Ames Moot Court Competition 2003

good evening my name is Rebecca Riley and on behalf of the Board of Student advisors and Dean Kagan I would like to welcome you all to the final argument of the Ames moot court up around competition the case before the court tonight Michelle Jones versus Heartland Oaks and Clara Brooks was written by Shawn Spencer a lecture on law for the first year learning program the case presents questions about the constitutionality of a statute that authorizes a choose life license plate in the state of aims petitioner Michele Jones is represented by the Paul Wellstone memorial team which is composed of Sarah Bhangarh tell Josh Kellner an alum all ski Chris Mansoor Nels Peterson and Rob Philebus Josh calendar in Chris Mansour will be making the oral arguments on behalf of the team the respondents are represented by the John Rawls memorial team the team members are will Edwards Aaron Katz Scott Michael Minh Elizabeth Boyer Crispus Tilly and Jeffrey Wyatt Aaron Katz and Elizabeth Oreo will be making the oral arguments for the respondents Douglas H Ginsberg the chief judge of the United States Court of Appeals for the District of Columbia Circuit will be chief justice for this evening's argument he will be joined by the Honorable Fortunato Benavides of the United States Court of Appeals for the Fifth Circuit and Judge Karen Nelson more of the United States Court of Appeals for the Sixth Circuit please hold your applause until all oralists have finished speaking and remember that the petitioner will be making rebuttal arguments you will have the opportunity to take pictures when the judges first come in they will stand for you at the front for a few minutes so everyone can take pictures after that the only person will have to take pictures will be the law school photographer also we ask that you all please turn off cell phones and pagers at this time best of luck luck to both teams and enjoy the argument look all the case it's Jones against Oaks and Brooks number 3 - 1175 you are mr. Kilmer yes your honor please begin Thank You mr. Chief Justice may it please the court my name is Joshua Keller and I will argue that plaintiff Michele Jones has standing to contest the constitutionality of the choose life license plate Act of 2003 my colleague Christopher Mansour will argue that the Act violates the First Amendment your honors in this case Michelle Jones alleges two separate and distinct injuries in fact each of which is in itself sufficient to establish standing first your honors miss Jones was disadvantaged by the government's discriminatory operation of a speech forum while those in the state of Ames who wish to obtain a pro-life license plate may freely do so those who wish to obtain an analogous pro-choice plate may not as this Court has repeatedly affirmed in the First Amendment an Equal Protection context alike where the government has a constitutionally imposed duty to maintain neutrality among parties similarly situated and it breaches that Duty one disadvantaged by that bridge has standing to proceed in court could you tell us what is the practical disadvantage that she's under what's the injury that you're describing as a disadvantage the injury that we're describing as the disadvantage here your honor is that while those who hold one viewpoint are able to express their views in the license plate forum those who hold another viewpoint that is the pro-choice viewpoint cannot well how is Miss Jones any worse off than she was before this statute and program we were instituted the reason that she is worse off your honor is because the government has chosen to admit her content matter to the forum that is it has decided in effect that the content of abortion is in bounds for license plates however based solely on the viewpoint that she holds it has barred her viewpoint from the forum this Court has repeatedly I understand that but I'm trying to get this understanding from not as a so the legal doctrinal matter but when she goes home at night how is she worse off than she was before the reason she's worse off your honor than she was before is because as noted in the record she feels imposed upon and excluded those bad feelings excuse me bad feelings are the injury it's not just bad feelings your honor it's bad feelings going to a breach of a government duty of neutrality this Court has repeatedly noted for instance in the First Amendment context and here I would draw the court's attention to Arkansas writers project V Ragland that where the government has a First Amendment Duty of neutrality and it breaches it that one who is disadvantaged has standing to proceed in court what was the disadvantage in that case in that case your honor the disadvantage was the fact that the government was giving a First Amendment benefit to one side that is people who published religious publications but not to those who did not it was a tax case wasn't it well that was a tax case your honor so there's no there's no tax here there's no there's a culpable burden with the tax but this Court has got some bad feelings this is not the court of bad feelings when did she sustained the injury and in the tax case the court was clear to point out that at the very time that tax was paid the injury occurred when when did this injury occur this injury occurred Your Honor when the government created an imbalance it's important to note at the time and when when was that the government created the imbalance what had acted enacted that she was life act and so they act the passage of the Act itself created her injury it did your honor so that was even before someone that before they even had the 300 signatures she was already injured yes your honor and the reason for that is because as this Court has repeatedly noted the problem is the disadvantage well people's advantage and they any use of license plates that say choose life in the first instance your honor it's the opportunity even to obtain the license plate now the 5,000 citizens in the state of aims who wanted a pro-life plate had the opportunity to get up to that 300 person Thresh those who are pro-choice did not this particular act does not prohibit or have any prohibition with respect to her request how does and your attack is is on this act itself how does this act harm her your honor as this court noted in heckler V Mathews where the injury is the disadvantage the injury can be remedied by actually striking down the disadvantage that is levelling the playing field it's important to note that this Court has never required that an injury in fact be something a plaintiff can hold in the palm of her hand as judge Bork noted writing for the District of Columbia Circuit Court of Appeals the loss of First Amendment freedoms even for a small period of time constitutes irreparable injury can't she speak how is she lost her First Amendment freedoms the reason that she lost her fet First Amendment freedoms your honor is because the First Amendment imposes a duty upon the government that is to treat similarly situated parties in the same way the important thing to note is that this Court has always had a strong policy justification against insulating under-inclusive statutes from constitutional challenge while the extension of a benefit to one side may not bar plaintiff from obtaining the benefit later on it still creates a disadvantage and it still does breach the government's duty that there may be nobody with standing to challenge a particular statute is a matter of interest but it's by no means dispositive than anyone does have standing it's certainly by no means dispositive that anyone does have standing your honor but in this case we strongly believe that Miss Jones does in fact for their parts respondents do not contest the general idea that when the government has a duty to maintain neutrality and breaches it that an injury in fact may result their point only is that plaintiff had to undertake what they say was a minimal step in order to gain access to the forum however it is unclear what they expected when they said a minimal step why shouldn't she have to seek to get pro-choice license plates allowed the point your honor I think is that the legislature can require her to go through an application process but where the legislature pointedly refuses to do so a plaintiff should not have to grasp at straws nor read the legislators mind in this case we know that on the face of the statute there was no application procedure she could have used moreover we know that while there were posters posted in DMVs advertising the existence of a program so far as we know on the face of this record there was nothing that says and if you don't like the options are available please tell your local legislature there is no indication on this record that the legislature contemplated any Nexus at all between whatever petitioning the legislature entailed and the scheme itself now let me ask you how was her situation any different from that of say somebody who who's unsatisfied with the selection of books that the library Public Library has purchased and made available maybe maybe an author whose book wasn't purchased that person was standing to complain about this that they put in other ways is there a constitutional injury there I don't believe that there would be your honor by the author wouldn't have a First Amendment right I imagine to have the library stock of the book well do you say there's a First Amendment right here for mrs. Jones to have the hood slogan on a license plate what's the difference the difference your honor is that where the government is administering a speech forum it has a duty to maintain this generally applicable idea of neutral I browse have something to do with speech there's something to do with speech your honor but at the same time the government is not constitutionally required to admit certain books to the library it's not a forum and the government can make the choices that it wishes to make can't the government can make its own choices for instance your argument would seem to suggests that if the legislature in a ins decided that one of the permissible tags would have stamp out fascism that petitioner could claim that she would have the right to have a license plate that says Hitler was misjudged because because her own view is that that Hitler has been misjudged by society and she's she's she's not getting her right to advanced her position her idea in the marketplace of ideas well I think your honor that goes to the merits of the issue but and I imagine that my colleague mr. Mansoor could speak to it far more eloquently than I but the general point is that no one in this case contests that when the government is operating a speech forum they have to