Your client didn't use the flag as dress.

[00:07:52] Speaker 00:
Isn't that a material difference with regard to the way that the policy was applied?

[00:07:57] Speaker 00:
I don't think so, Judge.

[00:07:58] Speaker 00:
Why?

[00:07:58] Speaker 03:
You took a flag.

[00:07:59] Speaker 03:
Both of them are flags.

[00:08:01] Speaker 03:
So now you're saying the way that I display the flag.

[00:08:04] Speaker 03:
No, I'm not saying anything.

[00:08:06] Speaker 00:
I'm saying that that's the way.

[00:08:07] Speaker 00:
I'm sorry.

[00:08:08] Speaker 00:
Yeah, I'm just asking a question.

[00:08:13] Speaker 00:
Am I wrong that the policy as applied inhibited sign carrying and protesting?

[00:08:21] Speaker 00:
It did not inhibit anyone from having anything on their dress.

[00:08:26] Speaker 03:
I might be wrong about that.

[00:08:28] Speaker 03:
No, you're not.

[00:08:29] Speaker 03:
And that goes to the unreasonableness.

[00:08:31] Speaker 03:
What is the purpose of saying, I can convey the same message on a shirt or a hat, but I can't put it on this piece of paper?

[00:08:39] Speaker 03:
Maybe nothing.

[00:08:40] Speaker 00:
But as I understand it, the only way... I'm trying to keep up with your argument, because you started off with, as I understood it, the First Amendment designated public forum issue.

[00:08:53] Speaker 00:
I think we've now segwayed into your equal protection claim with regard to Mr. Evis and Mr. Baston.

[00:08:59] Speaker 00:
Because I don't think, I didn't see any discussion about Mr. Evis or Mr. Baston in connection with Counts 1 and 2.

[00:09:08] Speaker 00:
So if we're now on equal protection, isn't it an undisputed inability of the plaintiff to have material, to

[00:09:23] Speaker 00:
comparable individuals, one favored, one unfavored, that were in materially identical circumstances with regard to the policy.

[00:09:33] Speaker 00:
And if the policy itself differentiated, I don't know how you can say that there's a fact question about why they, Mr. Eves and your client, or Mr. Spees, are identical in all material

[00:09:53] Speaker 03:
Ways well to be clear the policy doesn't give an exception to clothing.

[00:09:57] Speaker 00:
It just doesn't say right That's why I asked you about the way that it was right.

[00:10:01] Speaker 03:
So so you have to choose At the identical time one holds up a flag just like this another one has another flag draped around, right?

[00:10:13] Speaker 03:
One is not prohibited, one is.

[00:10:16] Speaker 03:
I say that's unequal treatment.

[00:10:19] Speaker 03:
That's the two flags with messages.

[00:10:21] Speaker 03:
In fact, the one flag was favorable, the other flag wasn't.

[00:10:25] Speaker 01:
We have other instances.

[00:10:27] Speaker 01:
I didn't think the flag incident was in the pretrial order.

[00:10:31] Speaker 01:
Am I wrong about that?

[00:10:33] Speaker 01:
You are, Judge.

[00:10:34] Speaker 03:
It is.

[00:10:36] Speaker 03:
David Bastin had a large sign.

[00:10:39] Speaker 03:
The public library should be defunded for constitutional violations.

[00:10:42] Speaker 03:
That was OK.

[00:10:43] Speaker 03:
Well, is that true?

[00:10:47] Speaker 00:
I thought that the evidence was undisputed, that the library told both Mr. Spees and Mr. Baston to leave.

[00:10:54] Speaker 00:
The police then came, and then after the police talked to your client, Mr. Spees left, Mr. Baston stayed.

[00:11:02] Speaker 00:
But I did not... Can you point to me any evidence that the decision to allow Mr. Baston to stay

[00:11:09] Speaker 00:
and Mr. Spees to leave was done not by the police department, but by a library.

[00:11:14] Speaker 03:
Well, the library is the one that instructs the police who can stay and who cannot.

[00:11:19] Speaker 03:
So the library governs it.

