[00:00:01] Speaker 05: States number 24-5207. [00:00:04] Speaker 05: Bradford J. Mone, Ryan Arntz, President of the United States, Statenville Police Board, and in South Wichita County, we regret our advance. [00:00:12] Speaker 05: Mr. Springer, Brady Bounds, Mr. Dixon, Brady Bound. [00:00:17] Speaker 05: Mr. Springer, good morning. [00:00:20] Speaker 03: Good morning, Your Honours, and may it please the Court. [00:00:22] Speaker 03: Brian Springer on behalf of the federal government. [00:00:25] Speaker 03: Plaintiff is permitted to engage in his desired demonstration activities on the sidewalks immediately in front of the House and Senate stairways and on the various other open spaces throughout Capitol grounds. [00:00:37] Speaker 03: At the same time, the regulation at issue directs that conduct off of the stairways themselves to protect the safety and security of the Capitol and the people who work there. [00:00:48] Speaker 03: The regulation is constitutional on two independent basis. [00:00:51] Speaker 03: First, it is a reasonable regulation that applies outside any traditional public forum and preserves the stairways for their intended purpose. [00:01:01] Speaker 03: Second, even assuming that the stairways are a public forum, the regulation is a valid time-place manner restriction that relates the location of speech. [00:01:10] Speaker 03: I'd like to address those two points in turn. [00:01:13] Speaker 03: And I think that this court's decision in Hodge is a helpful starting point for the public forum analysis. [00:01:19] Speaker 03: That case held at the Supreme Court Plaza and the staircase leading up to the plaza are a non-public forum. [00:01:26] Speaker 04: So Mr. Sprayer, first, do you think it's fair to say that historically the Capitol steps have sometimes been a designated public forum open to all manner of speech? [00:01:39] Speaker 03: Your honor, I'm not sure that I would say that they've ever been a designated public forum. [00:01:42] Speaker 03: Designated public forum usually means that it's fully open to the public. [00:01:46] Speaker 03: And here, the evidence in the record shows that over time, the conditions on which the public has been allowed to demonstrate have changed to some degree. [00:01:54] Speaker 03: We don't have the exact situations. [00:01:57] Speaker 03: But I think it's changed over time. [00:01:59] Speaker 03: But even if it were a designated. [00:02:01] Speaker 04: Was it a designated public forum? [00:02:03] Speaker 03: You know, even if there were times it was a designated public forum starting, you know, right after the September 11th attacks in 2001, the board has closed these off and it's allowed to do so even if this were a designated public forum before that. [00:02:16] Speaker 07: So let me ask you a more basic question. [00:02:34] Speaker 07: the opinion of this court, incorporated the decision of Chief Judge Harold Greene in Nicholson, saying that the principles identified by Judge Greene applied and were binding. [00:03:04] Speaker 07: a case involving the Eastern Capitol steps, the very steps we're talking about here. [00:03:14] Speaker 07: And Judge Green's opinion, which all three judges on this court viewed as setting forth the principle involving demonstrations on the Eastern Capitol steps, applied. [00:03:34] Speaker 07: Is not this panel bound by Dellums? [00:03:40] Speaker 03: I don't think that Dellums specifically address the question of whether or not this set of stairways is a public forum. [00:03:49] Speaker 03: It is true. [00:03:49] Speaker 07: I do respect a literally quoting from Dellums where twice the court said, the principles identified in Nicholson control here. [00:04:06] Speaker 07: And while in the Dellums case, people had actually been arrested for not leaving the steps. [00:04:22] Speaker 07: Why isn't that case directly on point here? [00:04:26] Speaker 07: When this case first came to my attention, I thought, [00:04:32] Speaker 07: Why hasn't Dellums settled this for years? [00:04:38] Speaker 03: You know, and again, I don't think that it is true that Dellums points to Nicholson, which I don't think was particularly disputed in that case. [00:04:45] Speaker 03: And it does talk about the principles there. [00:04:47] Speaker 03: It doesn't. [00:04:47] Speaker 07: Disputed, the principles were adopted by this court. [00:04:53] Speaker 07: That's in the opinion in two places. [00:04:57] Speaker 03: Your honor, even the district court in this case said that no prior case had ever analyzed the question of whether the stairways are a public forum. [00:05:04] Speaker 03: And Dellums was specifically a question about a Bivens cause of action and whether to imply a Bivens cause of action. [00:05:09] Speaker 07: I also- Much more than Bivens, as you well know, counsel. [00:05:14] Speaker 03: Your Honor, I think that case is largely about the principles of Bivens, and it also is factually just- Thinking about what is the Capitol building? [00:05:24] Speaker 07: What are the Capitol steps? [00:05:27] Speaker 07: And we're talking about the very same steps that are involved in this case. [00:05:34] Speaker 07: And this court agreed with the principles that Judge Green had identified. [00:05:41] Speaker 07: about the steps. [00:05:43] Speaker 07: That's what I'm trying to get at. [00:05:44] Speaker 07: I don't know why you're fighting me on this. [00:05:46] Speaker 03: Your honor, I mean, a couple things that I will say about Dellums. [00:05:49] Speaker 03: I mean, I think, first of all, it is true that it talks about some of the principles in Nicholson, but it doesn't actually do a full analysis of the public forum, which has developed in the interim, you know, in the years since then. [00:06:00] Speaker 03: I will also say that in Dellums, the particular protested issue was being led by someone who was in Congress, by members of Congress, and that- Actually, there were 2,000 people. [00:06:11] Speaker 07: who marched up and at least two members of Congress were mentioned, all right? [00:06:18] Speaker 07: But lots of people were arrested. [00:06:21] Speaker 07: This is a protest against the war, all right? [00:06:27] Speaker 07: I don't know how we ignore that. [00:06:29] Speaker 07: This is a peaceful protest. [00:06:31] Speaker 07: And the problem was when the Capitol police told the demonstrators to leave, they wouldn't leave. [00:06:38] Speaker 07: And so they were arrested. [00:06:40] Speaker 03: I mean, I think a couple of things that are important here. [00:06:43] Speaker 03: I mean, one is that we're talking about the public forum analysis, which again, I don't think that Dellums actually does a full public forum analysis. [00:06:51] Speaker 03: Neither really did the Nicholson decision. [00:06:54] Speaker 03: It just said, you know, we think that this is a public forum without much analysis. [00:06:58] Speaker 07: It talked to the history and the purpose, the architecture. [00:07:05] Speaker 07: I don't know why the government is fighting this case, because Judge Green interpreted the statute in a manner that allowed regulation, all right? [00:07:18] Speaker 07: That it wasn't a public forum like the streets and passageways, that there are government interests that have to be taken into account and can be taken into account consistent with the Constitution. [00:07:35] Speaker 03: I think that's right. [00:07:37] Speaker 03: Even if this court were to accept that the stairways are a public forum, this is a valid time-place manner restriction because it's just about the location of speech. [00:07:45] Speaker 03: And all that the restriction at issue does is it directs this conduct off of the stairways onto the sidewalks below. [00:07:52] Speaker 03: And the reasons for that are spelled out by the Capitol Police Board, which is that they need a sufficient [00:07:58] Speaker 03: buffer zone around the Capitol building in order to protect both the building itself and the people who work there. [00:08:05] Speaker 07: But they allow congressmen and senators to bring anybody they want, and they allow people who are there to join these demonstrations that are sponsored by congresspersons and senators. [00:08:22] Speaker 07: So that defeats your security concern if members of the public can just [00:08:29] Speaker 07: joined, they haven't been through any security. [00:08:32] Speaker 03: Your honor, I don't think that's right. [00:08:33] Speaker 03: The board treats that situation as qualitatively different than one where it's just the public demonstrating, because these are events that are hosted by Congress members in their official capacity. [00:08:46] Speaker 07: Sure, join me on the steps. [00:08:49] Speaker 07: Your honor, it's true. [00:08:50] Speaker 07: And the police, capital police, don't know who those people are. [00:08:53] Speaker 07: They haven't been through any security. [00:08:56] Speaker 07: You have bombs. [00:08:58] Speaker 07: Or whatever. [00:09:00] Speaker 03: Your honor, I mean a few points on that. [00:09:01] Speaker 03: I think first of all, usually when these events happen, the Capitol police are alerted ahead of time so they can post additional security and have extra people there. [00:09:09] Speaker 03: They also trust that members of Congress, because again, they are hosting these events in their individual capacity and require to be personally present the whole time. [00:09:19] Speaker 07: No question about it. [00:09:20] Speaker 03: They're treating those as different. [00:09:22] Speaker 07: That's the good faith of the members of Congress, all