maintain viewpoint neutrality and respondents for their part only argue that this was not a forum because the government was doing the speaking in any event another important point to note is that even to the extent that plaintiff could have undertaken this application process it would plainly be futile this court there isn't an application process right right yes well let's go on to something else okay another thing that we then might go on to is Miss Jones separate and distinct injury in fact and that is what we call her Lakewood injury as this court found in city in Lakewood V Plain Dealer where one is made subject to a licensing scheme that subjects somebody to unbridled discretion on the part of a licensing official that person has suffered an injury in fact and may proceed to court should that doctrine applied to legislators that was a case involving the mayor of Lakewood it should apply to legislators your honor and in fact this court our legislature is fundamentally different from mayor's or other administrative bodies they're different in certain ways to be sure but not in the important ones the concern that the liquid court evinced was the danger of censorship that is that when there are no generally applicable standards to cabin of Licensing officials discretion it can engage in viewpoint discrimination we have that situation here it seems like we do have standards the legislature has picked out certain things that will be allowed told the Commissioner that if there's 300 applicants that they shall issue the license how is this the same as a situation in which there are absolutely no standards and it's completely at the whim of an administrator or mayor or something to decide you know who gets a license and who doesn't a license well it doesn't in the important ways differ from that situation your honor in this case the licensing decision at issue is whether to admit content into the forum the legislature has never told people in Ames why it rejected a pro-choice plate which it did in January of 2000 you're treating it as though there were an application which there is we established there wasn't that in the in the newspaper case so that the mayor's case the court was concerned with self-censorship and chilling effect and all of that because he had a newspaper that wasn't gonna be able to distribute except that the permission the grace of the mayor and so we were concerned with the with the chilling effect on the newspaper trying to appease the mayor and so on I don't see how that carries over to the situation of mrs. Jones who she was gonna do we declined to drive well if not be intimidated about driving because she can't have the the slogan on her car it's not declining to drive your honor the fact that she might engage in self-censorship would go to whether she'd be willing to criticize the legislature she knows this because they might not give her the license plate she once they've not given it I should think she criticized them vociferously she's suing about it for goodness sakes the liquid court was also though concerned with the acts of parties who were already given licenses their concern was that one who had a license but didn't know why the ledges why the licensing official might take it away would engage in self-censorship basically they want to stay on the Legislature's good side so the concern here is that the pro-choice people who want the license places but that approach wise slogan are going to be in Tim we're gonna suck up to the legislators it's both of those your honor and this is the undercurrent of the Lakewood opinion is there a more plausible suggestion I think that maybe something which to some extent supplements our case is the fact that the court addressed an analogous situation in Shuttlesworth V Birmingham there it said that a municipal legislature was also subject to this general network of concerns that is that it had to have generally applicable standards to cabinet's discretion oh I don't think I agree with you there's no difference between the mayor and the legislature that the question is whether there's any difference here between a newspaper and person who wants a slogan on their license plate the Lakewood Court however was not concerned merely with confining its holding to newspapers the point was people who might exercise their First Amendment rights and the idea here is that while the individual is not publishing her views for commercial purposes she still has the right to criticize her government which to some extent is the lifeblood of a democracy and what can they do to her what can I do the route that she's going to be children but what they can do your honor is they can either first off refused to give her her license plate as they've already they've already done that that's what that's what creates the the issue now the question is why is that going to be intimidating or a scheme like that'll be intimidating it's also intimidating to people who have the license plate already they come take them away they can your honor and there are no standards that the legislature has to use to tell the court this is why we're doing it and we're not discriminating based on viewpoint let me ask you a variation on the question the judgment of Edie's point which I but I think I'm not so sure it's a merits question what I'm asking you the appellee in this case says that that the approach that you're proposing would require the government to and not just to make available opposing pro-choice and what's the other anti choice slogans but a whole range of viewpoints so it's just say well we've got to anticipate every every stripe here and make it make available license plates just for every taste remember seeing and in the same Commonwealth not many years ago a bumper sticker that said nuke the unborn gay whales what's the legislature going to do with that thank you I don't know much about the whales I think a more general and case specific point to make is that to the extent this is any dilemma at all it is of the Legislature's own choosing if they were worried about being able accurately to discern the range of viewpoints their citizens hold they should actually make a meaningful effort to ask them the legislature should not on the one hand be able to close the process to accountability and to applications and then on the other hand to talk out of the other side of their mouth and say well how could we ever have known what people thought they should have to ask thank you further questions Thank You mr. Kelly may it please the court my name is Christopher Mansour now I will argue that the state of aims violated Michelle Jones First Amendment rights when it opened its license plates as a forum for private speech on the subject of abortion within excluded Ms Jones pro-choice views from that forum this Court has consistently emphasized that when the government discriminates among private speakers based on the viewpoints they seek to express it strikes at the very heart of the freedoms that the First Amendment guarantees as the court wrote in its the case Red Lion it is the very purpose of the First Amendment to preserve an uninhibited marketplace of ideas so the truth may ultimately prevail but in this case the state of aims is distorting that marketplace by opening a forum and then allowing only the its own preferred view into that forum now respondents do not contest that the state has sought to favor one viewpoint over another here rather they suggest that the government that that governmental favoritism is acceptable under the Constitution because the government is merely expressing its own view but neither of the due doubt that the government is expressing its own view in the state of aims we do doubt that your honor we also consider it somewhat irrelevant to the case but we do doubt it doesn't the Act say specifically that the state prefers adoption over abortion there's no question that the state prefers adoption over abortion and there's all and the Act does stay in the stated purpose that the purpose is to further that goal but the question is how does it do that the way that it does that is by allowing private citizens in the state of aims to express their views so that when citizens drive down the highway they can see all of their private citizens all of their fellow citizens who have chosen to support this pro-life view but the state has not offered a similar opportunity to pro-choice citizens well it does is it just it's it's favoring one choice but it is one of the choices is to have a baby and and and they're preferring that choice it's not like you don't choose to go either way isn't it it's not necessarily saying not to choose a boy our outlying that it's it's making its policy determination as an elected body that it prefers a birth and it prefers providing money so that pregnant women will will have the children and and that they'll be able to be counseled and provide homes for these children well there's no question that the state is entitled to choose its own view on the subject of abortion and to express that view to its citizens but what it can't do what this Court has always forbidden the government from doing is setting up a forum for private speech and then discriminating among private speakers based on the viewpoint that they they are trying to express could the state of aims make bumper stickers and only give out to the citizens bumper stickers that say pro-life or pro that would be a much different case your honor if the why is it different well where the state merely prints its own literature it may print pamphlets and those anything and distributes them to citizens there was no government program their printing using your argument it's merely printing the license plates let's say license plates I'm sorry the license plates however remain on they continue to be government property it's a continuing government program the government has opened up its own property for the so that private citizens can use that property to express their own views now that seems to be in part the the issue whether it has right it is and I'm not sure by what lights were to determine that that when the state says its wants to publicize certain views of its own that it has opened up a forum for for everyone to participate rather than simply as in the case of publishing its literature not opening a forum but speaking its mind well this Court's inquiry has always been into whether a government created program contains a significant or facilitates the signal amount of private speech and that's true even when there's also an aspect of government communication and a program and two cases that show that most clearly are Willie and Forbes in Willie this court considered the