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tv   Key Capitol Hill Hearings  CSPAN  June 22, 2015 10:00am-12:01pm EDT

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ake on this topic. as the court releases information, take -- stay close to c-span. there is your last live shot at the supreme court. that is it for our program today. ♪
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pensions are building inside and outside the white marble facade of the u.s. supreme court as the nine justices prepared to issue major rulings on gay marriage and president obama's health care law by the end of the month. again, we will possibly hear about those cases today, or tomorrow. monday is decision day. a potential enough that it will be adding any i now spend days. something that may be of interest to you, "national press club" will be holding a discussion on the future of gay rights, the current landscape.
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we were hear from the president and ceo of glaad. you can join us on a companion network for that discussion at 12:00 p.m. a look at a tweet here. "bottom of the ninth." the justices still have to wait in on gay marriage federal health care subsidies and districting. we will take a look at a conversation we had earlier this morning. ron paul joined us -- ron pollack to join us joined us. we will bring you back to the court when decisions are made. for now, let's take a look at
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what we discussed this morning on "washington journal" on the future of health care, depending on those cases. host: joining us now ron polla ck of families usa. he is the director. good morning. the u.s. supreme court soon to make a decision on subsidies for those who get health care from the government. what could happen if the supreme court sides with the plaintiffs in this case? guest: in one word, chaos. we will see millions of people lose health coverage. the 6.4 million people in 34 states that are affected, who are now receiving subsidies. if the supreme court sides with the plaintiff, they will lose subsidies. the overwhelming majority will not be able to afford health-care coverage. they will join the ranks of the uninsured. their lives, their health will
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be in jeopardy. what will also happen is when those subsidies are withdrawn the people who are most likely to decide not to get coverage are younger, healthier people. you will have sicker, older people -- they will probably find some way to get health insurance, but when you have a pool that is composed of older and best healthy people, and the younger healthier people drop out, guess what happens to premiums -- they scott skyrocketing. we are going to see what some call a death spiral. each year, as the premiums rise, more younger and healthier people will drop out. the premiums will continue to escalate. some have estimated that the increase in premiums will be about 47%. it will mean, for everyone, the
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health insurance market will be totally chaotic. host: you said that people who are affected by it may have some avenues of recourse if the decision does come against them. where are those avenues? where can they turn to if they lose subsidies? guest: if they lose subsidies they will have to beg, borrow, or steal -- i am be a little facetious, but it will be very hard. for most people, the premium subsidies are very substantial. it means that they will be an increase on an annual basis of over $3000, on average. in some states it will be more than that. for a lot of people, they will simply be unable to afford health insurance coverage. one of the things that the informal care i does, that i think everybody likes, is it says that those who have pre-existing health conditions they can no longer be discriminated against by
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insurers or deny coverage. those protections will stay, but these folks who have those protections may not be able to afford health insurance coverage. it will be tremendous hardship for people. a lot of people will be at great risk in terms of their health and lives. host: what is the role of congress if the decision goes against the administration? guest: congress clearly could fix this. this could really be fixed with a one-page bill that could be really fast and moments. i must say that those who have encourage the bringing of this lawsuit, they have a special responsibility here. they tend to be republicans who oppose the affordable care act. so far, what we have seen in terms of proposals is that they don't replace what exists
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today. a lot of people who are uninsured today they will not be able to get subsidies under these proposals. the best that could happen is those who are getting subsidies might be able to keep them. but -- here is the key thing -- each of these proposals hold these partial fixes hostage to a wholesale changes in the affordable care act. those changes are not going to be signed by the president. i think, for republicans who have encourage this lawsuit they are probably going to want to say to their constituents -- we want to protect you. they will shed tears about people losing coverage, but the proposals so far that we have seen and there have been a number of them do not appear to either get the job done or they hold these partial fixes hostage
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in a way that will never happen. host: we will talk about those fixes and the pending decision and the supreme court specifically as it looks at the president's health care law, and the topic of subsidies. if you have questions for our guest, call the line, (202) 748-8001 for republicans. (202) 748-8000 for democrats. (202) 745-8002 for independents. what about the idea proposed by some that congress passes a short-term extension of subsidies and give states to figure out a plan on their own. guest: i think anything that leaves it to the states will result in -- clearly a bunch of states will not opt into this. that is particularly true about states run by republicans who are running for president. i'm not very hopeful about what
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would happen in texas louisiana, possibly florida, wisconsin. if the supreme court rules with the plaintiff, i think we are going to see lots of people who will just be left out in the cold here and in texas, for example, the are over 800,000 people who are getting subsidies. i do not write now see a formula by which they would get those subsidies restored. in florida 1,000300 20,000 people are getting subsidies. so far, we have not seen the governor or the house saying they are willing to do something to restore the subsidies. some states may restore subsidies. we are hearing so far that pennsylvania, delaware arkansas are considering efforts so that they would run the marketplaces. it will be unclear how many of the states will come and and how