[00:11:20] Speaker 00:
So you have evidence that, and if you can, can you point me to it, because I didn't see it in the briefing, that there is testimony, either by a declaration or deposition, that the library told the police to tell Mr. Spees to leave

[00:11:39] Speaker 00:
And to tell Mr. Baskin that he could stay?

[00:11:42] Speaker 03:
They did not tell Mr. Baskin to leave.

[00:11:45] Speaker 03:
So that part is in the record.

[00:11:48] Speaker 03:
They did tell that Dr. Spees had to leave.

[00:11:51] Speaker 03:
Same way with the blank paper.

[00:11:53] Speaker 00:
They were beating the police?

[00:11:54] Speaker 03:
Yes.

[00:11:55] Speaker 03:
They told the police, the police are the enforcers.

[00:12:01] Speaker 03:
All right.

[00:12:02] Speaker 03:
Gotcha.

[00:12:02] Speaker 03:
So I'd like to have three minutes of my rebuttal time.

[00:12:06] Speaker 03:
I see I've got three.

[00:12:07] Speaker 03:
But I'm happy to.

[00:12:10] Speaker 03:
continue on with this.

[00:12:12] Speaker 03:
You can reserve.

[00:12:13] Speaker 03:
Okay, thank you.

[00:12:15] Speaker 00:
I'm so sorry.

[00:12:16] Speaker 00:
I'm not trying to cheat you out of your bottle.

[00:12:19] Speaker 00:
Maybe he'll have pity on you.

[00:12:23] Speaker 00:
Can I ask you one question about something you said earlier?

[00:12:25] Speaker 00:
Sure.

[00:12:26] Speaker 00:
I thought Verlow v. City of Martinez specifically said that when you talk about a policy that restricts free expression in a courthouse, that it's content neutral,

[00:12:38] Speaker 00:
to do two things, one to prohibit picketing and protesting.

[00:12:42] Speaker 00:
We're two parts of the ordinance that prohibited those two things in a courthouse.

[00:12:48] Speaker 00:
And I thought that our circuit said in a presidential opinion that those were content neutral.

[00:12:53] Speaker 00:
Am I wrong about that?

[00:12:54] Speaker 03:
I don't think you're wrong about that.

[00:12:57] Speaker 03:
Although when we talk about picketing or protesting, that's an amorphous concept in terms of protesting by its definition as negative.

[00:13:08] Speaker 03:
So I'm... Well, then why did we just get it wrong?

[00:13:11] Speaker 00:
It's saying that protesting was content neutral and verbal.

[00:13:15] Speaker 03:
Well, and you've got a courthouse.

[00:13:17] Speaker 03:
I don't think it's apples to apples.

[00:13:20] Speaker 03:
You have a much higher... This is a library which Doe v. Albuquerque said, okay, look, all bets off.

[00:13:26] Speaker 03:
It's free speech.

[00:13:28] Speaker 03:
And so I liken it to a sidewalk in that sense.

[00:13:34] Speaker 03:
I think it isn't fair to take that.

[00:13:36] Speaker 03:
Reason has to be looked at in terms of the others.

[00:13:40] Speaker 03:
So just holding up, I mean, I can hold up the message with a placard, have the same message on a shirt.

[00:13:50] Speaker 03:
The library says you can't do that, but you can do this.

[00:13:53] Speaker 03:
I don't see the reasonableness of that at all, and the idea that if I just hold up a blank piece of paper,

[00:14:02] Speaker 03:
That got him on the pits list.

[00:14:08] Speaker 03:
And then he was banned without even knowing it.

[00:14:13] Speaker 03:
And then he'd show up and say, oh, by the way, you're banned.

[00:14:16] Speaker 03:
I know you didn't know it, but now, and every time, it's increased.

[00:14:20] Speaker 03:
Now what would have been a slap on the hand, now he gets a 90-day ban.

[00:14:25] Speaker 03:
And so we have that issue before the court.

[00:14:32] Speaker 00:
I'm sorry about your rebuttal.

[00:14:34] Speaker 00:
I apologize.

[00:14:42] Speaker 04:
Good morning.

[00:14:42] Speaker 04:
May it please the court?

[00:14:44] Speaker 04:
Samuel Green on behalf of the Appalachians.