right? [00:09:25] Speaker 07: But the members of Congress don't have control over people who join them there. [00:09:33] Speaker 03: But Your Honor, again, the board is allowed. [00:09:35] Speaker 03: And again, we're sort of at the point where I think we're talking about this in terms of intermediate scrutiny. [00:09:40] Speaker 03: We're assuming that this is a public forum. [00:09:43] Speaker 07: Yes, because of the history of it. [00:09:46] Speaker 07: If it's not historical, back to ancient times, [00:09:49] Speaker 07: by designation. [00:09:53] Speaker 03: Your honor, I mean, again, I think historically, that's not the way these stairways have been treated. [00:09:58] Speaker 03: And that's not the way they're integrated into the actual building itself. [00:10:01] Speaker 07: I thought that was not an accurate statement. [00:10:05] Speaker 07: It endorsed the principles found by Judge Green. [00:10:09] Speaker 07: And I don't know how we can ignore that. [00:10:12] Speaker 07: And I don't know how the government can ignore it. [00:10:14] Speaker 07: And yet, Judge Green [00:10:17] Speaker 07: clearly acknowledged that there were important governmental interests. [00:10:21] Speaker 07: And the question is, does the rule is challenged here to do that? [00:10:29] Speaker 07: This member exception. [00:10:33] Speaker 03: Again, Your Honor, I mean, I think the way that the board has understood this exception is that it treats it as something that's qualitatively different. [00:10:43] Speaker 03: And I would point this court, if it's applying- Different than what? [00:10:46] Speaker 03: qualitatively different than just members of the public hosting their own demonstrations on the steps, sort of on a whim, as they want, those can be inherently unpredictable. [00:10:58] Speaker 04: If I can ask you, maybe following up on Judge Rogers question, even if we were to assume with the government that this is a non-public forum, because it's [00:11:08] Speaker 04: you know, part of the building or, you know, for some reason, it's a reasonable place that, you know, it's not a traditional public forum. [00:11:16] Speaker 04: Even if we assume it's a non-public forum, I'm interested in understanding how we decide that this regulation is reasonable. [00:11:24] Speaker 04: So perhaps it would be reasonable if only members could speak or demonstrate on the steps because it's their workplace, but including [00:11:34] Speaker 04: anybody that a member chooses to sponsor to allow to be part of a demonstration. [00:11:40] Speaker 04: How is that reasonable? [00:11:43] Speaker 04: Even if we're just in the land of reasonableness, how is that exception reasonable? [00:11:49] Speaker 03: I think it's still reasonable. [00:11:51] Speaker 03: And again, I would point the court to what the regulations specifically say. [00:11:55] Speaker 03: So I think that this is 12.2.20. [00:11:58] Speaker 03: What it says is that when Congress members are having these sorts of events or doing their own demonstration activities, it has to be in their official capacity as a member. [00:12:07] Speaker 03: These aren't just them expressing personal views. [00:12:10] Speaker 03: This is them expressing a view as a member of Congress. [00:12:13] Speaker 03: And as part of that, they're allowed to bring members of the public sort of under that umbrella. [00:12:17] Speaker 03: Again, based on this idea that there's going to be trust and that Congress members aren't going to do something that's likely to risk some kind of threat to the Capitol. [00:12:26] Speaker 03: But they have to be doing this in their official capacity as a member. [00:12:29] Speaker 03: They have to be present. [00:12:30] Speaker 03: And it's an event that they've organized themselves or sponsored. [00:12:36] Speaker 04: But what about the unbridled discretion, right? [00:12:39] Speaker 04: So are there any particular criteria that are applied to who can demonstrate with a member in their official capacity? [00:12:46] Speaker 04: It's just up to the member, presumably, to determine who they want to support or sponsor for demonstrations and protests, even in their official capacity. [00:12:56] Speaker 04: So there's a lot of discretion there. [00:12:58] Speaker 04: And if you don't have connection to a particular congressman or senator, then you're out of luck. [00:13:04] Speaker 03: Again, I don't think that this implicates the unbridled discretion doctrine. [00:13:08] Speaker 03: Judge Millett had raised some of these concerns with a prior version of the regulation. [00:13:13] Speaker 03: And as part of this litigation, the board amended the regulation in particular to add that in the official capacity as a member, again, this is members of Congress who work at the Capitol holding events. [00:13:26] Speaker 04: Explain to me why the in their official capacity eliminates the discretion problem. [00:13:31] Speaker 04: Because sure, in their official capacity, [00:13:35] Speaker 04: members could presumably speak on the steps. [00:13:38] Speaker 04: But when they're bringing members of the public in or as part of their official capacity, participating in a demonstration or First Amendment activity, but that's still discretionary. [00:13:51] Speaker 03: Your honor, it may be discretionary in the sense that the members get to choose what events they want to hold themselves, but they're holding the event themselves. [00:13:59] Speaker 03: And if they want to invite others in, that's okay. [00:14:01] Speaker 03: They're not sort of going out. [00:14:03] Speaker 03: What the problem or potential problem that was identified with the previous version of the regulation was, was that members of Congress could advocate for certain things and say, I'm going to let you speak and I'm going to let you speak. [00:14:14] Speaker 03: This is them out there speaking themselves. [00:14:17] Speaker 03: And if they want to invite people to join them, they're able to do that. [00:14:20] Speaker 04: So it is the member speaking themselves, not necessarily a member standing, you know, standing by while other people are speaking. [00:14:30] Speaker 03: You know, I don't know that there's a specific, I don't really think that it entirely, I mean, I think that this event itself is one that the member is endorsing. [00:14:39] Speaker 03: You know, the member is saying, I am holding this event, this is an event I'm holding in my official capacity. [00:14:44] Speaker 03: And therefore, because of that, and because of the underlying trust of members of Congress, and them sort of taking responsibility for the fact that this is the event that they're holding, that's the reason that this is treated differently and doesn't implicate some of the problems that plaintiff is [00:14:59] Speaker 04: is okay because it's in their official capacity and of course in their official capacity members can speak about or support whatever speech activity they want to. [00:15:09] Speaker 03: I think that's right, Your Honor. [00:15:10] Speaker 03: And again, I will say as well that if you look at the record here, the types of topics that are covered, there's no content discrimination here because the topics that are covered range the full gamut of political and social issues of the day. [00:15:27] Speaker 03: That's what Congress members are going out there on the occasions that they do this to speak about. [00:15:32] Speaker 03: It's about different [00:15:34] Speaker 03: you know, things that implicate their constituents and they're out there speaking as a member. [00:15:38] Speaker 03: Again, by regulation, it has to be in their official capacity. [00:15:43] Speaker 07: I guess my concern, again, is that following up on Judge Rao's questions, attributing good faith and intention to the members of Congress [00:16:03] Speaker 07: does not resolve the problem of safety if you allow members of the public to join in the demonstrations. [00:16:18] Speaker 07: And we know that for all kinds of different reasons, which you cite about how many threats are made, how many times members of Congress are injured, even at their own events, [00:16:33] Speaker 07: So that this notion, I'm trying to divide in my own mind the principles that Judge Green laid down that this court accepted that there can be peaceful demonstrations on the Capitol's steps, the Eastern steps, [00:17:00] Speaker 07: and that the types of events that happen on 9-11 and on January 6th, no regulation is going to provide protection because those events involve persons [00:17:21] Speaker 07: who were not going to follow any rules or regulations, who were not going to abide by physical barriers that had been placed, who damaged the Capitol bill. [00:17:36] Speaker 07: Capitol police died and were injured. [00:17:41] Speaker 07: So that type of lawlessness [00:17:50] Speaker 07: does not mean, or the government seems to be telling us it does mean, except for members of Congress, you close the steps. [00:18:03] Speaker 03: I mean, I think a few points to that. [00:18:05] Speaker 03: I mean, specifically with respect to the members of Congress, as I mentioned before, usually when these events are happening, members of Congress are telling the Capitol police ahead of time so there can be added security there in case some kind of issue arises. [00:18:18] Speaker 07: You know, counsel, and you tell us all these threats against elected officials. [00:18:27] Speaker 07: All right. [00:18:28] Speaker 07: The Capitol police are not in a position to protect against all of them, but they can do what they can. [00:18:39] Speaker 07: But