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many will not. host: for our guests, calls from you. let's start with vbberry and michigan. caller: good morning. i am curious. when they talk about the subsidies, if they make this -- subsidies are not constitutional for the health care. does that mean all subsidies are unconstitutional? the oil companies, anybody. i don't understand that. if that is not the case, how do they pick and choose what is constitutional for this person and not for that person? i don't understand how this will work. warner open a big can of worms for everybody in this country. guest: one of the things that he misstated in his thoughtful question is this is not an issue
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as to whether the subsidies are constitutional or unconstitutional. that is not what is at issue before the supreme court. what is at issue is whether the affordable care act allows subsidies to be provided in all 50 states or whether they should be prohibited from the 34 states where the marketplace is run by the federal government in lieu of the states. it is looking at the statue to just urban whether the statute allows subsidies to be provided. it does not have any correlation with subsidies and other programs. as a former law school dean, i think this lawsuit is fiche is -- you have to look at thee entire lawsuit. the statute says that in all
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states people can apply for subsidies. why would people have the right to apply for subsidies in 34 states if there will always be turned down? that does not make any sense. the statute says that the federal government, when it is running these marketplaces, should report to the department of treasury who is getting subsidies, how much they are. why would the federal marketplace have to report about the subsidies if they are supposed to be withdrawn? the statute says that eligibility is based on income. it is in the subsection that deals with the size of the subsidies where the controversial language is located. you have to conclude that people are eligible for subsidies, but in 34 states the size will always be zero dollars. none of these things make sense. i think the court will rule with
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the government and keep the subsidies, however we have to take this lawsuit seriously. for justices decided to hear this case, and they decided to hear it under extraordinary circumstances. there were two quarcourt of appeals that already scheduled arguments into court, and the court decided to leapfrog. obviously, there were four justices who wanted to hear arguments on affordable care act again, so that is worrisome. host: margaret in florida you're next. caller: good morning. i'm so glad i tuned in. i find it interesting that you have not said anything in the first five minutes with this great -- a straight face.
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i think you mentioned the house shedding tears. i remember when this was pushed through with our speaker talking about how we can get this through and then read it. i think it is interesting following justice roberts, then of course we have professor gruber who talked about how stupid the american public is, and now i hear -- because he used to be dean of a law school -- and so subtly this is a bad law case. i would remind you have a people are against this monstrosity. you could be against this without having an alternative. i would remind you of the people who lost their coverage their insurance, and the good things they had. and i would remind you of the 32 million people who would not be covered by this monstrosity. suddenly, our president says that they must week very
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sarcastic about our supreme court. of course, you did not mind the supreme court when they used verbiage to change taxes. i think everybody should talk about gruber. as you smile and smirk and that disrespectfully to our congress, you better remember who they represent which is many, many people. guest: i get the impression that margaret is not like the affordable care act. i would remind margaret and others of the great progress that has occurred because of the affordable care act. we have seen more than one out of three people who were previously uninsured gain coverage. we have made significant progress. i think that we are going to see the court uphold the provision of the subsidies. if that happens, i think we will
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continue to make progress so that not just 60 million people gain coverage, but many more. host: from florida, steve is next. caller: thanks for taking my call. first of all, you are calling this the affordable care act when it is not affordable. it is unaffordable. i pay $337 per month. when i go see a doctor, they want to run all kinds of tests on me, and my deductible goes up and then i have a bill at the end of the year for $10,000. they don't cover note dental and no eyeglasses. if we do lose the subsidies why can't they just there was all on medicare? thank you. guest: steve raised some important issues. issues that i actually very much
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agree with them on. that is that right now the affordable care act does not cover people over 18 years of age dental care, eye care. those are things that i hope will be changed sometime in the future. he is right. right now, neither dental care or eye care is included. my hope is that we will do much more in terms of enabling people to get coverage without high deductibles. i think that is the next agenda item. many efforts are being made to include a variety of key services -- prescription drugs, primary care -- that would be allowed to be provided in advance of the delectable. there is no question. we still have a lot to do to make care more affordable. we have taken great strides to make insurance affordable for the first time. host: with the subsidies always
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intended to be given for the life of the health care program or will states eventually have to take them over? guest: the subsidies we are talking are permanent. they are provided on a sliding scale. what we mean by a sliding scale is the lower your income the greater your need, the larger the subsidies. the federal government picks up 100% of the cost. that is a permanent provision of the law. host: from new hampshire dan. caller: good morning. not only is the lawsuit specious, but so is the standing -- another example of the right wing court reaching out. my main statement is that the 34 states are all republican states. they are the ones like your two previous callers -- the ones who hate the law.