[00:14:48] Speaker 04:
The kind of stereotypical image burned in a lot of Americans' minds of a library is this

[00:14:56] Speaker 04:
you know, uptight librarian shushing a group of kids for laughing too loudly or talking too loudly.

[00:15:02] Speaker 04:
And that's because one essential aspect of a library is that the patrons, the users of the library, have access to information they can read, they can study in an environment that is conducive to those activities.

[00:15:18] Speaker 04:
The courts have held that libraries are

[00:15:26] Speaker 04:
limited public forums as far as access goes.

[00:15:31] Speaker 04:
But there's no case.

[00:15:32] Speaker 00:
Is that right?

[00:15:33] Speaker 00:
I mean, I don't want to pick on semantics, but Judge Abel and Doe specifically said it's not a limited public forum.

[00:15:42] Speaker 00:
It's a designated public forum.

[00:15:45] Speaker 04:
So yeah, let me articulate that.

[00:15:47] Speaker 04:
Kramer, the Third Circuit case, does call it a limited public forum.

[00:15:50] Speaker 04:
Right.

[00:15:51] Speaker 04:
And Doe, this court went through the case law and says,

[00:15:55] Speaker 04:
There's no separate category of a limited public forum, but a library is a designated public forum for a limited purpose.

[00:16:02] Speaker 04:
It's been designated open for certain activities, and those are library-related activities such as studying and reading.

[00:16:09] Speaker 00:
Well, I hate to keep picking on you semantically, but I know you said that in your brief, but I did not see anywhere in Doe that he called it a designated public forum for a limited purpose.

[00:16:21] Speaker 00:
He called it, based on Hawkins, a prior president, that it was just a designated public forum.

[00:16:26] Speaker 00:
Now, he did acknowledge that a library, by its nature, inciting crimer, that it opens up a forum for particular purposes, reading, writing, and that kind of thing.

[00:16:39] Speaker 00:
But I don't know that he included the characterization that you did, designated public forum for a limited purpose.

[00:16:51] Speaker 04:
And that might be some of my language, but based on what the court stated in that case.

[00:16:56] Speaker 04:
I mean, there's other cases that a form is only open to the extent it's designated by the government body.

[00:17:04] Speaker 04:
And here, the library's only been open for certain things.

[00:17:08] Speaker 04:
There's no evidence in the record that the library's ever let anyone protest inside there.

[00:17:14] Speaker 04:
It's just not there.

[00:17:16] Speaker 04:
They've not opened the library to public expression.

[00:17:19] Speaker 04:
They've opened it for public access to information, to reading, and to studying.

[00:17:24] Speaker 00:
Well, what about Mr. Baston?

[00:17:26] Speaker 00:
You know, free speech died here.

[00:17:29] Speaker 04:
That was Dr. Spees' sign, free speech died here today.

[00:17:34] Speaker 00:
Well, Mr. Baston had a sign critical of the free speech policy, right?

[00:17:42] Speaker 04:
Mr. Baston was walking through the library with a sign.

[00:17:45] Speaker 04:
It's not in the record what his sign said or what was on his sign.

[00:17:49] Speaker 04:
Okay.

[00:17:49] Speaker 04:
But it is in the record that he was confronted by library staff and treated the exact same way as Dr. Spies was.

[00:17:55] Speaker 02:
Is this the 125?

[00:17:57] Speaker 02:
Date wise?

[00:18:01] Speaker 02:
Yes.

[00:18:02] Speaker 02:
That was the December 1, yes.

[00:18:05] Speaker 02:
December 1, yes.

[00:18:07] Speaker 02:
And Mr. Aravi was with him?

[00:18:12] Speaker 04:
I don't believe Mr. Aravi was there on that date.

[00:18:15] Speaker 02:
What was it?

[00:18:16] Speaker 02:
There was an incident where

[00:18:18] Speaker 02:
Robbie had a sign eight and a half by 11.

[00:18:24] Speaker 02:
And the plaintiff had a sign 11 by 16.

[00:18:29] Speaker 04:
That was, and the record's a little bit unclear, but the incident was right after the November 25th library board meeting.

[00:18:38] Speaker 04:
Both men had attended that meeting.

[00:18:40] Speaker 04:
They went upstairs.