constitutionality of a state a state rule that required citizens to display the state motto on their license plates the court noted first that the state was engaging in communication was expressing its own view by having that requirement but the court also found a private speech interest in that case the interest there in being free from compelled speech the private interest in that case controlled and the state couldn't simply claim that it was only trying to express its own message but the interest was I think as you just said being free from compelled speech right not having to to say something you don't believe at the behest of the state no it was a different private speech interest the private speech interest in this case though is no less important it's the interest in being free from government discrimination based on the viewpoint of one's private speech a learner professor at Harvard dinnertime was wondering about a stamp and if we have a stamp that says drink milk are the vegans have access to force the United States government to have a stamp that says milk we should don't don't eat the product of animals I don't think so your honor first it's it's certainly not clear that most people even understand themselves to be communicating any message based on the stamp issues some people may merely like the decoration or grab the closest stamp at hand if you don't think there's expression in those stamps even if there is your honor picture of Martin Luther King you don't see the Grand Wizard of the Ku Klux Klan no there's there certainly is government expression the government is certainly expressing its favored views and in the positions that it suppose it opening up a forum no your honor it's not the the purpose of the program in the structure of the the way the program of issuing stamps operates gives no indication that it's designed in order to facilitate private speech here on the contrary I thought the whole reason that for the proliferation of was to appeal to different niche audiences so they could communicate their message by the chance stamp they choose well I don't think that they necessarily use the stamps to communicate their own message they may prefer to use that stamp but for example people may someone who prefers a Martin Luther King stamp may use that same stamp to pay their bills and to send off something that they're not they don't care what the recipient understands them to be communicating based on the stand in any case but the New Hampshire case was one of compelled speech and so I'm not sure what it contributes to your your argument what it contributes your honor is that it suggests that where even where the government is trying to communicate its own message where there's also a private speech interest at stake that private speech interest remains protected by the First Amendment Forbes demonstrates this perhaps even more clearly Forbes concerns the ability of a public television station to exclude fringe candidates candidates who had no chance of being elected from a televised debate in that case the court noted first that public television stations are engaging in communication are engaging in speech when they make their programming decisions but it held nevertheless that where the state operates a program that involves private speech as where it hosts a candidate to be it must treat the candidates in a viewpoint-neutral way because it is open to form the same is true here miss jones simply asks to be treated in a viewpoint-neutral way why is his prime some okay why is this private speech then I assume that Ames is like the rest of the other 50 states and that the the process of presenting of Avila's public record and that you have debate and that the people that that were against this message had input into the political process and that ultimately the statute in question was passed by the legislature why is this isn't this different from the secretive situation under standard undisciplined arbitrary portrayal that you have presented here well we don't seek to portray the process as being secretive necessarily the issue of secrecy doesn't really go to the question of private speech the reason that it's private speech is because it permits private speakers to choose which viewpoint they wish to express and it allows them to control the content of the message they express and it and reasonable observers looking at these plates on the highway would certainly understand that if they see a choose life played on someone's car they would naturally understand that that person is communicating their support of that view and respondents indeed don't contest this they concede that there's private speech in this case they argue it's only relevant that that in some states the choose life bill has been vetoed by certain governors and then when new governors have come in the bill has which has passed the legislature has then been approved by the governor so that essentially the vagaries of who's in power will result in whether the slogan of the state that people can put on their license is choose life or pro-choice I don't think so your honor there's no question that the state has chosen to endorse the choose life message over the pro-choice message that's exactly the constitutional violation that Ms Jones seeks to contest' no one doubts that but there's no actual act of communication in this case until a license plate actually appears on a car it cannot be the case that every government statute enacting a given policy is deemed an act of government communication and hence from scrutiny because every statute in a sense communicates the Legislature's approval or disapproval of the policy contained the act of communication in this case is when a private citizen chooses to place a license plate on his or her car if it weren't for the volition of private citizens the state could enact this program it would go on the books but no communication would take place under it that's the reason what did it it must be understood as setting up a forum for the communication of private views so this is in your brief you say only where the private individual has virtually no editorial control can the government speech doctrine apply in other words in every other case there is this element of private speech and different obligations attached what is the the element of editorial control here the element of editorial control has to be understood with reference to as I was saying the fact that the community the communicative acts in this case is the placing of a license plate on a car that's editorial control implies that the person putting on the license plate has some discretion yes and citizens do they they can choose to place no message at all or they can choose from any of the license plates approved by the state no it's certainly true of the state they can choose from a fairly constrained list what is it 46 I think options that they have ranging and I'm not sure they all do because they can't all put on their naval officer if they're not a naval officer so how many does an ordinary civilian have 30 something so there are 30 slogans that you can put on there save the sea turtles I think is one yes and the one in suit here and a few other things like this so is or nothing and that's the extent of the editorial control that's an issue right yes but the court held in Forbes citing an earlier case surely that an act of communication is no less an act of communication merely because one chooses to pass a long speech originally crafted by someone else so when the when a government television station as in Forbes rebroadcast it's a program that was created by someone else that's no less a speech act because it wasn't the original three of the contents you're that's true here that our opponent has argued for a four-part test what part of the four-part test do you disagree with or what part would you add to it in extra week in actuality we don't disagree with any of the prongs so long as they're understood not as lower courts have applied them in a sort of haphazard way but through the lens of this Court's precedents the question must always be not whether a program an entire program should arbitrarily be classified as government or private speech but whether a significant private speech component is present in a given program because if it is then the First Amendment requires that it must be protected so for examine is it 10% we don't offer we don't suggest any specific definition we use the word significant only to imply that where a speech interest is insignificant as for example in the case of postage stamps you need not concern this court almost by definition something that's insignificant need not trouble how do you decide that postage stamps the speech is insignificant the private interest private speech is insignificant as compared to license plates it was something that you decide what we decide well we certainly would leave it to your discretion standards for us to to narrow our discretion standards hmm I think to some extent it's a question of a plain common sense and we wouldn't when citizens used license plates choose to put these specialty plates on their cars it stands to reason that other citizens would understand them to be conveying a message cars are a typical place of self-expression people put bumper stickers on their cars they have vanity license plates where they can affect their letters and numbers and these are understood universally as ways that people can communicate their associations or messages I don't think that the same is true with postage stamps to the extent that the government does have other programs that encourage people to engage in acts of private speech as this Court has always held where the government opens in the forum whether it's a public or non-public forum the government must act in a viewpoint away and that's nothing new that we suggest under this Court's precedent your your claim is that the form is the license plate right it's not the vehicle yes the form is the license plate program in the New Hampshire case it was a sticker that went on the windshield I think here's the license plate so mrs. Jones is quite Liberty to put a bumper sticker on right the proposed out her point of view where that says don't believe this license plate if she happens to be using one of the of the pro-life ones all right so the I'm not sure how she's injured here not injured we've went went over that how how this the state is excluding her views from the forum because if you define the forum narrowly enough you can always say something is excluded the forum could be this microphone rather than the bench the question your honor though is whether her view is being excluded based on its viewpoint and