once you just member to the focus in or people who haven't been screened in any way, you undercut the whole rationale. [00:18:51] Speaker 07: And it doesn't mean you can't have time, place, [00:18:56] Speaker 07: Limitations close the capital steps. [00:19:09] Speaker 07: Unless a member. [00:19:12] Speaker 07: Invites members of the public. [00:19:17] Speaker 03: Your Honor, I think that this is a reasonable trade-off that the board has made where it's saying members of the public by themselves cannot demonstrate on the steps. [00:19:25] Speaker 03: They're, of course, welcome to engage as plaintiff can here in their demonstration activity right on the sidewalks immediately in front of the steps, as well as the various other places throughout Capitol grounds. [00:19:37] Speaker 07: We distinguish between the exterior and the interior of these historic buildings. [00:19:44] Speaker 07: But for some reason, we are now parsing off the steps which are part of these buildings. [00:19:54] Speaker 07: I mean, this is classical architecture at its zenith. [00:19:58] Speaker 07: Steps were a big part of these buildings. [00:20:01] Speaker 07: They're not just rectangles. [00:20:04] Speaker 03: I think that actually helps our point. [00:20:06] Speaker 03: These are parts of the building. [00:20:07] Speaker 07: People have been demonstrating there peacefully for years. [00:20:12] Speaker 07: And you won't just close it except when a member says, you know, it's okay with me if members of the public come. [00:20:23] Speaker 03: And again, I mean, I think there are a number of limitations on what's going on when Congress members are doing it that allows the board to treat that as a qualitatively different situation than when members of the public just sort of on a whim are out there doing it. [00:20:37] Speaker 07: No whim. [00:20:38] Speaker 07: I'm just trying to deal with the realities of life. [00:20:42] Speaker 07: Everybody's got a gun. [00:20:46] Speaker 07: Members who run for office, who take positions, [00:20:53] Speaker 07: individuals who take positions run the risk of injury. [00:21:01] Speaker 07: And people are willing to take those risks. [00:21:05] Speaker 07: But does that mean we transform the Capitol building, which means so much as an emblem of democracy? [00:21:19] Speaker 07: Our legislative building is now closed off [00:21:23] Speaker 07: beyond reasonable time, place, and circumstance. [00:21:27] Speaker 07: That's all I'm getting at. [00:21:28] Speaker 07: I don't understand how you can cite all these statistics about all these additional threats to members of Congress and think that we're going to be fine if the member of Congress sponsors an event and invites members of the public. [00:21:46] Speaker 03: Senator, I mean, again, I think the board thinks that that's a qualitatively different situation. [00:21:50] Speaker 03: I mean, just to address, I think, the other question here, [00:21:53] Speaker 03: I don't think that this in any way disrespects the principle that there are numerous places on Capitol grounds where people can protest and can speak to their legislators and the public. [00:22:04] Speaker 03: That's exactly the trade-off that the board has made here, is it's directed the conduct off of the stairways themselves. [00:22:10] Speaker 03: Again, the stairways lead up to non-public entrances for the House and the Senate buildings. [00:22:15] Speaker 03: If you go through the doors at the top, you're right at the House and the Senate chambers. [00:22:20] Speaker 03: This is where the board has determined it needs a buffer zone so that if things turn violent, it's not saying all protests are violent, but if they turn violent, it needs to have sufficient time and space to respond to that situation. [00:22:34] Speaker 03: And this is the buffer zone that it thinks has explained is necessary in order to provide at that time and space. [00:22:40] Speaker 04: Can I just ask you a factual question? [00:22:42] Speaker 04: Is there any dispute about the elevated area [00:22:46] Speaker 04: right immediately beneath the steps. [00:22:49] Speaker 04: Is that considered part of the sidewalk or is that area also in dispute? [00:22:55] Speaker 04: The record is a little bit unclear. [00:22:57] Speaker 03: There's the set of steps that comes down and then there's sort of an elevated area. [00:23:02] Speaker 03: That is the sidewalk itself and it's elevated because it's a curb where after the curb there's an area where cars are able to drive and that sort of runs [00:23:11] Speaker 04: The area you don't dispute, that's a traditional public forum. [00:23:14] Speaker 04: It's a sidewalk where people can protest. [00:23:16] Speaker 04: So right at the bottom of the steps. [00:23:18] Speaker 03: The one clarification I should just say is that that's true in front of the House and Senate stairways, in front of the Capitol steps, in the steps that lead to the Capitol rotunda in the middle. [00:23:28] Speaker 03: Right in front of it is the roadway. [00:23:29] Speaker 03: So that's an area where you're not allowed to protest as well. [00:23:33] Speaker 03: But there is a sidewalk that runs all the way along the front. [00:23:36] Speaker 03: It's, you know, both in front of the house and Senate stairways. [00:23:39] Speaker 03: And then there's a couple other pieces of it that sort of run all the way along the eastern side. [00:23:42] Speaker 03: And all of those are areas where plaintiff and others are allowed to engage in their desire, you know, protest activities. [00:23:50] Speaker 06: Thank you. [00:23:51] Speaker 06: All right. [00:23:51] Speaker 06: Well, I'm confused about that then, because looking at these photographs, right, I thought [00:23:57] Speaker 06: And the sidewalk is not before us because the district judge just talked about the steps. [00:24:06] Speaker 06: I know the plaintiff disagrees with that. [00:24:10] Speaker 06: But looking just at JA 115, I thought these, the northern and southern sides of the building, that those [00:24:26] Speaker 06: parts of the sidewalk could not be allowed for demonstration activities. [00:24:36] Speaker 02: Do you know anything about that? [00:24:37] Speaker 02: So, yeah, I mean, maybe the helpful... Let me just pull up the... Look at JA 117, for instance. [00:24:45] Speaker 06: This is the house steps. [00:24:47] Speaker 06: And I thought the front sidewalk [00:25:00] Speaker 06: was OK, but the north and south sections weren't. [00:25:04] Speaker 03: So, Your Honor, in front of it is OK. [00:25:07] Speaker 03: On the sides, I think there's some in the map that's in the record. [00:25:11] Speaker 03: It's red there, but the Capitol Police doesn't enforce it as to that piece because that's also a sidewalk. [00:25:19] Speaker 03: And so the places that count as sidewalks that look like traditional ordinary sidewalks, which, again, is what this court addressed in its Letterman decision, those are places where there isn't a restriction or where the Capitol Police does not enforce the restriction. [00:25:33] Speaker 04: We're just talking about the steps. [00:25:35] Speaker 03: Yeah. [00:25:35] Speaker 03: My understanding of what the district court addressed was just the stairways themselves. [00:25:41] Speaker ?: OK. [00:25:44] Speaker 03: Thank you. [00:25:44] Speaker 03: Are there any other questions? [00:25:46] Speaker 06: I have a question that I [00:25:50] Speaker 06: I would agree with you, but for this exemption. [00:25:53] Speaker 06: And I think it delegates too much authority to the members of Congress. [00:26:05] Speaker 06: And some more of these photographs indicate that some of these [00:26:13] Speaker 06: some of these demonstrations sponsored and led by members of Congress are anything but peaceful. [00:26:22] Speaker 06: And I don't know, it's not something we can take judicial notice of, I guess, but there are there are members of Congress who do not always remain peaceful. [00:26:40] Speaker 06: And that's what worries me is [00:26:44] Speaker 06: You prevented one person from a vigil, which according to the dictionary is a watch. [00:26:57] Speaker 06: It says nothing about vocal, doing anything vocal, doing anything expressive, or communicating in any way. [00:27:07] Speaker 06: And yet you've left this huge gap [00:27:15] Speaker 06: For members of Congress, and just looking at a photograph, page 156, there must be 150 people all over the steps. [00:27:29] Speaker 06: There's another photograph. [00:27:40] Speaker 06: Well, I don't have to go on with this foot. [00:27:43] Speaker 06: That's what concerns me is the exemption just seems to wipe out the intent of keeping these steps, not keeping them safe for the members of Congress, keeping them away from demonstrations as they're defined in this definition. [00:28:12] Speaker 03: I want to make one clarification before I get to the heart of your question just about about plaintiffs demonstration activity specifically if you look at JA 16 JA 24 JA 403 and particularly JA 403 which is paragraphs 35 to 36. [00:28:29] Speaker 03: The events that he has proposed holding are ones where they would be praying out loud. [00:28:35] Speaker 03: They would attract large groups. [00:28:37] Speaker 03: He would be holding signs that express particular views. [00:28:40] Speaker 03: I just want to make clear that this isn't you know it [00:28:42] Speaker 03: part of what the board is worried about is the sort of activity that is organized and conspicuous expressive acts that are likely to draw a crowd, that those are likely to create security