[00:18:42] Speaker 04:
Dr. Speets started protesting in front of the library help desk with a sign that said something to the effect of free speech died here today.

[00:18:50] Speaker 04:
Mr. Ravi was just walking around with a copy of the new policy that he had received at the meeting.

[00:18:55] Speaker 04:
He wasn't standing there protesting.

[00:18:56] Speaker 02:
But he was displaying it.

[00:18:57] Speaker 04:
That is not in the record.

[00:18:58] Speaker 04:
That is an allegation of plaintiff, but there is no evidence that he was.

[00:19:04] Speaker 02:
The record just indicates he was carrying it?

[00:19:08] Speaker 02:
Yes.

[00:19:10] Speaker 04:
Record also indicates that the plaintiff was Brandishing it his sign or waving it he was standing in front of the library help desk like the information center and just Protect like yes holding it up.

[00:19:26] Speaker 04:
I don't know about brandishing.

[00:19:27] Speaker 02:
I'm not sure what brandishing means, but so so in addressing the equal protection problem are you saying that

[00:19:35] Speaker 02:
Because one was using it as a speech and a demonstration is a reason to treat him differently than the person who just had the regulations.

[00:19:49] Speaker 02:
Is that the distinction?

[00:19:50] Speaker 04:
Yes, he was not standing there holding it up.

[00:19:53] Speaker 04:
He was just carrying it after the meeting where that had been distributed.

[00:19:57] Speaker 04:
The library board had distributed copies of the proposed new policy prior to taking action on it.

[00:20:03] Speaker 02:
And you're telling me if I dig into the record, it will indicate that there's no evidence that he was doing, Mr. Araby was doing anything but carrying it?

[00:20:16] Speaker 04:
That was the interpretation of the library at the time, of the library staff at the time.

[00:20:20] Speaker 04:
Was that what the evidence, the record evidence was?

[00:20:22] Speaker 04:
I'm not sure how much evidence is on that as far as Mr. Araby goes.

[00:20:26] Speaker 04:
There was a couple blanket allegations from counsel, and that was the extent of it.

[00:20:31] Speaker 01:
Well, if we were to conclude that Aravi was, in fact, protesting by the way he displayed the policy, wouldn't you agree that the difference between the 8.5 by 11 and the 11 by 16 would be immaterial for purposes of the equal protection claim?

[00:20:53] Speaker 04:
Probably.

[00:20:54] Speaker 04:
But I think the intent behind what the actor's doing would not be, and I think that's where they would not be simply situated.

[00:21:01] Speaker 04:
They're not in every material respect.

[00:21:03] Speaker 02:
Interestingly, though, that was the very distinction the district judge made, the district court made, the size of the sign.

[00:21:11] Speaker 02:
That was a distinction that the court relied upon.

[00:21:14] Speaker 02:
Well, what other distinction in that incident did the court make to take care of the Equal Protection Plan?

[00:21:24] Speaker 04:
The well, that's all I saw.

[00:21:28] Speaker 04:
Yeah, I think the court mentioned the flag incident, which was not no, no, no, I'm talking about this incident on November 25th.

[00:21:36] Speaker 04:
The court.

[00:21:37] Speaker 04:
I don't believe the court and I could be misspeaking, but I don't recall the court's decision focusing on who specifically or what specifically she was referring to when she used the eight and a half by 11 distinction.

[00:21:50] Speaker 04:
And maybe I could be wrong on that.

[00:21:51] Speaker 04:
Well, you are.

[00:21:52] Speaker 02:
I mean, she said that in the decision.

[00:21:54] Speaker 02:
And you say there was another basis that she ruled on.

[00:21:57] Speaker 02:
I want to know what that other basis was.

[00:22:00] Speaker 02:
For that, answer it.

[00:22:01] Speaker 04:
I cannot answer that at the moment, Your Honor.

[00:22:04] Speaker 04:
I don't believe that the evidence is that Mr. Aravi was protesting at that, which would in itself be a material difference, a critical material difference.

[00:22:13] Speaker 04:
And without a finding.

[00:22:16] Speaker 02:
Do what?

[00:22:17] Speaker 02:
I'm sorry.