the court has can see there's supposed to be excluded from something it's the something why is it a license plate I see that my time is interested in your answer those sure what do you just you said saying about the program actually right and the court has always held that the mere existence of other even even other easy avenues of communication by which someone could express a message doesn't change the fact that when the government runs a program it has to do so in a viewpoint-neutral way think you will reserve five minutes for a rebuttal Thank You mr. Masry just kids mr. Chief Justice and may it please the court I will be addressing the issue of standing my co-counsel will be addressing the government's speech issue on January 31st 2003 the aims legislature passed the choose life license plate Act which approved the creation of a specialty license plate containing the words choose light fine you should assume we're familiar with the background right in the interim between the period of the CLL piays passage and mr. Jones is filing it for claim in federal court she did not notify any aims official of her desire that the aims legislature pass a bill creating a pro-choice light was there not a bill introduced that would be a pro-choice bill that was rejected by the one house of the legislature just as more during them sometime during the month of January there was a bill that would have approved the creation of such a plate we the record doesn't show the text of that bill we don't know exactly why it was not passed it could have been for a reason that's viewpoint neutral for example the legislature could have disapproved of the use of the plate revenue where those funds went on a rule 56 motion it is miss Jones's burden to introduce these facts in the record if she's going to use the fact that that bill was not passed as evidence that it would be futile for her to apply to the speech form she bears some burden to show why it would be futile I don't know how we couldn't know whatever one could plausibly find in the legislative record I don't know how the court could make a judgment about why a bill was rejected I mean unless you have a majority standing up and saying individually each member the same read giving the same reason I don't see how it'd be possible for us to say mr. Joffe to know why a bill is passed let alone rejected well mr. Chief Justice I think that if we knew the text of the bill we could start making some guesses but the circuit courts that have we know from the CL LPA that the legislature said that it approves adoption as against abortion so don't we have a pretty clear indication that the reason why the legislature didn't pass the pro-choice license-plate bill was because of the substance of the contents justice more the viewpoint of choose life is not totally inconsistent with the viewpoint that Roe versus Wade was correctly decided and that someone has a right to an abortion seven you know many people hold this viewpoint she does not argue however that the reason that this plate was passed was because viewpoints formation she claims that this is evidenced it would be futile for her to apply to the forum I think would be helpful to go to a more garden-variety forum such as a parade or mr. Chief Justice mentioned a library if we can assume that a library is a forum and aims decides to start a library it builds the library it's buying books to fill the library and it buys the Federalist Papers the librarian has decided not to order an issue of the Communist Manifesto the very fact that they ordered the Federalist Papers book does not show that they are discriminating in other words of bridging the free speech rights of people who have a communist viewpoint and want to come as manifested book if it is a forum a person that wanted the book in order to show that they have been the victim of viewpoint discrimination would have to make some attempt to show to ask the legislature that they want their viewpoint to enter the forum at that point the legislature the legislature the librarian or whomever if they rejected that request they could bring a viewpoint discrimination claim the requirement that someone seek access to a forum is not some administrative or statutory requirement it's a prerequisite step to showing that the government has abridged one's free speech rights isn't it wouldn't you say it's an exhaustion idea mr. Chief Justice I I don't think that this is it that this is an exhaustion idea well the First Amendment does not require the state to facilitate anybody's speech going to another garden-variety example form of a parade let's say there's two competing you aren't so you're not so I thought you were saying that she had to to go to the legislature and sort of exhaust that Avenue a political relief before she could say that she was in any way injured mr. Chief Justice it's not that it's an exhaustion requirement she would have to go to the legislature make some attempts in other words do something as opposed to nothing to let them know that she desired the creation of a pro-choice plate in order to show that the fact that they have not passed the pro-choice plate was somehow violating her person and the rights the First Amendment we know they didn't pass such a bill and that they looked at one and didn't pass it so what's the worst that doubt is the doubt that she was concerned about it and we know that too I think the doubt mr. Chief Justice is is that on a scarcely more than sparse record this court would simply be guessing it the reason why that bill was not passed the circuit courts that have come up with a they call it a futility exception to attempting to access the government benefit and in this case the benefit is the forum itself those cases have held that the plaintiff must make a substantial showing that applying for the benefit would be futile well why wouldn't the state has made it announced it and announced it in the caption of the statute that there want to promote and if they're in favor of people just making the choice to have a child now if if that's their an announced basis for passing the statute because that's what they prefer why would we think that she would apply and that they would approve something that's the opposite of what they've just told us as a collective body that they prefer justice Benavides if this is a form and again we're arguing that of course it's not a form if it is it's a rather strange looking for him but if it is a form this Court would be asked to speculate to guess to presume that the aims legislature would act unconstitutionally if somebody asked to access that form assume that she did seek the legislature do give her the kind of plate that she wants would she then have standing just as more if she did do something as opposed to nothing and went to the legislature and made clear her view that she desired the create a pro-choice plate because that's her viewpoint and they ignored her or did nothing or came out with a statement saying forget it and get out of here she would have standing to challenge it now that's not to say that she would have chatons standing to challenge the Clell PA the co lpa is not refusing or excluding her from this forum at all the CLL PA is it's not the benefit here the benefit here is the forum itself and the CLL PA does nothing to exclude any particular viewpoint or person from that forum so what could you challenge well in this case I I think it's clear from the brief that she says that the problem is that seventy nine point four I'm referring to the statute that creates the very concept of a specialty plate that that statute is defective because it does not have a formal application process in other words that the Division of Motor Vehicles has no discretion to approve a plate or to issue a plate that is not on the exhaustive list that the aims legislature itself has created on page 35 of her brief her initial brief for instance in footnote 11 she offers this court a very succinct argument that the real problem here is that the aims legislature has to divest itself of what they might term gatekeeping authority over this forum and give the Division of Motor Vehicles the ability to approve the creation of plates I think it's odd that in the very last thing that she says in her initial brief she gives this court a legal standard a legal rule that it come up with that seventy nine point four is defective and yet she hasn't chosen to challenge section seventy nine point four she's chosen only to challenge the CL LPA because she as she terms it it gives a license plate to her ideological adversaries there is no contention that the CLK causes or embodies the unbridled discretion that the legislature has over the exhaustive list of section 29 section 20 Destiny's 9.4 she's made two types of injuries claims right one is that she's subjected to this unbridled discretion that I suppose by your argument would be traceable to the general pro two seventy nine point four but the other is that the passage of the co lpa injures her in disadvantaging hurry in a public debate she's having with other people about this issue mr. Chief Justice in for instance Gladstone Realtors and several times since then this Court has said that for article three purposes a relevant injury is one that results as a result of the defendants illegal conduct in this case the injury of disadvantage could only be a relevant article three injury if it was the result of a violation of Jones's First Amendment rights now here the disadvantage comes from the fact that Jones hasn't asked to enter the forum and other people have so if we can go to the parade example and there's two competing groups and one decides to apply for a license to march in the parade and they are granted their license and they March and the competing group decides not to apply for a license at all and they're sitting at home and they're watching their ideological adversaries marching and speaking in some very real way they're disadvantaged but this disadvantage is not a relevant article three injury because it's not the result of illegal conduct it's not illegal to issue a license that's a merits question doesn't that well mr. Chief Justice I think if I think it's odd the the injury and fact requirement does sort of collapse into a sort of merits inquiry this court noted in Lewis versus Casey that the injury in fact requirement often looks like a merits question indeed three concurs noted that it looked very much like a merits question there but nevertheless the majority was correct and characterizing it as an injury in fact requirement the injury and back requirement itself because it must be the result of illegal conduct is a merits inquiry and necessarily it has to be the result