and access concerns, especially because things are inherently unpredictable and can change on the turn of a time. [00:28:58] Speaker 06: The demonstration activity and all the ones you've listed can be done by just one person. [00:29:04] Speaker 03: It can be done by one person, but I think there's two important respects to that. [00:29:09] Speaker 03: One is the Supreme Court's Heffron case makes very clear that the board is allowed to consider things sort of in the aggregate. [00:29:16] Speaker 03: And so it's not just a question about one person. [00:29:17] Speaker 03: It could be a bunch of single people. [00:29:20] Speaker 03: And the real problem is that it is both the case that a person, one person can pose a threat, but also that something that starts as one person or starts as something that's peaceful can quickly turn into something that's violent. [00:29:32] Speaker 03: And all that the board is trying to do here [00:29:34] Speaker 03: is preserve enough space and time so that they can do something. [00:29:38] Speaker 03: I mean, just to return, I think, to the heart of your question about the member exemption. [00:29:42] Speaker 03: I mean, again, I think the way that the analysis runs, and we have sort of two separate questions here, one about whether or not this is a public forum, and then a separate about whether or not this passes intermediate scrutiny because it's a time-placed manner restriction. [00:29:56] Speaker 03: And I think your question really goes to the second bucket. [00:30:00] Speaker 06: And here it's a nonpublic forum myself, so it has to be reasonable. [00:30:05] Speaker 06: And that's why I don't think this exception that swallows the rule that prevents demonstrations. [00:30:15] Speaker 06: I have a problem with whether that's reasonable. [00:30:17] Speaker 03: I mean, I think it's reasonable. [00:30:19] Speaker 03: So first of all, these demonstration activities by members of Congress are, as far as I understand, are relatively few and far between, just to give you a sense of how often they're happening. [00:30:29] Speaker 03: But again, the reason that the board thinks that they're different and treats them as qualitatively different is that this is, and all of the things that are in the record happened before they changed the regulation. [00:30:41] Speaker 03: But what the regulation makes very clear is that [00:30:44] Speaker 03: these are events that are happening in the Congress members official capacity. [00:30:48] Speaker 03: This is them throwing something, you know, hosting an event. [00:30:52] Speaker 03: And so the likelihood that they're going to [00:30:54] Speaker 03: continue to stay there if things turn violent or host an event that they know is likely to cause some kind of threat to the Capitol is the reason that the board, you know, it doesn't think that those situations are very likely. [00:31:06] Speaker 03: And it also is able to coordinate with them ahead of time and post additional security in those particular circumstances that it can't have around the clock. [00:31:18] Speaker 07: Okay. [00:31:21] Speaker 07: So this is going to be by invitation only. [00:31:24] Speaker 03: Your Honor, I don't think it is by invitation only. [00:31:26] Speaker 03: This is the Congress members. [00:31:28] Speaker 07: That's the problem, isn't it? [00:31:30] Speaker 07: One person is out there and passers-by want to join that person in a vigil or in prayers. [00:31:38] Speaker 03: Your Honor, I mean, I think that's the reason that it's been. [00:31:40] Speaker 07: It may be that the leader has announced that this vigil will be occurring and the speaker will be there. [00:31:53] Speaker 07: And hundreds of people want to come. [00:32:00] Speaker 03: I mean, I think that's the reason that the board is worried about it being an individual member of the public when it's someone from Congress. [00:32:07] Speaker 03: There's advanced planning and there's things that are able to go on and additional protection. [00:32:11] Speaker 07: He is a member of Congress. [00:32:14] Speaker 07: That's correct. [00:32:15] Speaker 07: He wants to join the vision. [00:32:18] Speaker 07: And the leader of the visual has announced [00:32:22] Speaker 07: He will be conducting this vigil. [00:32:25] Speaker 07: And a lot of other people want to come. [00:32:27] Speaker 07: So you end up with a crowd, hundreds of people. [00:32:31] Speaker 03: Shannon, again, I mean, the way that the regulation reads, it has to be in the member's official capacity. [00:32:36] Speaker 03: I don't know if they're just informally joining that that would count. [00:32:39] Speaker 03: It's usually them hosting an actual event or going out to speak themselves. [00:32:43] Speaker 07: Formal invitations, because a member can post something by saying, I'm happy to sponsor that vigil. [00:32:52] Speaker 07: All right, but you know, the members, you can't control everything that goes on even for events they sponsor. [00:33:05] Speaker 03: Your honor, I mean, that's true, but this reflects that reality because again, these are happening, you know, not with a huge amount of frequency and the Capitol police can have additional security in those situations because these are people who work at the Capitol and are working with the Capitol police when they're hosting these events to make sure that they stay safe. [00:33:24] Speaker 07: You're saying these events happen infrequently. [00:33:28] Speaker 07: I don't know where the statistics are on that. [00:33:31] Speaker 07: And of course, around election time, [00:33:34] Speaker 07: There are lots of events. [00:33:36] Speaker 07: Secondly, I'm concerned that you acknowledge that the Capitol Police, even though these areas are designated in red, they are in their discretion just deciding where to enforce these things or not. [00:33:54] Speaker 07: So even though somebody's in the red area, maybe if the Capitol Police like them, they will not be in arrest. [00:34:04] Speaker 03: You know, I don't think that's right. [00:34:05] Speaker 03: I think this is the way again, I think what, what the Capitol police has done is it has distinguished between the places that look just like traditional public fora that look like the ordinary public sidewalk, the ordinary public park, the stairways do not look like a traditional, you know, this is not a traditional place where people would go to express ideas and communicate ideas. [00:34:27] Speaker 03: And that's the reason for the distinction. [00:34:28] Speaker 07: All right. [00:34:30] Speaker 07: You can go back to ancient Greece. [00:34:33] Speaker 07: All right, and look at the steps to where people spoke. [00:34:42] Speaker 07: So, you know, I mean, even under Judge Henderson's question about a nonpublic forum, aren't there problems with the exception [00:34:55] Speaker 03: Your Honor, again, I don't think that there are problems because when you're asking the question in the non-public forum, you're asking the question of reasonableness, and particularly, are you preserving this property for its intended use? [00:35:08] Speaker 03: And here, I think that's exactly what the board is doing. [00:35:11] Speaker 03: The board is saying these are steps that lead to non-public entrances for the capital. [00:35:17] Speaker 03: So people who work there are allowed to be there and protest because that is the place they work. [00:35:22] Speaker 03: Otherwise, you make sure there aren't demonstration activities happening there that can threaten either the safe passage or access to actually getting into or out of the Capitol building. [00:35:34] Speaker 03: And so it's preserving them the stairways for what they're intended to do. [00:35:38] Speaker 03: And that's the question that gets asked when you're asking the reasonableness question. [00:35:42] Speaker 07: So what happens to all the camera people who show up and block the passageways? [00:35:51] Speaker 07: I don't understand this notion about, well, we can have all these demonstrations in the streets and the passageways. [00:35:57] Speaker 07: I mean, that blocks capital police ability as well. [00:36:05] Speaker 03: To the extent that there are protests that are happening on the sidewalks, the regulation specifically says that the protest can't block, can't impede the flow of traffic. [00:36:16] Speaker 03: That's part of what's built into them doing a demonstration in that area. [00:36:22] Speaker 03: I mean, to the extent that a member of Congress is hosting one of these events, again, usually the Capitol Police know ahead of time so they can alert members of Congress, this is going to be happening, use a different exit. [00:36:33] Speaker 03: And while the event is happening, there are people on the steps, but then they are cleared out as soon as the event is over. [00:36:43] Speaker 06: But 12.2.20, which sets out demonstrations, activity by members of Congress, [00:36:52] Speaker 06: as I am looking at it, doesn't say anything about giving notice to the Capitol Police ahead of time. [00:37:02] Speaker 03: Sure, it isn't explicitly required. [00:37:05] Speaker 03: But again, these are people who work at the Capitol and the Capitol police are there to protect them. [00:37:09] Speaker 03: And my understanding is that the way, you know, the normal practice is for them to give advance notice that this is going to happen. [00:37:16] Speaker 03: You know, they don't have to, but they often do. [00:37:19] Speaker 03: And so then the Capitol police are able to post additional security. [00:37:23] Speaker 06: They decide not