[00:22:17] Speaker 02:
Never mind.

[00:22:19] Speaker 01:
We're not into the finding yet.

[00:22:20] Speaker 01:
You're saying the flag incident was not in the pre-trial order?

[00:22:24] Speaker 01:
As far as the factual summary of it, yes.

[00:22:27] Speaker 01:
Correct.

[00:22:27] Speaker 01:
Because I think Mr. Baker said that it was.

[00:22:30] Speaker 01:
Yes, I heard that.

[00:22:31] Speaker 02:
Was the 1125 incident in the pre-trial record?

[00:22:34] Speaker 04:
Yes.

[00:22:35] Speaker 04:
As far as Mr. Spees' actions and what led to his being asked to leave, yes.

[00:22:40] Speaker 04:
As an equal protection claim?

[00:22:44] Speaker 04:
It was in the factual section, the factual summary.

[00:22:48] Speaker 00:
And he did, and Mr. Speeds does say in paragraph 42 of his declaration in district court that Mr. Raravi came in and displayed a print out of the policy.

[00:23:03] Speaker 00:
So at least his evidence, view to the light, most favorable to the plaintiff on summary judgment was that he was displaying

[00:23:13] Speaker 00:
this paper.

[00:23:19] Speaker 04:
Yes, I would not disagree with that.

[00:23:22] Speaker 04:
But I guess displaying is undefined.

[00:23:25] Speaker 04:
There's no evidence that he was standing there holding it up.

[00:23:28] Speaker 04:
I mean, just carrying something through the library could be displaying.

[00:23:31] Speaker 04:
It's on display.

[00:23:32] Speaker 00:
But we're on summary judgment.

[00:23:35] Speaker 00:
I'm not trying to argue with you.

[00:23:37] Speaker 00:
I'm just trying to figure it out.

[00:23:40] Speaker 00:
You know, if we view paragraph 42 of the declaration and credit it and view the evidence in a way favorable to him, and the only thing that we have from the district court is, well, it was a difference in sizes, I don't know that we can really credit your distinction that displaying was not sign-carrying under the policy.

[00:24:04] Speaker 00:
What is displaying?

[00:24:08] Speaker 04:
Yeah.

[00:24:10] Speaker 04:
I'm not trying to avoid the question.

[00:24:16] Speaker 04:
As I'm looking back here, I'm not sure any of the factual information about Aravi was in the pretrial order, actually.

[00:24:25] Speaker 04:
And that was going back to your question, Judge Murphy.

[00:24:32] Speaker 04:
No, I think the district court

[00:24:36] Speaker 04:
was looking for similarly situated in every material respect.

[00:24:41] Speaker 04:
The evidence was that the library interpreted what Dr. Spees was doing to be protesting, which was prohibited.

[00:24:47] Speaker 04:
They did not interpret what Mr. Ravi was doing to be protesting.

[00:24:52] Speaker 04:
And that was not fleshed out factually.

[00:24:56] Speaker 04:
Plaintiff did not flesh that out factually.

[00:24:58] Speaker 04:
I'm sorry.

[00:24:58] Speaker 00:
Again, I'm not trying to argue with him.

[00:25:01] Speaker 00:
I'm just really trying to figure it out.

[00:25:04] Speaker 00:
It was inclusive of protesting and sign carrying.

[00:25:09] Speaker 00:
And so maybe Mr. Robbie wasn't protesting, but he was certainly sign carrying if he was displaying the paper.

[00:25:20] Speaker 04:
Well, he was carrying a policy that was just handed to him by the library.

[00:25:25] Speaker 04:
Whether he was displaying a sign or not is, I guess, debatable, maybe.

[00:25:31] Speaker 02:
What is the source of evidence?

[00:25:34] Speaker 02:
that we would be relying upon?

[00:25:36] Speaker 02:
Would it be a declaration from librarian staff as to what Mr. Ravi was doing?

[00:25:46] Speaker 02:
Because there's a possibility that the district court put its own polish on it, called it, I don't know, declaring, whatever.

[00:26:01] Speaker 02:
But what we need to do is look at the record.

[00:26:03] Speaker 02:
So what's the source of the evidence of what Mr. Araby was doing on 11-25?