of conduct that is alleged to be illegal whether it's illegal won't be resolved unless the person has standing and we get to the merits right but if there's an allegation that this was unlawful they're the focus of our inquiry is whether there's an injury the preliminary inquiry right that's all whether there's an injury not whether it's unlawful well mr. Chief Justice on a rule 56 motion the facts alleged the facts of the plaintiff presents on the record have to at least be enough to raise a question of whether this is you know a violation of law and Lewis versus Casey the allegation was a prison violated a prisoners rights because they didn't provide a decent library the prisoner was not going through habeas corpus proceedings indeed there was no claim that he was in the mists of any court proceedings whatsoever and Justice Scalia said that this would be an injury in fact if the Constitution required that a prison give every prisoner no matter if they were going through court proceedings or not inadequate library Justice Scalia said that the First Amendment doesn't require that and that was even so even though there were no expressed Holdings on that point it was you know in other words a a semi novel holding that a prisoner did not have a right to an adequate library save for the fact they're going through habeas corpus now that's a fair point because we there just said that we said that this wasn't a legally cognizable injury essentially right we didn't deny that he was without the books he was he certainly puts him at a disadvantage right he certainly was he wants to dream up some case but he didn't have a right to them here so it's a good point but I'm not sure that that it that it travels very far here we've got a not a frivolous claim well mr. Chief Justice it's it's I wouldn't characterize it as a frivolous claim I would characterize it as something at the intersection of injury in fact standing and ripeness she has not shown that her First Amendment rights have been abridged if you look at a case like Cornelius on page eight oh one of the Cornelius opinion this court says that as an initial matter a speaker must seek access to public or private property dedicated to public use in order to raise First Amendment concerns what I'm hearing from you is a constant emphasis on her not having sought relief from the legislature if we put that point aside you concede that she does have standing is that correct justice Moore I would concede that she would have established an injury in fact if we if we can see that there's been viewpoint discrimination and she's been disadvantaged yes but the CL LPA is not the cause of that disadvantage and it allows for one viewpoint to be expressed but not her viewpoint why does that not cause her disadvantage justice Moore the co lpa does not exclude her from the forum or prevent the legislature from creating a pro-choice plate the law that you have to seek to enjoin has to itself be illegal I don't know of any case where this court or any federal court has enjoined an otherwise illegal law even in a case such as metropolitan Washington Airport Authority the veto that was enjoying there was illegal it was deemed to have violated a separation of powers how about the Ragland case and the taxes was there any injunction there how would you deal with that well in that case the plaintiffs were actually seeking a declaratory judgment from this court that the tax that they were made to pay the tax ago was imposed on them was discriminatory because other First Amendment speakers based on content were not taxed and the declaratory judgment would have actually allowed them to pursue their 1983 claim in state court so couldn't there be a declaratory judgment here that it is discriminatory on the part of the legislature to allow only one side to be heard justice Moore that that would be a classic advisory opinion she has not she's she's suing to enjoin a law that has absolutely nothing to do with her ability to speak in a forum if she were to ask this court to say that the Legislature's rejection of her request to access the license plate form was unconstitutional that would be an entirely different matter I think we keep going back to this I'm not sure got some of that seems to me that the the gravamen of her claim is this disparity in treatment and that it would be redressed if the co lpa were invalid because then the state wouldn't be favoring anybody it's true she wouldn't be able to get her message across but not there would her adversaries mr. chief justice she still would be disadvantaged the extent that other people would have the ability to speak on license plates about all sorts of things sea turtles wild meaning about that disadvantage goes away if the statute is real is enjoying her ruling constitutional her disadvantage that is not having to compete with what the license is gone isn't it Joseph Benavidez I think if this court allowed her to seek to enjoin only one particular statute a statute that doesn't prohibit her from accessing a forum this Court would be allowing nothing more than someone to bring a claim for an injunction that functions much like a civilized version of a hecklers veto here she keeps coming back but wouldn't the message be to the legislature to open up the forum to both sides or all sides if it's a multi-sided issue just as more she does say this at page 5 of her reply brief for instance that it would redress the injury because the aims legislature would then likely enact a and she says a scheme that accords with the Plain Dealer principle this would be simply an advisory opinion her claim here when she rebuts the claim that she must attempt to access the forum she continually retreats back into the position that the problem is not that she's been rejected but rather that 79 point four is defective because it does not include an application process this sounds much like a plain dealer type injury but even if this court were to assume and we certainly think that this is not the case legally but even if it were to assume that the legislature in order to accord with the plain dealer line of cases if they establish a forum has to divest itself of gatekeeping authority over the forum the correct challenge would be over 17 at seventy nine point four to enjoin the entire specialty plate scheme as a whole if seventy nine point four were and joined there would be no concept of the specialty plate there would be no specialty plate forum and thus there would be no forum that bests unbridled discretion and the Ames legislature I wanted to ask you one more one more thing suppose that the state opens up a forum that is undeniably a forum that's a theater and they make it available to all manner of speakers except on one issue they allow only the one side of the van issue to speak they said we'll have the the choose life side and not the pro-choice side now somebody comes along and says we want to put a stop to that they can't shouldn't be able to do that you say she has to suit us close down the theater rather than to get an injunction against the state in the future presenting only one side of this issue mr. chief justice in that case the proper challenge would actually be to enjoying the state to force them to allow their theater group to get on the stage and speak it would not be to go after whatever particular theatre group they don't like today and say the court should stop them from speaking here I think that the problem is potentially that this Court would be violating legislative immunity or some sort of separation of powers doctrine if it required the Ames legislature to pass a law creating a program we can't like because we wouldn't purport to do that thank you thank you mr. Chief Justice and may it please the court to accept petitioners argument that license plates are private speech but that stamps and government-issued bumper stickers are not would be to adopt a totally unprincipled government speech doctrine miss Jones's first amendment challenged the choose life license plate Act is little more than an attack on a principle that this Court has continually restated that the government may enlist private individuals to aid in transmitting the government's message license plates bumper stickers and stamps are all examples of instances in which individuals affixed to their own personal property or to their persons a government message in order to express their support for or their endorsement of what their government stands for is there a difference in the bumper sticker example the one that I gave earlier of the government paying for the bumper stickers that the government is funding the speech in that example of bumper stickers whereas here the individuals are paying for their license plates special amounts for the choose life ones just as more I don't believe that there is a difference in the fact that the government might fund something like a bumper sticker in cases in which this Court has attempted to distinguish private speech from government speech this Court has never held that who funds the speech is a relevant consideration or is determinative of who's speaking and evidence of this is seen in the Rosenberger case in which the government paid substantial amounts of money to facilitate private speech by student groups the key factors in determining that that was student speech in spite of the fact that it was funded by the government word that the speech was to serve a purpose that was created by the students and was the content of the speech was controlled by the students is a relevant factor here that the money that is earned by the sale of the jew's life license plates is half of it is funneled back to choose life types of charities so it was private funding of private charities the use of the funds from the government program support the fact that this is government speech because it demonstrates that the program the license plate program is established for the governmental purpose of expressing the government's preference for child birth over abortion in that respect it substantially similar to what the court or the government was doing in rust V Sullivan in which it facilitated discussion by private doctors of the government's message on abortion in this case is it a significant difference that the amount of the expenditure depends simply on the private expressions by private individuals who choose to buy those license plates the fact that private individuals just as more are the conveyors of the message is consistent with what this court detected in Wooley in Wooley the Court recognized the fact that although there was a private individual that was carrying around the government's license-plate message on their car the message was