to. [00:37:27] Speaker 06: There's no way the Capitol Police would be prepared for, say, a demonstration of 200 or 300 people. [00:37:33] Speaker 03: Your Honor, my understanding is that usually, especially when it's a big event, it's something that is communicated to the Capitol Police Board head time. [00:37:43] Speaker 03: Because again, the Capitol Police Board is working closely with the members of Congress. [00:37:47] Speaker 03: They're there to protect the members of Congress. [00:37:50] Speaker 03: And so usually the way that this runs in practice is that there's advance notice, there's planning about what kinds of things are you going to have, and then they can also post additional security as needed. [00:38:00] Speaker 07: Well, actually, the District of Columbia has some permit requirements. [00:38:04] Speaker 07: The Park Service has some permit requirements. [00:38:08] Speaker 07: All these groups get together and talk to one another, and they probably do it electronically now. [00:38:12] Speaker 07: So when an application comes in, they all know. [00:38:16] Speaker 07: So yeah. [00:38:22] Speaker 07: So you would want the court to affirm in full [00:38:29] Speaker 03: Your honor, we're asking the court to reverse. [00:38:36] Speaker 03: Obviously, if the court disagreed with the government's arguments on the merits analysis, we think that the proper scope of the remedy, it's very clear under the Supreme Court's recent decision in CASA, which was decided after the district court's decision. [00:38:52] Speaker 07: But you would affirm in full the regulation [00:38:59] Speaker 07: as consistent with the First Amendment. [00:39:03] Speaker 03: Your Honor, we'd ask this court to uphold the regulation as consistent with the First Amendment. [00:39:12] Speaker 06: All right. [00:39:13] Speaker 06: Thank you for some time in reply. [00:39:15] Speaker 06: Mr. Dixon. [00:39:28] Speaker 01: As it goes. [00:39:30] Speaker 01: May I please the court, Josh Dixon, on behalf of appellee Reverend Patrick Mahoney. [00:39:35] Speaker 01: The district court got this case exactly right. [00:39:38] Speaker 01: The Capitol grounds is a traditional public forum. [00:39:42] Speaker 01: The regulation is not narrowly tailored. [00:39:45] Speaker 01: And the district court did not abuse its discretion in entering a universal injunction against the regulation. [00:39:53] Speaker 06: Mr. Dixon, before it leaves my mind, what if we locked off the member exemption? [00:40:00] Speaker 01: It would, the regulation would still be unconstitutional under the district court's own reasoning. [00:40:05] Speaker 01: The Capitol grounds are a traditional public forum. [00:40:09] Speaker 01: Even if the members are not allowed on the Capitol steps, individuals are allowed to have lunch, walk their dogs, sit and talk the issues of the day, just like they would be in any other sidewalk, street, park, whatever the case may be. [00:40:24] Speaker 01: And the regulation is still not narrowly tailored under the precise logic of leader. [00:40:30] Speaker 04: It seems to me the district court's opinion does create some line drawing problems. [00:40:39] Speaker 04: So district court says we're only addressing the steps below the barricade that was put up by the capital police, but that's a temporary barricade. [00:40:50] Speaker 04: So below the barricade is now, under the district court's reasoning, a traditional public forum. [00:40:56] Speaker 04: What if the Capitol police move the barricade, either down the steps or higher on the steps? [00:41:03] Speaker 04: I mean, to affirm the district court's ruling, we'd have to conclude that some part of the steps is a traditional public forum. [00:41:11] Speaker 04: And I'm not sure [00:41:13] Speaker 04: how we would draw that line. [00:41:15] Speaker 01: I don't think that's right, Your Honor. [00:41:17] Speaker 01: The reason that Reverend Mahoney wanted to go out there on the Capitol steps, I'm not sure that this timing is crystal clear from the briefing, but Representative Bush was out there July 31st, give or take, until August 3rd, 2021. [00:41:28] Speaker 01: Reverend Mahoney decided to go out to literally the exact same place where Representative Bush held her four or five-day demonstration a few days later, I believe was August 12th of 2021. [00:41:41] Speaker 01: He's not seeking to go above the barricades. [00:41:43] Speaker 01: Representative Bush didn't go above the barricades. [00:41:46] Speaker 01: This court doesn't have to rule above the barricades in order to decide this case. [00:41:51] Speaker 04: I know, but the determination that below the barricades is a traditional public forum means that the Capitol Police can't just close it off for security interests, for instance. [00:42:03] Speaker 01: It may very well be that the Capitol Police have a different interest above the barricades. [00:42:08] Speaker 01: Presumably, they put the barricades there for a reason. [00:42:10] Speaker 01: We didn't explore that because Reverend Mahoney, again, didn't want to demonstrate above the barricades. [00:42:16] Speaker 01: But it may very well be that the considerations that caused the Capitol Police to close the steps above the barricades to even individuals sitting, talking, having lunch, would also justify prohibition on speech. [00:42:28] Speaker 04: Most though, the fact that people are engaging in activities below the barricade perhaps suggests that below the barricade is a designated public forum, or sometimes the Capitol police allow that area to be, you know, a designated public forum where people can engage in First Amendment activity. [00:42:47] Speaker 01: I respectfully disagree with that framing. [00:42:49] Speaker 01: The Jeanette Rankin Brigade case in 1972 said the Capitol grounds are a public forum. [00:42:54] Speaker 04: The leader in this question, are the steps part of the building? [00:42:58] Speaker 04: Are they part of the grounds? [00:42:58] Speaker 04: I mean, that's the whole crux of this case. [00:43:01] Speaker 01: Understood, your honor. [00:43:01] Speaker 01: But leader men follows up with that and says the working presumption is that the Capitol grounds are a public forum or to demonstrate that it's not. [00:43:09] Speaker 01: The government has to show that the property in question is inconsistent with public assembly and debate. [00:43:14] Speaker 01: On this record, the government cannot make that showing given what it allows on the steps. [00:43:19] Speaker 04: Let me ask you another question. [00:43:21] Speaker 04: So if the Capitol police had information that there was some threat to the Capitol, that people were planning some kind of violent demonstration or violent activity on the Capitol grounds, could they then close the steps to that activity? [00:43:37] Speaker 01: I believe so. [00:43:38] Speaker 01: And the traffic regulations give the board that authority. [00:43:42] Speaker 01: I don't remember what year it was. [00:43:43] Speaker 01: I believe it was January 6th, 2023. [00:43:45] Speaker 01: They did for that day. [00:43:47] Speaker 04: If they can close the steps, then doesn't that take it out of the realm of being a traditional public forum? [00:43:55] Speaker 04: If even on your account, they can close the steps in order to preserve the security of the Capitol, then at most [00:44:02] Speaker 04: It's at times a designated public forum, but not a traditional public forum. [00:44:06] Speaker 01: To be clear, I'm not suggesting that the Capitol Police could close the steps permanently. [00:44:11] Speaker 01: What they have done in the past is close it on January 6, for example, 2023. [00:44:15] Speaker 01: That's a permissible restriction, even in a traditional public forum. [00:44:19] Speaker 01: But closing it fully creates a non-public forum by the government's own Ipsy Dixit, which we know the government can't do under the grace opinion, under the leader opinion. [00:44:32] Speaker 04: So what if the Capitol Police were to say, we believe the Capitol is, you know, credibly under threats of violence most of the time. [00:44:40] Speaker 04: And so we close the steps to First Amendment activity. [00:44:44] Speaker 04: On your reasoning, that would be okay. [00:44:47] Speaker 04: But that also is incompatible with the idea that it's a traditional public forum. [00:44:51] Speaker 01: We would, I mean, obviously this is a hypothetical. [00:44:53] Speaker 01: I don't know the evidence that we would be talking about. [00:44:55] Speaker 01: There could be a set of circumstances in which a closure more than a day would be permissible. [00:45:00] Speaker 01: I mean, in the wake of January 6th, the Capitol Police closed entire Capitol Square, which is the city block. [00:45:07] Speaker 01: until we filed our lawsuit in August of 2021. [00:45:11] Speaker 01: So it was closed for nine months. [00:45:13] Speaker 01: Part of the reason we filed our lawsuit was because we believed that was too strict of a regulation. [00:45:18] Speaker 01: And in fact, after we filed the lawsuit, the government did reopen capital square for demonstrations. [00:45:25] Speaker 01: You know, it may be that more than a day is permissible given the nature of the threat, but we would have to evaluate that on a case by case basis. [00:45:33] Speaker 01: What we do know is that today the steps below the barricades are open to members of Congress at their whim, individuals to sit, stand, eat, walk, pray, whatever they want to do on them. [00:45:48] Speaker 01: I want to address, if I may, the member exemption because I don't think