[00:26:10] Speaker 04:
I don't believe there really is any.

[00:26:15] Speaker 04:
The record is pretty empty there.

[00:26:20] Speaker 04:
And it would be declarations, but again, the library staff, when they thought other people were protesting, that is in the record, like Mr. Baston.

[00:26:29] Speaker 04:
He was walking through, holding something.

[00:26:31] Speaker 04:
They thought he was protesting.

[00:26:32] Speaker 04:
They created a pits report for that.

[00:26:35] Speaker 04:
They asked him to leave.

[00:26:36] Speaker 04:
They treated him the same.

[00:26:38] Speaker 04:
It was something that was interpreted completely differently that maybe they didn't interpret.

[00:26:43] Speaker 04:
And yeah, it's not in the record.

[00:26:45] Speaker 04:
But that's inherent in running a library.

[00:26:47] Speaker 04:
The staff, for any behavior, the staff has to make those judgment calls in his face.

[00:26:53] Speaker 02:
I'm just trying to get to the source of that.

[00:26:57] Speaker 02:
submit a declaration or an affidavit?

[00:26:59] Speaker 02:
No.

[00:27:00] Speaker 02:
But the plaintiff did?

[00:27:02] Speaker 02:
Yes.

[00:27:06] Speaker 02:
And some of the librarian staff did?

[00:27:09] Speaker 04:
Yes.

[00:27:10] Speaker 02:
So what we have to do is search around those to see what is stated in the declarations as Mr. Aravi's activities on 11-25.

[00:27:22] Speaker 04:
Yes, that would be the extent of it.

[00:27:23] Speaker 02:
Is that what we have to do?

[00:27:24] Speaker 01:
Yes, that would be the extent of the evidence on that.

[00:27:27] Speaker 01:
How would holding up a blank piece of paper be impermissible under the policy?

[00:27:34] Speaker 04:
Well, it's the behavior itself.

[00:27:36] Speaker 04:
It's not the message, and that's the exact point.

[00:27:38] Speaker 04:
The library's not regulating the message.

[00:27:41] Speaker 04:
They're regulating the conduct and the behavior.

[00:27:44] Speaker 04:
And protesting is protesting whether there's a message being conveyed, whether it's a vague message being conveyed, whether there's no message being conveyed.

[00:27:53] Speaker 04:
The message is irrelevant to the library's policy.

[00:27:57] Speaker 04:
It's irrelevant to their decision making on it.

[00:27:59] Speaker 00:
But it's negative.

[00:28:01] Speaker 00:
Protesting, by definition, is negative.

[00:28:03] Speaker 00:
If I walk around downtown Denver saying, our system of justice is second to none, am I protesting?

[00:28:17] Speaker 04:
I think so.

[00:28:18] Speaker 04:
And I think some of that goes to the context here, the sequence.

[00:28:23] Speaker 04:
Dr. Speets had been in the library multiple times in a row, several days, and had stood in the same place holding up messages.

[00:28:32] Speaker 04:
And then he goes to the same place holding something up, and it was blank.

[00:28:37] Speaker 04:
But that's the experience of the staff, like the intent.

[00:28:43] Speaker 04:
The behavior was protesting.

[00:28:45] Speaker 04:
That was the action that was being done.

[00:28:47] Speaker 04:
Whether a specific message was contained on the sign

[00:28:51] Speaker 04:
In the context of, or the sequence of those events, he was protesting, and he was protesting, presumably, the new policy, but that's a presumption, not in the record.

[00:29:03] Speaker 04:
But the blank sign, I think, clearly shows that this is not content-based restriction.

[00:29:09] Speaker 04:
This is content neutral.

[00:29:10] Speaker 04:
On that day?

[00:29:12] Speaker 00:
On every day.

[00:29:13] Speaker 04:
There's nothing in the record that shows, at any point, a content-based decision.

[00:29:19] Speaker 04:
Okay.

[00:29:22] Speaker 04:
They did not allow the protesting regardless.

[00:29:27] Speaker 01:
I know it may not be in the pre-trial order, but what's the distinction between the individual having the rainbow flag draped over his shoulders and Spies carrying a Gadsden flag?

[00:29:43] Speaker 04:
The intent behind it.