governmental and that it was legitimate for the government to pursue avenues of expression of its own message what the court took issue with in Wooley was their compelling a private individual to aid in transmitting that message however the Court recognized that the message on the license plate was an official view and was the state's ideological message is there any limit in your position as to what the state's message could be that it could allow its residents to choose to put on their vehicles well your honor the only limit would be what private individuals would be willing to put on their car I thought that's come to my mind is suppose the legislature of aims decided that it would endorse a vote and label and only vote Republican because the state of aims is majority Republican at the moment would that be permissible under the First Amendment that's that's obviously a tough question your honor because it's a very controversial issue but the really things that's a tough question the this Court has actually acknowledged that the government needs to be able to speak on controversial as well as non controversial issues and in some people's mind taking a stance on abortion is more controversial than taking a stance on whether to vote Republican or Democrat so yes I can't think right now off the top of my head of any reason why they couldn't put a political message of that nature on a license plate well that doesn't bother you your honor the reason that that doesn't bother me is because there are significant alternative channels for private expression private individuals can express their own messages on their own cars if they so choose by getting bumper stickers that say whatever it is that the state's not saying that they want them to say the only real qualms that are the only real problem that Miss Jones has with Ames's statute is that the government is not putting their imprimatur on an expression of support for approach of pro-choice viewpoint Miss Jones has not contested that she is able to express her pro-choice viewpoint in a variety of other ways but the fact that she can't get a license plate that says pro-choice just means that the government hasn't put their own stamp hasn't put the name of aim of aims on a license plate with her message if I follow up judge Moore's question though doesn't it seem to you that if individuals private people are paying the extra money to have this message doesn't that tip the balance over to the idea that this is a private speech it's not the government speech if it was government's policy in the government speech they could pay for that if people wanted to have that they could just pay for it but here private people are making the decision as to whether they're going to have what kind of plate they want and then only those that want to advance a particular idea or point of view are allowed to spend their money and only on that kind of like the the the Valero situation where here you're limiting how much money people can spend or how much is available for people in other words people can't spend money advancing this on this forum that the the status has has established well your honor the choose life license plate act is not in any way limit the ability of individuals to contribute to the political causes and to the funds of their choice it just doesn't facilitate through the government individuals are contributing to certain funds in this respect it's no different than those boxes you sometimes see on your tax returns which say you know check this if you want to donate a portion of your tax return to a specific cause private individuals through their own channels can contribute to whatever they want but moreover the funding question is not mning though speech is not really any different from what you see in other contexts in which individuals volunteer to help the government convey its message or even using your example could the government put on the tax return either giving simply give one dollar if you wish to choose life without making an alternative choice to choose choice I believe that the government could make available opportunities as it currently does for individuals to fund certain messages and not make available opportunities for them to fund alternative messages that they could support their other means do you have any cases that you would for that principle well it's a very similar to the situation in rust V Sullivan in which the government enlisted private individuals enlisted private doctors to disseminate the state's message but moreover it's there are common practices for example the government commonly runs anti-drug programs for schoolchildren things like the DARE program in which the government may invite private individuals parents for example into the classroom to help the state to convey its anti-drug message to students but no one would argue that the government need to make open-floor time also to parents who want to express a program the Timothy O'Leary society would lose that case Harvard who suggested that we not such a crazy case it's just it hasn't been brought because it's not a popular cause or isn't a close division of opinion on that but that doesn't that's not dispositive of the relevance of the question right what would happen I think that what would happen was that this would be that this Court would reaffirm the principle that is repeatedly acknowledged it stated explicitly in Rosenberger that the government may enlist private individuals to assist in transmitting the government's message and I think that this serves a variety of logical purposes first of all it just makes the government speech more cost-effective but moreover this debate has been framed in such a way that that it seems like the government's speech interests are always at odds with private speech interests and that they can't kind of be compatible but in reality if democracy is functioning well and if people are satisfied with their government they will or men people will want to endorse the government's message to express their support for their government and people who don't want to endorse those messages have recourse with the political process to vote in different officials who will take different stances on issues so the the incumbents of the moment though are able to conscripted forum for advancing purposes that may help them retain power not because they're popular but because the propaganda that there's a vote Republican license plate or any number of other things that they think will that help their reelection prospects well Your Honor this goes to the issue that Justice Scalia raised in his opinion when he was a district judge in blocking Mesa in which he stated that it would be a mistake to assume that speakers are really so fragile and scared of the government and that their ideas are so fragile and subject to government suppression that if the government takes a stand on something and if it takes a stand on something controversial it really impairs the ability of private individuals to get their message out there I just don't think that that's the case but moreover I think that the idea that there's a you're suggesting that there's a parody an equivalence between a state issued license plate that says choose life and a bumper sticker on the next card that says pro-choice again Your Honor I think that the only difference between those two means of speaking is that one bears the imprimatur of the state clearly it's a license plate that's been issued by the state with the state's name on it and so people are able by that to know what their government stands for to know that their government has a stance on abortion and the pro-choice message is expressed equally effectively if it appears in the same region of an individual's car but it doesn't bear the imprimatur of the state because it's not the state's message more of our petitioners make this whole issue about whether there is a substantial component of private speech present but in fact finding a substantial component of privates is not determinative of whether that speech is occurring within a forum in this case there is a private expressive interest but the private expressive interest is occurring outside of a forum it exists only because the government has made available the ability for private individuals to endorse what their government stands for so what's the smaller you're talking about that it I'm sorry I didn't mean to say that it occurs outside of a specific forum because we haven't identified any spur for I'm here only to say that it doesn't occur within any speech forum at all this instead is government speech which is evidenced by the fact that the government has made it possible to speech for a government purpose to facilitate the government's message of choosing childbirth over abortion and additionally and perhaps most importantly because the government possesses editorial control over the form and content of the message that's being expressed here petitioner advantage of the doesn't the driver express editorial control over whether or not to display the message your honor it's true that the driver does have a choice whether to display any a specialty license plate or whether to display a particular specialty license plate but that is only that's only distinguishing this case from a case like Wooley in which the display of a particular license plate was compelled it doesn't change the fact that editorial control in the sense that this court found to be relevant in Southworth and in Rosenberger is the ability to determine the form and content of messages that are delivered this court specifically acknowledged in Southworth that the ability of students and the fact that only the students really gave form and content to the messages that were being expressed through student publications and student organizations meant that the speech there was the students because the students possess editorial control over that speech about Santa Fe in Santa Fe in Santa Fe the speech was also found to be the government's because the government specified parameters and pretty specific guidelines about what the speech could entail and although there the government didn't the specific message that the students would be delivered the message was subject to the approval of the government and in fact the scheme there was substantially similar to the one here in that the government made available the option to students of electing a speaker or having no speaker at all and once they determined to have a speaker they could then determine the particular speaker that they wanted and that speaker could craft a message within the guidelines established by the government that operates much like the license plate scheme