that that was clear. [00:45:55] Speaker 01: The way that the member exemption used to work, it had three parts. [00:46:00] Speaker 01: members can be exempt from demonstrations they organize, demonstrations they sponsor, and demonstrations they advocate for. [00:46:08] Speaker 01: When we originally sued, advocate for was part of the exemption. [00:46:12] Speaker 01: As part of the settlement in this case, that was taken out of the traffic regulations. [00:46:16] Speaker 01: So the two parts of the member exemption now are the member organizes or sponsors to demonstration. [00:46:24] Speaker 01: The member organizes, that means that's the member's speech. [00:46:28] Speaker 01: If the member sponsors it, that means that the member is going to bat for someone else, moms for gun control, whatever the case may be. [00:46:40] Speaker 01: The speaker has the authority to give that organization or individual the right to speak on the steps unencumbered by the traffic regulations. [00:46:49] Speaker 04: Well, it seems, I mean, you're talking about 12.2.20 now. [00:46:56] Speaker 01: Right, I believe that's correct regulation. [00:46:59] Speaker 04: So that is connected by and so now there's an exemption if it's being done in the members official capacity. [00:47:08] Speaker 04: It's being organized or sponsored and the members personally in attendance. [00:47:13] Speaker 01: Correct. [00:47:14] Speaker 01: I'm sorry. [00:47:14] Speaker 04: All those three things are required in part B. You can't just sponsor or do something in your official capacity. [00:47:19] Speaker 04: It has to be all three, A, B, and C. Right. [00:47:22] Speaker 01: But in B, it says organized or sponsored. [00:47:25] Speaker 01: And so the member to sponsor, it's being done in the member's official capacity, whatever that means. [00:47:32] Speaker 01: sponsored and then the members personally present. [00:47:35] Speaker 01: So the member can in his or her official capacity sponsor the demonstration activity of someone else and it can continue so long as the member is personally in attendance. [00:47:47] Speaker 04: So let's assume for a moment. [00:47:48] Speaker 04: I know you disagree with this, that it's a non-public forum, that the steps are not public forum. [00:47:53] Speaker 04: Why is the member exemption unreasonable? [00:47:59] Speaker 01: Well, the regulation is put aside the member exemption for just a second. [00:48:05] Speaker 04: If it is a non-public forum, then they can be closed to most demonstration activity. [00:48:11] Speaker 04: And I think Judge Henderson and I have focused on this exemption as being [00:48:18] Speaker 04: of concern in terms of the reasonableness of the regulation. [00:48:21] Speaker 04: So can you speak to that? [00:48:22] Speaker 01: I can. [00:48:22] Speaker 01: Let me just say this real quickly. [00:48:24] Speaker 01: The Jews for Jesus case was closed to all First Amendment activities. [00:48:29] Speaker 01: That regulation was so broad. [00:48:31] Speaker 01: The court said it doesn't matter what type of form it is. [00:48:33] Speaker 01: This regulation is similarly so broad. [00:48:36] Speaker 01: There's no restriction on the demonstration activity has to be the type that draws attention. [00:48:41] Speaker 01: It could cover two people talking on the [00:48:43] Speaker 04: So over breath makes it unreasonable in part, in your view. [00:48:47] Speaker 01: In part, yes, Your Honor. [00:48:48] Speaker 01: This member restriction also is unreasonable as we briefed it under the unbridled discretion doctrine. [00:48:55] Speaker 01: As Judge Millett concluded, there is no limitation on the type of [00:49:01] Speaker 01: speech that a member can choose to sponsor. [00:49:05] Speaker 01: So if a group comes in and says, hey, we want to speak, the member in his or her absolute discretion can allow that individual or that group to speak on the steps. [00:49:16] Speaker 01: That's an unbridled discretion problem, even if it's a nonpublic forum under Manskey. [00:49:22] Speaker 04: What do you make of the government's argument that because it has to be in the member's official capacity, [00:49:29] Speaker 04: then we're not as concerned about unbridled discretion because members obviously have discretion about what type of speech they want to engage in or sponsor. [00:49:43] Speaker 01: This is the government authorizing the speech of a third party. [00:49:48] Speaker 01: Whether we're talking about that in the member's personal capacity or individual capacity, it doesn't matter. [00:49:54] Speaker 01: If someone is hired to be a censor, they are acting in their governmental capacity, but they are still censoring. [00:50:01] Speaker 01: Here, the members are, whatever capacity they're acting in, acting as a gatekeeper in their absolute discretion as to who gets to speak on the Capitol steps. [00:50:10] Speaker 04: I didn't think the same problem would exist if the only exemption was for actual member speech, you know, members themselves speaking, you know, without being able to, you know, without having any discretion to include or sponsor other people's speech. [00:50:27] Speaker 01: Can individuals come and participate with the member and the member's speech in this hypothetical? [00:50:32] Speaker 04: No, the regulations otherwise, you know, no demonstrations, but members can speak on the steps in their, you know, in their official capacity. [00:50:40] Speaker 01: There may be, in that situation, like the presidential inauguration can occur. [00:50:47] Speaker 01: It may be that if there is a law that is passed that allows a certain type of demonstration, say a 9-11 remembrance or something along those lines, then that the speech would, just like in the Answer Coalition case, that might be governmental speech. [00:51:06] Speaker 01: But when an individual congressperson goes out and expresses his or her view on the capital steps, that's not governmental speech. [00:51:13] Speaker 01: That's the congressperson's view. [00:51:15] Speaker 01: Even if it's official, the congressperson doesn't have the authority to announce the views of the United States government. [00:51:21] Speaker 01: For example, Representative Bush's demonstration activity protests [00:51:25] Speaker 04: I'm not suggesting necessarily it would fall under governmental speech, but that it would be reasonable to say, we have security interests and demonstrations on the steps, and the only type of speech we're going to allow is that of members going in and out who may want to speak to the public or to the press or whoever. [00:51:44] Speaker 04: Would that be reasonable? [00:51:46] Speaker 04: If it's a non-public forum, would that be a reasonable thing connected to the purposes of the regulation? [00:51:52] Speaker 01: My one hesitation is there's no members that are going up and down the steps and entering the building that way, typically. [00:51:59] Speaker 01: I mean, the government entered into a binding stipulation in this case saying that members typically enter the building through means other than the steps. [00:52:07] Speaker 01: And so to conceptualize that the steps is their quote unquote workplace, they're just in passing, walking by, it's just not accurate. [00:52:17] Speaker 01: I'm sorry, Your Honor. [00:52:18] Speaker 07: Their staffs, S-T-A-F-F. [00:52:21] Speaker 01: The record, I believe, establishes the exact same thing. [00:52:24] Speaker 01: And that's another point about this member exemption. [00:52:26] Speaker 01: Are we granting it because they work in the Capitol or because their congresspeople and their speech is special somehow? [00:52:33] Speaker 01: If it's because they work in the Capitol, then why aren't their capital receptionists given the same authority? [00:52:39] Speaker 01: Why aren't the groundskeepers given the same authority? [00:52:42] Speaker 01: This is not just about working in the Capitol. [00:52:44] Speaker 01: It's because we, the Capitol police, is valuing their speech different from the speech of the rest of us, which is a significant... [00:52:53] Speaker 01: problem. [00:52:55] Speaker 01: I mean, we're talking about speaker discrimination on the basis of speaker identity. [00:53:01] Speaker 04: This right here, for instance, on the White House grounds, the president or vice president or other senior officials can speak on the White House lawn, but members of the public cannot. [00:53:13] Speaker 01: I don't believe this court has ever held that the White House lawn is a traditional public forum. [00:53:17] Speaker 01: We're talking about speaker based identity in a traditional public forum, which is impermissible. [00:53:24] Speaker 01: I want to make one more clarification. [00:53:31] Speaker 01: The way that this case was litigated, we challenged the steps themselves. [00:53:36] Speaker 01: the sidewalks at the base. [00:53:39] Speaker 01: And then for the center steps, the rotunda steps, there's not a raised sidewalk right there. [00:53:43] Speaker 01: There's just the plaza. [00:53:45] Speaker 01: And so we allege that all three of those areas, the sidewalks, the steps, and the plaza at the base were part of the area where Reverend Mahoney wants to demonstrate. [00:53:54] Speaker 01: And the district judge on page 4JA446 noted that those were the areas in question. [00:54:03] Speaker 01: I would also like to point out that under the demonstration areas map on page 396. [00:54:10] Speaker 06: Well, let me get back to what you just said. [00:54:12] Speaker 06: I don't see the significance of that since he explicitly. [00:54:16] Speaker 