[00:29:45] Speaker 04:
The library doesn't regulate messages with clothing.

[00:29:47] Speaker 04:
I mean, that came up earlier.

[00:29:50] Speaker 01:
So if he draped the Gagson flag over his shoulders, that would have been the material difference?

[00:29:58] Speaker 04:
That would be my understanding that that wouldn't even have created an issue, yes.

[00:30:02] Speaker 02:
But I don't understand.

[00:30:04] Speaker 02:
Now, you said it's the intent.

[00:30:06] Speaker 02:
We're not looking at his intent.

[00:30:08] Speaker 02:
We're looking at whether or not what is going on is disturbing or potentially disturbing to the patrons of the library, right?

[00:30:17] Speaker 02:
Yes.

[00:30:17] Speaker 02:
We don't care one hoot about his intent.

[00:30:21] Speaker 02:
That is correct.

[00:30:22] Speaker 04:
That is correct.

[00:30:23] Speaker 04:
And I probably didn't say that very articulately.

[00:30:26] Speaker 04:
But one person was protesting with a flag.

[00:30:29] Speaker 04:
One person was simply wearing one.

[00:30:31] Speaker 04:
There is a big difference when the policy prohibits

[00:30:35] Speaker 03:
Protesting it doesn't prohibit wearing scarves or wearing flags as scarves All right your times expired you could give mr. Baker two minutes Thank you Your honors you have video they in this modern day and age they have video they videotape everything

[00:30:58] Speaker 03:
And the court, the lower court, had that video.

[00:31:01] Speaker 02:
Did it have video of the 11-24?

[00:31:03] Speaker 02:
Yes, yes.

[00:31:05] Speaker 02:
And his video on Mr. Irabi?

[00:31:07] Speaker 03:
Yes.

[00:31:09] Speaker 03:
In fact, you'll see in that video where both of them are out there holding it, they can't get anybody's attention.

[00:31:15] Speaker 03:
People just walk on by.

[00:31:19] Speaker 03:
All I'm saying is there's video.

[00:31:21] Speaker 02:
So the evidence... Okay, so what you're saying is that the video says

[00:31:25] Speaker 02:
that he was flashing the 11 by 16 paper around.

[00:31:31] Speaker 03:
Yes, he was doing just like that.

[00:31:33] Speaker 03:
You can view it for yourself.

[00:31:34] Speaker 03:
They were absolutely quiet doing that.

[00:31:38] Speaker 02:
So you're saying they were both doing the same thing?

[00:31:42] Speaker 03:
Absolutely.

[00:31:44] Speaker 02:
And one was nabbed and the other one was not?

[00:31:47] Speaker 03:
Every time.

[00:31:49] Speaker 03:
Irving, his name is Irving, he couldn't get busted.

[00:31:52] Speaker 03:
It was always Dr. Spies was the naughty child.

[00:31:55] Speaker 02:
And did you include a claim in the pretrial order for this, an equal protection claim on this 1125?

[00:32:03] Speaker 03:
Yes, yes, your honor.

[00:32:05] Speaker 03:
And I want to point out in the PIPs, the only citation they ever wrote at Dr. Spies was not for disruption or doing any of that.

[00:32:13] Speaker 03:
It was, you just didn't obey our orders.

[00:32:16] Speaker 03:
Now, and so,

[00:32:19] Speaker 03:
And so I would urge you because the lower court wouldn't watch the videos.

[00:32:25] Speaker 01:
Would you do me a favor?

[00:32:26] Speaker 01:
Would you supply a 28-J letter that identifies the video and the

[00:32:32] Speaker 03:
Timestamp and where we can I can do that after I think we did that in in the lower?

[00:32:39] Speaker 03:
Briefing and all that but yes, I can do that.

[00:32:41] Speaker 03:
Yeah, we're in the video Yes, I we sent video.

[00:32:45] Speaker 03:
I think they send video.

[00:32:47] Speaker 03:
We send video so I can pinpoint The the timestamps on that so you don't have to all right what your time's expired Thank you.

[00:32:55] Speaker 01:
We appreciate your arguments.

[00:32:57] Speaker 01:
You're excused in the case is submitted