in that the government makes available to private individuals the option of having a specialty license plate or not having one and if the individual elects to have a specialty license plate they then have a choice from a range of license plates prescribed by the government in each case the particular license plate that's allowed is with a particular government message is that correct yes justice Moore that's correct so what your opponent has argued that a different test than your four component test should be the appropriate test do you have any particular problems with that test that your opponents arguing for yes your honor two problems first is the determination whether there's government speech relies on a novel application of Texas v Johnson a case that's never been found or never been even applied to distinguishing private from governmental speech but more significantly petitioners test relies on a finding whether there's a substantial private expressive element to what doesn't that recognize that there's a continuum that there's government speech private speech and then there's an area where there is both kinds of speech well your honor essentially there has to be a binary determination made between whether there will be a viewpoint neutrality requirement imposed or not but there's not a kind of this kind of binary difference between government and private speech in the sense that you really need to analyze different characteristics of the speech to determine who is speaking but to say that finding a substantial private expressive element would be would be determinative has a variety of problems first it would essentially reverse the outcome in rust V Sullivan a case in which private individuals in which individuals were speaking for the government and the patients in that case there's no evidence that they were able to distinguish that it was the government's message they were hearing they were talking to their doctors their doctors had substantial control over the particulars of the message that they were transmitting yet this court found that that was government speech could that be distinguished on the basis of funding I don't believe in that in subsequent discussions of rust V Sullivan this Court has ever held that funding was really the fundamental aspect there but there's more support for that principle to be found in SantaFe in which again it was found to be the government that was speaking in a spite of the fact that there was a private individual that was actually delivering the message and had some control over the specifics of what message would be delivered again I don't think that anyone could deny that there was a substantial private expressive element going on there but nonetheless it was found to be government speech so I think that the implications of petitioners tests would be somewhat radical you have done a pretty good argument I made a good case I think of booing the idea that because there's a component of a private speech that therefore we always treat it as private speech the the opposite though is is what you seem to be espousing is that if there is a component of government speech then we treat it all as a government speech what is your test for instance if we had a case where the private speech aspects outweighed the government speech aspects how would we decide that as a court how do we get into this you know playing government and balance of power situation deciding this mixed component question justice that's why I believe that our test is particularly apt here because our test involves analyzing whether there's an element of private or government editorial control over the speech whether the speech and whether the speech serves a governmental or private purpose who is the literal speaker of the speech and who bears ultimate responsibility which we as the government and we as the majority and and we passes the law isn't all this this policy decision that made to say made by the state isn't that an individual is a wouldn't that argue that this is really an improv 'it's peach that the legislators who are elected are reflecting the will of the people and the people are all individual people well it's certainly true that private and and governmental speech aren't perfectly separable because yes the government is made up of individual citizens of our country however the fact that private that the government operates in its governmental capacity to formulate messages that are the government's and to enlist private individuals to transmit those messages is something that this Court has acknowledged to be legitimate in Rosenberger it acknowledged that again in Velazquez and it has recognized that implicitly in Wooley and in Barnett is their component of how mine or minor the speech is this Court has a long history of looking at the distance in the minority and protecting them from the will of majority would seem that under your scenario the more an idea is entrenched the more it can be espoused by the state and the more person is in the minority the more hurdles that can be put in his path or her path by way of Lading something the government speech your honor Miss Jones has never claimed to be a discrete and insular minority in the sense that this Court has found necessary to give extra protection only that she has a political viewpoint that's not the viewpoint of the majority and the political through the political process she hasn't succeeded in electing legislators who support that particular point of view so the fact that her viewpoint is not the viewpoint of the majority only means that she has recourse through the political process to try to elect officials who will espouse the viewpoints that she prefers thank you thank you Miss Rhea the balance of reserved five minutes thank you first one brief point on standing the court noted in heckler V Mathews that when the right invoked is that of equal treatment the appropriate remedy is a mandate of equal treatment a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class that's all we're asking for here it's it's simply not possible for Miss Jones to ask this court to order the legislature to pass some new statute authorizing her pro-choice plate if if it were then that's what she would be asking for but it isn't now on the First Amendment issue everything about this program indicates that it's private speech one of the most important things that several of your honors mentioned is the question of who's paying for this speech and it's simply not true as respondents contend that this has not been a salient factor in this Court's inquiry in the Southworth case for example the court noted that if the challenged speech work were financed by tuition dollars and the university was responsible for its content then the case as the court put it might be evaluated on the premise that the government is the speaker but that is not the case before us here the private individuals pay for the speech in question in addition no specialty plate under most of the specialty plates and no plate is produced until at least 300 citizens have signed up for the plate again this depends entirely on private action this is the significance of the 300 then there's no the number 300 isn't any magic number it's nobody why what are you what's the point you're making about the fact that there's a minimum requirement the minimum suggests that the program as a whole depends on private action nothing gets communicated under the program until private citizens choose to make that happen well the state says we'll put out this message if there are enough people who were interested right that's true but if the state were intending to convey its own message it seems that it would be an odd way to do it to require a minimum number of citizens to sign up for the plate you that with classes it's a 15 student still enroll you don't have a class in any case many other aspects of their program indeed all aspects of the program suggest that it's private speech speech just says the speech has its price man physically it's not willing to pay more than a certain amount of it doesn't have at least as with the case of the the classroom that's no doubt true but but again the point is that the private speakers are the ones ultimately paying for the speech some of the license plates indeed feature messages for example the animal rights plate features the words I care now it's impossible to read the words I care as expressing anything other than a message that the person who owns the car and has paid for the plate cares the grammatical even the I and that phrase cannot be taken to refer to the government so there's I have to be and I don't care please that would be an entirely different case your honor don't you have to agree not necessarily and I would like to address in the same vein just to spend a VJs earlier question about whether if the state has anti-fascist plates it's also going to have to have pro-fascist plates and the answer is not necessarily the state is certainly free to engage in content-based exclusions from the forum so we could exclude for example the topic of abortion altogether it can also even engage if if the court deems us to be a non-public forum it can also engage in status based exclusions so in forms for example it was alright for the television station to exclude a candidate from the forum because he had no viable chance of being elected now that inevitably turns to some extent on the candidates popularity nevertheless that would be acceptable even under our analysis so your analysis if there's a controversial topic doesn't the state have to allow both sides of that controversy so gun control yes gun control no gun control yes where the state sets up a forum for private speech and does it have to be reduced to slogans or can there be more subtle variations introduced so that there might be more than two positions well the most there might be more than two positions and the most reasonable thing for the state to do is thus to adapt some sort of application process as every other legislature in a reported case to run a program like this has done vocation process the legislature can have a minimum number of people who have to sign up for a plate before it's produced and that's an entirely content or a viewpoint-neutral restriction we have no objection to that take a legislature do that and still proclaim a preference if the legislature established viewpoint-neutral regulations and for example only a certain group can meet the minimum and it didn't appear to this court that the government was merely manipulating the its facially neutral regulations so as to suppress speech then that would be perfectly fine so the government you're saying has to set up an