06: At least in 2 or 3 places said we're talking I'm ruling only about the steps and I think he may have even. [00:54:25] Speaker 06: said how many steps there were, I can't remember now. [00:54:28] Speaker 01: There was a place where he did that, but as I understand the opinion, he was defining the steps, using the term steps, quote, to mean these areas that he's described on JA446. [00:54:40] Speaker 01: You can see in the little, the map that he has, he has, Judge Boesberg has circled the areas in question on that page. [00:54:48] Speaker 01: The government [00:54:50] Speaker 01: today and in their reply brief says, oh, we're not talking about the sidewalks to the north and south of the capital steps at the base. [00:55:02] Speaker 01: We agree that those are a public forum. [00:55:05] Speaker 01: If you look at the demonstration map on page 396, sorry, 394, those sidewalks are in the no demonstration zone. [00:55:17] Speaker 01: There are four little slivers of sidewalks on the Eastern Front, two in front of the House and Senate, and then two sort of in the middle. [00:55:25] Speaker 01: And then as the sidewalks wrap around the South and North, those are not yellow. [00:55:30] Speaker 01: Those are in a no demonstration zone. [00:55:32] Speaker 01: So, leader men in 2001 said the Eastern Front sidewalk is a traditional public forum. [00:55:40] Speaker 01: The board [00:55:44] Speaker 01: after that case issued this demonstration map that had the sidewalks in the no demonstration zone. [00:55:51] Speaker 01: So I don't know what the government says in its brief that it doesn't enforce the no demonstration zone around those sidewalks. [00:56:00] Speaker 01: I don't remember which of your honors said it, but that's a problem of discretion. [00:56:03] Speaker 01: The document allows prosecution for being in that area and the government in this discretion is saying, well, we're not gonna prosecute that. [00:56:16] Speaker 01: I would encourage your honors to look at Leiderman. [00:56:19] Speaker 01: The analysis there is exactly what we're asking the court to do in the context of narrow tailoring. [00:56:25] Speaker 01: This is a near total ban. [00:56:27] Speaker 01: It's an under inclusive ban in so far as it allows tourists, joggers, dog walkers, whatever, and it allows members of Congress to go out there. [00:56:37] Speaker 01: And then there are many less restrictive means, just like in Leiderman permit. [00:56:43] Speaker 01: The board can impose a permit requirement. [00:56:45] Speaker 01: The board can impose durational limitations. [00:56:47] Speaker 01: The board can impose group size limitations. [00:56:49] Speaker 01: I heard the government attorney say a number of times that, well, members of Congress are different because they typically announce that they're going to demonstrate. [00:56:59] Speaker 01: Well, the board could require that of the rest of us. [00:57:02] Speaker 01: I mean, the board could impose a requirement that the demonstration be announced. [00:57:06] Speaker 01: The board could impose a permit requirement as it does elsewhere on the capital grounds. [00:57:15] Speaker 07: So your challenge, and you say this will be confirmed in 446, JA 446, is not only the seven eastern steps, but the sidewalks and the base [00:57:34] Speaker 01: Yes, sure I can I'm happy to point this out in the picture, but the Senate and the House steps are almost identical. [00:57:41] Speaker 01: I'll talk about them first. [00:57:42] Speaker 01: They have a raised sidewalk up from the Plaza around all 3 sides North, South and East and then they go up into the steps. [00:57:49] Speaker 01: So we're the area in question is all three sidewalks and the steps. [00:57:56] Speaker 01: The in leader men, this court already held that the sidewalk immediately east of the steps is a traditional public form. [00:58:02] Speaker 07: So that's not really a dispute of the steps before it. [00:58:06] Speaker 07: And, uh, [00:58:11] Speaker 07: I think it's fascinating everybody avoids the case where we weren't dealing with the Eastern steps, which I thought was what this is about. [00:58:21] Speaker 07: But in any event, so you're saying that any of the steps, any of the sidewalk and any of the bases [00:58:37] Speaker 01: So the roads. [00:58:38] Speaker 07: Associated with the Capitol building are a traditional First Amendment form. [00:58:50] Speaker 01: Yes, Your Honor. [00:58:52] Speaker 01: The center steps or the rotunda steps, if we've called them, they're different in that they don't have a little raised base, but it's a plaza. [00:58:59] Speaker 01: So like Frisbee, it's a street. [00:59:01] Speaker 01: It's also a traditional public form. [00:59:04] Speaker 01: And to be clear, [00:59:05] Speaker 01: I'm in agreement with your honor that Dellums decides this case. [00:59:08] Speaker 01: I mean, Dellums cited Nicholson. [00:59:10] Speaker 01: Nicholson very clearly held that the area in question is a traditional public forum. [00:59:14] Speaker 01: I think this court is bound by it. [00:59:16] Speaker 01: But there are, in addition to that, reason upon reason, precedent upon precedent, why the steps are a traditional public forum. [00:59:24] Speaker 07: So if you were to prevail 100% on your claim, all the capital steps would be [00:59:34] Speaker 07: a traditional first amendment form up to the beer. [00:59:37] Speaker 07: No, your honor, the way to see what you're excluding because these maps, um, it wasn't clear to me exactly what the district court was focusing on, much less what you were seeking. [00:59:56] Speaker 01: There are on the Senate and House, approximately seven steps to a little landing, then approximately 10 more steps to another little landing where there are barricades. [01:00:06] Speaker 01: We are seeking the sidewalk around the steps up to the barricade. [01:00:11] Speaker 01: In the rotunda, it's a little bit different. [01:00:14] Speaker 01: Again, there's not sidewalks at the base. [01:00:16] Speaker 01: There's just a plaza. [01:00:17] Speaker 01: There are seven steps, and then the barricade. [01:00:20] Speaker 01: So we're seeking up to the barricades in those steps as well. [01:00:23] Speaker 07: Streets plus seven steps. [01:00:26] Speaker 01: In the center. [01:00:27] Speaker 01: In the center, yes. [01:00:28] Speaker 07: Everywhere. [01:00:29] Speaker 07: Center, the east, and the west. [01:00:32] Speaker 01: There's a little bit different configuration. [01:00:34] Speaker 01: There's 18 steps on the house and senate side, and then seven in the center. [01:00:40] Speaker 07: So the center are the only seven steps that are addressed here. [01:00:45] Speaker 01: There are only seven that are addressed. [01:00:47] Speaker 01: There are, I don't remember how many above the steps to the plaza at the top, but we're not, again, we're not seeking a ruling with respect to those steps, nor are we seeking ruling with respect to any steps on the western side or frankly anywhere else. [01:01:00] Speaker 01: It's just these three sets of stairs on the eastern front. [01:01:06] Speaker 07: And what you're describing as the rotunda. [01:01:09] Speaker 01: In the center. [01:01:10] Speaker 01: In the center. [01:01:11] Speaker 01: Yes, your honor. [01:01:12] Speaker 01: And then, of course, house and Senate as well, those three sets of steps. [01:01:17] Speaker 06: Can I ask you how you define vigil? [01:01:21] Speaker 06: The dictionary says it's a watch, and I think I've led my clerks on a merry-go-round about whether silent vigil is redundant. [01:01:34] Speaker 06: that term is used and the as I understand the record Reverend Mahoney along with either his family or a few people and I know it's not just limited to this but wants to stand silently [01:01:55] Speaker 06: before Christmas, before Easter, and actually the dictionary says that was the time in religious terms that a vigil was held on the eve of a religious holiday. [01:02:08] Speaker 01: The demonstration activity that formed the basis of the claim here was a gathering with Reverend Mahoney, his wife, three or four other people holding sign that advocates for a position. [01:02:22] Speaker 01: That's exactly what he was doing when he was arrested on April, I'm sorry, August 12th, give or take, of 2021. [01:02:29] Speaker 01: So that's what forms the basis of the demonstration activity here. [01:02:32] Speaker 01: It's holding a sign advocating for a cause. [01:02:39] Speaker 06: OK, I just think that vigil is different from protest, rally, march, gathering, particularly since this also includes a one-person vigil. [01:02:55] Speaker 01: I mean, I would interpret the word vigil to mean a religious leader praying quietly. [01:03:03] Speaker 06: But wouldn't you have to be a religious leader? [01:03:04] Speaker 01: No, of course not. [01:03:05] Speaker 01: I'm sorry, Your Honor, but it would include that. [01:03:06] Speaker 01: And my client is a religious leader, so I would, yes, that's right. [01:03:12] Speaker 07: I'm praying out loud. [01:03:15] Speaker 07: I just want to be clear. [01:03:17] Speaker 07: I think that Tennessee's question at least implied to me that she was distinguishing between a silent vigil, just bodies, present, and [01:03:31] Speaker 07: a speaking vigil, if I can put it that way. [01:03:34] Speaker 01: I mean, I think that a silent vigil can be communicative. [01:03:37] Speaker 01: If we're getting at the question of whether it's protected by the First Amendment, a silent vigil can be communicative. [01:03:43] Speaker 01: If you are gathering