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what i would like to see happen is they rule in favor of king let the insurance markets in the states collapse. it is the only way to put pressure on the governors and legislators to set up their state exchanges. and as far as the 31 million uninsured, that is because 34 states did not expand medicaid. that is my comment. thank you. guest: dan raise a number of issues. he raised the question as to whether the plaintiffs in this case are appropriately plaintiffs in this case. i think he was particularly referring to the lead plaintiff, mr. king. there was a long article in "the new york times" that interviewed mr. king. he is actually available to veterans benefits. he is in good shape. there is a question as to whether all of the plaintiffs have standing.
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dan is also right because the reason we have a significant number of uninsured, despite the progress that has been made, is because you have a whole bunch of states -- right now there are 22 that have not implemented the medicaid expansion. that means the poorest of the poor are not getting protection. this includes states throughout the southeast from texas all away up to virginia. that has been a significant part of the problem. despite that, i think we will continue to make progress. host: that could potentially be an option. guest: it is an option. some states, i have hopes that the states will decide to implement the medicaid expansion. we have had 10 states so far with republican governors that have decided to implement the expansion. these are governors that say, i do not like the affordable care act, i would like to see it repealed.
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host: can they get federal assistance for that? guest: with respect to the medicaid expansion, it is 100% paid through by the federal government through 2016. in 2017, it is 95%. it goes down, but it never goes below 90%. host: from nashville, tennessee, brant joins us. caller: good morning. there was no options for socialist. i am one of those medicaid persons not covered in tennessee. you forgot to answer a question. why can't they lower the age of medicare or put the people who can't get medicaid on medicare? guest: it is a good question. you are right, i felt to answer steve's question. thanks for reminding me.
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it is possible, at least from a legal standpoint, that we could change the medicare law and make eligible for people under 65 years of age. from a political standpoint, i think that will be a very difficult proposition. there were a number of people who wanted what is called a single-payer health care system. that is what you are talking about. there were precious few votes in congress for such a system. it could be done, but politically it is a very tough sell. host: "the new york times" talks about the insurance companies and says this. large, for-profit insurance companies have benefited from the law. is that your experience as well? guest: yes.
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i think that is quite accurate. we have seen a reduction not a huge reduction but a reduction in the number of people who have employer sponsored insurance. that is the predominant way that people have coverage. there has been a reduction over the years. now, the insurance company understands that a marketplace that is likely to grow is the marketplace that involves individual coverage. that is what the affordable care act allows. with the subsidies, it makes a lot more affordable for people to gain coverage. this reduction in employer sponsored insurance occurred way before the affordable care act was adopted. that is because employers are saying the costs of insurance have risen substantially.
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some employers dropped coverage. others kept it for their workers, but charged more in terms of premiums deductibles and other out-of-pocket costs. increasingly, employers are feeling burdened by the cost of health care. employers are diminishing their commitment in small increments each year. as a result, we're seeing more people interested in the marketplace. host: here is victor from maryland. caller: i have a question for you. if this affordable health care is so good, why is obama and his democrats exempt? answer that for me. guest: we have seen people in the government, the president were members of congress, getting subsidies as part of their federal employment.
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this affordable care act, which provides opportunities for people to get coverage in the individual market is mainly for people who do not get coverage in the workplace. whether he does the president or members of congress, they have been getting coverage in the workplace. the formal care act really is there as a safety valve, as more and more people see coverage. host: from new hampshire, this is ron. caller: good morning. that pretty much hit the knell on the head. the hypocrisy of the republican party is laughable. most of the senators and congressmen are millionaires. yet, they receive subsidies and have tried 50 or 60 times to do away with subsidies that healthy poor, sick, elderly. it is ridiculous. the hypocrisy is laughable.
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i can say several other hypocrites things that the republicans are doing. it drives me nuts. they think that they are so self-righteous, but they cannot look in the mereirror. if we lose the affordable care act, i think every republican senator and congressmen should lose their subsidies and free health care. they don't need it. they can afford it. other people out here could use a little help. thank you. guest: it will be very interesting. if the court rules with the plaintiffs, which i do not think will happen, but obviously it could, then it will be a question as to whether the members of congress who encouraged the lawsuit but woven b will bemoan coverage, will
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they take the next step? i think the jury is out on that question. so far, i can't say i'm terribly encouraged by the bills i have seen. those are clearly not going to become the law of the land. host: mike leavitt was on a program on sunday, talking about the same topic and weighing in on what happens if this court does decide with the plaintiffs. here is his response. [video clip] >> if the court rules for king, i think within eight hours president obama will say, you can fix this, just change three words in the statue, and everyone's insurance to has received a subsidy will be secure. it will be a strong and direct message. then, the republican-controlled congress will respond in a way that is not quite as certain.