application process on a neutral basis so that it accepts if they're enough minimum to meet the minimum it accepts the obligation to then create a plate that says something that is contrary to government policy well seeing that my time is up I'll merely note that of course the government is free to engage in content-based exclusions it can exclude any topic that it wants from the forum entirely but once it allows right well now that down here in Washington there are a lot of people who are interested in saving the Chesapeake Bay and it is in fact the the policy of all of the surrounding states under the federal government has been hundreds of millions of dollars to try to do that and once these save the base stickers all over the place so I've saved the bay were a license plate slogan the people who didn't think that was a good investment would also be able to get a license plate saying the heck with the bay yes your honor but only where the state has set it up the program so that private speakers convey their message the state for example if it wanted to assign license plates randomly or to have multiple license plates that rotated on the early basis it could convey as many messages on its license plates as it wanted as long as it doesn't operate that program sure both in after Wooley well we couldn't compel the citizens to bear the message Wooley was clear on that but just as many states don't have specialty license plate programs at all they simply have a state motto the state could change its motto from time to time and there's certainly many other avenues by which the state can communicate its message this is a matter of real interest here in Washington because the District of Columbia's have started this year putting out license plates to say taxation without which some people think is a good idea indeed your honor it doesn't as far as I know the state doesn't allow citizens to choose whether or not to have that message does it but thank you mr. monster Thank You mr. Kelton Kellner Thank You cats Mazhar thank you all the case is submitted the Corps will take a brief recess [Applause] courts been asked to render an unusual form of judgment in this case not to opine on the on the merits as to say whether they whether the appellant have standing appellant is standing and whether whether the statute or is unconstitutional but rather to to judge the advocates themselves something that we do every day but don't ordinarily announce so it's a pleasure to to read this judgment starting with the the best oralist and know they'll be differences of opinion in the in the room but somebody has to decide and it's the view of the panel all of these judgments are unanimous I'm really dragging this out that the that the best oralist moniker goes to miss Eyre [Applause] the the award for the best brief which is made vexed by the fact that there are three briefs that has to say the petitioners filed both an opening brief and a reply brief we're not really choosing the best brief we're going to choose the best briefing that will go to the petitioners repellents [Applause] now somebody has to win as well overall and that decision is is made particularly difficult by the fact that the teams were so well matched not surprising having each survived several rounds of competition as I understand the the team that is best overall is judged on both the oral performance of both of the advocates and on the brief which was the product of the entire team and was our judgment it is our judgment that the overall better team is the respondents the paths of loyalty [Applause] to be more precise it was the john rawls memorial team we're each going to be brief and commenting on the on the proceedings this evening and then we're looking forward to meeting with the team members to discuss the the overall competition briefly after after this session and before the reception I want to just say from my part that you alternative excellent performances both written and oral I do think that on the on the on the oral perform the oral arguments that it is some something that you've come to to realize with confident with with time and experience that it's really a conversation you want to have with the bench as though you were sitting around the table and discussing something it's obviously more formal than that but it's there's got to be it can't be programmed there's got to be give-and-take and responsive to what the courts interested in it sometimes the wise course to abandon a topic and move on to something else in in any event to try to be as responsive as possible to the questions in each in each of the presentations that are all for the presentations I would say there were there were areas in which people were very good others in which they could have could have done better I can only suggest that in addition to the great training that you've acquired by going through this competition that you take the opportunity of this while you're here in Boston this year or wherever you'll be for the summer or if you've been graduated where you'll be working next just to go down to the courthouse from time to time and see some of the arguments if you can if you know when there's a good one coming up so much the better the best argument I have ever seen bar none wasn't argument that Professor tribe put on in the Supreme Court I wish I went up to see because I've I had a dog in that race when I was in the in the government but it was just as if he'd had nine people over to discuss something and they were discussing the give-and-take was really impressive well they're not all that good but you will see mistakes you'll see that you want to emulate if you do observe arguments from time to time and incorporate that into your repertoire I wanted second what judge Ginsburg said about how impressed I was about the advocacy skills that each of you showed in the briefing the briefs were first-rate I think all of the briefs were really a at a level that's way beyond what most of the briefs that we get in courts of appeals throughout the country are and I think your oral argument also was outstanding I think one of the things that's hard to understand is that you can get friendly questions from a judge and you want to make use of friendly questions and you can get tough questions from a judge who's going to end up deciding in your favor so you really don't know what's happening at oral argument what you do need to do is what you did which is to make the best use of the questions that you can and keep getting the material that you feel is critical to your winning whatever the three or four points are for your side to keep going back to those and to emphasize those and to weave the questions in but I agree completely with judge Ginsburg that it is a dialogue that the judges are asking questions usually because they have concerns and issues that they feel they need to resolve in order to decide how to decide the case and I think that your oral arguments really helped us to understand the issues in this case and if it were real case we would would have benefited a lot from this experience here and who knows whether someday one or another of us will have one of these cases but I'm very much impressed by the caliber of the briefing and of the oral argument and certainly you would be welcome in the Sixth Circuit as advocates you would raise the level substantially I would like to echo the comment about going down the courthouse and listening to some arguments there is a remote possibility that all of you will be handling constitutional issues if in very few of you will probably go into little gay actual litigation and argue in cases but for those of you that do and are interested in you need to get down a courthouse there's a lot of day-to-day things that are going on you could keep up with who's coming to town who's arguing I've had the good fortune of having several of it faculty members argue to me on different panels that I've been on and I've heard some of the great lawyers in this country in the civil and criminal area and and and you always learn we'll have a little time for the individuals to talk about little pointers and individual things so I just talk about things in general and what I like to get across them on these midcourt arguments is there is the idea that our whole system is based on advocacy advocacy system in other words we bought off into and and spouse and cherish the idea the truth and a good system of law is going to come about because we have lawyers on both sides of an issue presenting the best arguments to judges and that as a result of being well informed the judges are going to make decisions that are going to bind other people in similar service situations and the very core of our system is a reliance in a trust in a faith in the work of lawyers I don't tell a whole lot of lawyer jokes because I really love lawyers and I and I think that you know we were writing the Magna Carta when doctors were putting leeches on people [Applause] this is a wonderful wonderful profession with tremendous responsibility to the members of your community the people in your country and in the United States of America the greatest country in the world is a symbol to all the other countries in the world and a lot of that goes back how good we are and how good our system is it goes back to y'all and the people that were in the halls before you and the other law schools around this country and it's really easy to get worked up when you're going to get an award for being the best or list but you know you may be arguing for an immigrant a Social Security recipient criminal case or the prosecution for the defendant and that's all part of the positive law becomes a positive law of this country and so it's not to be taken lightly your duties and just keeping I would ask you to always be as serious as you are I mean I have the time I'll always be a serious and be as mindful of how important you are to our society and how important you are to the judges we don't use the lawyers shape the law we're referees we decide whether the basket is good or somebody got in the end zone but you you you run with the ball within the parameters that we set and you shape the issues and you inform us and and we need you to be good and we need you to do good work and our society and our community needs that so I congratulate you on choosing this law school and to be a choice to become lawyers thank you [Applause]

Channel: Harvard Law School

Views: 1,394

Rating: 5 out of 5

Keywords: Harvard Law School, HLS, Harvard University, Supreme Court, Ames Moot Court, Douglas Ginsburg, Karen Nelson Moore, Fortunato Benevides

Id: 23NUwjGQlXc

Length: 128min 8sec (7688 seconds)

Published: Wed Oct 04 2017