with others and you have spoken with the others about what the purpose of the gathering, that could be communicative, even if the prayer to God itself is not out loud. [01:03:55] Speaker 01: But that's why I said in my answer that it would include a religious leader quietly praying. [01:04:00] Speaker 07: My only point is that what goes on on the Capitol grounds does not preclude announcements before the vigil or whatever. [01:04:13] Speaker 08: Exactly, Your Honor. [01:04:14] Speaker 07: On the Capitol grounds as to why I am going to be there Monday through Friday from 10 to noon. [01:04:22] Speaker 01: Exactly, Your Honor. [01:04:24] Speaker 01: Your Honor, may I speak to the remedy? [01:04:27] Speaker 01: The district court here enjoying the board from enforcing the no demonstrations on in full as to the world. [01:04:39] Speaker 01: I'm sorry, your honor didn't he stay did stay that he did say that pending appeal, but that's what the injunction scope of the injunction is the board and summary judgment briefing did not oppose our request for universal relief. [01:04:53] Speaker 01: So the board has forfeit any argument that it has the universal jurisdiction. [01:04:58] Speaker 01: The government does make an Article 3 argument, Your Honor, and I do think that would not be barred by this principle, but neither this court nor the Supreme Court has ever held that a universal injunction is a jurisdictional question. [01:05:13] Speaker 01: In Casa, the Supreme Court held that [01:05:16] Speaker 01: The Judiciary Act of 1789 didn't authorize courts to enter universal relief, but it specifically reserved the question of whether Article 3 allows for universal relief. [01:05:27] Speaker 01: And I would submit that this court's [01:05:29] Speaker 01: decision in the national mining case, which authorizes vacator as the proper remedy under the APA necessarily means that universal relief is permissible under Article 3. [01:05:41] Speaker 01: If it weren't the case, then the APA would be unconstitutional. [01:05:45] Speaker 01: It could only enter relief as to the parties in an APA claim as well. [01:05:50] Speaker 01: So this court has already held that universal relief is not an Article III problem. [01:05:56] Speaker 01: So now we're back to waiver where the government has argued, or forfeiture, where the government has argued that the injunction is manifestly unjust. [01:06:05] Speaker 01: And that argument, I would submit, has been forfeit. [01:06:08] Speaker 01: In addition, they can't raise an argument for the first time in reconsideration, which is what they did. [01:06:13] Speaker 07: Well, what about the Supreme Court decision? [01:06:18] Speaker 01: Explain. [01:06:19] Speaker 01: I'm sorry, Your Honor. [01:06:20] Speaker 07: Forfeiture applies when there is no explanation given for not raising an issue of which you were aware and had the opportunity to present. [01:06:31] Speaker 07: Now we have a Supreme Court decision. [01:06:34] Speaker 07: The District Court hasn't said anything about it. [01:06:36] Speaker 01: That is true. [01:06:37] Speaker 01: The government, however, argued lack of manifest or presence of manifest injustice even prior to the casa case coming out. [01:06:46] Speaker 01: This is an argument they've been making around the country. [01:06:48] Speaker 01: They just even before casa, they just didn't make it in our case. [01:06:52] Speaker 01: So we believe this forfeit. [01:06:53] Speaker 01: I would also point out that this is a First Amendment case. [01:06:57] Speaker 01: CASA was a case about the birthright citizenship clause. [01:07:01] Speaker 01: The Supreme Court has long held since the 1940s that facial relief is uniquely appropriate in the First Amendment context, not to benefit the parties, but to benefit society. [01:07:13] Speaker 01: I mean, that language comes from the Munson case. [01:07:16] Speaker 01: So while the Supreme Court held in CASA that the Judiciary Act of 1789 doesn't authorize universal relief, the First Amendment was enacted in 1791. [01:07:26] Speaker 01: And the Supreme Court has held 50, 60 more years that facial relief is uniquely proper in the First Amendment context because of the unique importance of speech in our constitutional design. [01:07:39] Speaker 01: I would also point out that in a pre-CASA case called Griffith against H.M. [01:07:44] Speaker 01: Florida, this same issue that was presented in CASA was brought to the Supreme Court and the Supreme Court denied cert. [01:07:52] Speaker 01: Alito, Thomas, and Gorsuch would have voted to grant cert. [01:07:56] Speaker 01: Kavanaugh and Barrett wrote a separate opinion respecting why they denied cert. [01:08:01] Speaker 01: And what Justice Kavanaugh said was, this is not the proper vehicle for this case, precisely because the First Amendment presents, quote, doctrinal complexities that make this a difficult case to decide. [01:08:13] Speaker 01: And so I would submit, Your Honor, that even if you're in the business of counting noses, we don't have five noses for this being, a casa being a holding that extends to the First Amendment. [01:08:25] Speaker 07: And you don't think Justice Kavanaugh's point about complexity applies? [01:08:33] Speaker 01: I'm sorry, Your Honor? [01:08:35] Speaker 07: You do not think Justice Kavanaugh's point about complexity applies here? [01:08:42] Speaker 01: I think it absolutely applies here. [01:08:44] Speaker 01: I think because of the doctrinal complexities of the First Amendment, namely, we have granted standing exceptions under the over-breadth doctrine [01:08:54] Speaker 07: And you think this court should just go ahead and decide it, not remand it for the district court to examine the question in light of... I believe this court can decide that question, Your Honor. [01:09:07] Speaker 07: And the question is, should it? [01:09:10] Speaker 01: I think the issue has been fully vetted and this court can... We would take either, but we believe that this court can consider the question fresh. [01:09:20] Speaker 00: All right. [01:09:20] Speaker 00: Thank you. [01:09:21] Speaker 00: Thank you, Your Honor. [01:09:37] Speaker 06: about two minutes. [01:09:42] Speaker 03: Thank you, Your Honors. [01:09:43] Speaker 03: I'd just like to address a few points in my limited time. [01:09:46] Speaker 03: First of all, I'd like to return to Judge Rao's question about there being a line drawing problem. [01:09:50] Speaker 03: I do think that plaintiff has a line drawing problem here. [01:09:53] Speaker 03: The only distinction that plaintiff draws between the lower halves of the steps and the upper half of the steps is that there's a barricade [01:10:00] Speaker 03: that barricade has no talismanic significance. [01:10:02] Speaker 03: The board has allowed the public out of its own grace to use the bottom steps. [01:10:08] Speaker 03: And I think this court's cases, including Hodge and Oberwetter, are very clear. [01:10:13] Speaker 03: You're not supposed to penalize the government for opening property to the public that doesn't create a First Amendment problem. [01:10:19] Speaker 07: As a matter of grace. [01:10:21] Speaker 03: Your honor, again, this is the government's property, and it has opened it up to the public to have access to go onto the property. [01:10:31] Speaker 03: But that doesn't mean it's opening it up for demonstration activities. [01:10:35] Speaker 03: That's the trade-off that the board has allowed to happen here. [01:10:39] Speaker 03: And I think that's supported by this court's cases. [01:10:42] Speaker 03: I would also point out, as my second point, that both Hodge and Oberwetter's the case about the Jefferson Memorial. [01:10:49] Speaker 03: discuss situations where the government there allowed certain speech, circumscribed speech in the non-public forum, and that didn't create a problem of reasonableness. [01:11:00] Speaker 07: Such a different context. [01:11:03] Speaker 03: I don't think that it is a different context. [01:11:05] Speaker 07: It has nothing to do with legislating. [01:11:09] Speaker 07: It has nothing to do with commemoration. [01:11:12] Speaker 07: Small memorial. [01:11:14] Speaker 07: I mean, it's magnificent, but it's small in size. [01:11:18] Speaker 03: But the government would hold its own events there. [01:11:21] Speaker 03: And as Hodge discussed in the Supreme Court Plaza case, it would sometimes allow attorneys to speak on the steps, even though as a general matter that expressive activity was not allowed by the public. [01:11:32] Speaker 03: The last just quick point I would like to make is I think the other side identified certain alternatives. [01:11:38] Speaker 03: that plaintiff thinks are appropriate here. [01:11:40] Speaker 03: I would just point the court to the Supreme Court's recent decision in free speech coalition, which was about Texas's age verification law. [01:11:49] Speaker 03: And there the Supreme Court reiterated the principles again, this is assuming we're applying intermediate scrutiny that [01:11:55] Speaker 03: that even if there are other alternatives that have been identified that are equally or more effective, as long as the restriction at issue directly advances the government's interests and that the interests would be less well served without the restriction, it should be upheld under intermediate scrutiny. [01:12:12] Speaker 03: Your honor, unless there are any other questions, we would ask that this court reverse. [01:12:16] Speaker 00: All right. [01:12:17] Speaker 00: Thank you. [01:12:17] Speaker 00: Thank you, Your Honor.