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there are three different points of view among republicans. one is that this is the moment that will allow them to repeal and hopefully replace, before look at. then, another group who believes that goes a little too far -- why don't we just asked for changes in exchange for those three words. [video clip] [video clip] caller: host: he seemed upbeat about a potential fix being able to happen. guest: i have to say, i complement the former secretary. here is a key health care leader in the republican party that has been responsible. i don't think we know yet how congress will respond. so far what we have seen has not been very encouraging.
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it can be fixed and it can be fixed easily if there is a will to do it. i think right now of the three groups that the secretary was talking about, so far it seems like the members of congress are actually not going to want to change and allow the six to happen without undertaking real flashing of the affordable care act. that will not happen. the president will not sign it. if we do not get any accommodation congress, then the question that you raise before, and what the "new york times" article suggest is that this will be figured out state by state think more states may come in to run exchanges, but other states like texas or florida, where there are huge numbers of people getting coverage and subsidies, those people will be left out in the cold. host: ron pollack joining us
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talking about subsidies. francis from new york, hello. caller: it couple of questions. i heard the german say -- the gentleman say that the government is paying for this. according to our laws, the people are the government. the majority of people don't like this law. i have a 60-year-old male living in a gated community, and i have to pay for maternity care? not only for myself, but for other 60-year-old males. i don't understand how the government can step in. this is like them saying, no more gas engine cars, you have to buy electric. how can they dictate what we have to buy. guest: was offensive is raising is a couple of things. certainly the subsidies are paid for with tax dollars. there is no question.
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that is how the federal government finances its operations. what is does -- where does this for the first time it makes health care and coverage affordable for millions of people. i think that is positive. francis might disagree. it is true that one thing the government did was it provided more standardized plans, and tried to make sure that substandard plans would no longer be the way people get coverage. for those of us that have health coverage, it was what we call swiss cheese policy. it had more holes than nutrition. the goal was to establish a standard. we also want to make sure that women are not discriminated against when they get insurance. that is why as part of the standard, we have maternity coverage. host: from virginia, here is
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mike. caller: thank you for thinking the call. my question for the guest is -- [indiscernible] what do we do about that? guest: i want to make sure i understand. host: could you repeat what you just said? caller: what i said is that the law -- immigrants are not supposed to go to the marketplace, but most of them were given social security numbers. they work and pay taxes, and some of them have tax ide's.
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what are they going to do? host: got you. thanks. guest: mike is right that those people who are undocumented, they cannot actually get coverage in the marketplace. those people, who are immigrants that are documented to go into the marketplace. if they are poor, they can also get medicaid coverage. like raises a very tough question. if a document advocates cannot get coverage through the marketplace what can they do to get coverage. go it means that for those who are undocumented, if they have a job perhaps they will be a will to get coverage in the workplace.
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they can go to community health centers. community health centers are in communities all across the country and they provide health coverage for people who cannot get otherwise. that is a recourse for undocumented immigrants. they can go and at least get primary care from a community health center. now, california is beginning to do something very adjusting. last week, california adopted measure that allows children under 18 years of age who are undocumented, to start getting coverage in california. that is a step in the direction that i think mike was looking for. until that happens nationwide, and is not clear that it will happen nationwide, the best choices for a person to go to a community health center, or if they have an emergency, go to the emergency room. host: if the court decides for the plaintiff, what recourse does the president have in resolving this? guest: i think the president
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will first say what he already has which is that this is an easy fix. he will probably produce a bill that shows and one page how to fix this. the president is smart realistic, and i think he realizes that congress may not pass that one page bill. what the president administration will that do is work with states that are considering setting up state marketplaces and help them so that they can get coverage quickly. time is of the evidence -- essence. so states are seriously considering setting up marketplaces, they will need help and need it quickly. demonstration will have to try to help him. host: no executive action recourse? guest: the president cannot wave a magic wand that will have
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all 40 states expand coverage. what he can do is make sure that the procedures that the states have to go through are workable. for example, one of the biggest challenges is setting up a website. states cannot just start now and expect on november 1 to have those websites operational goal. possibly they can use the website. those are the types of things that would help states. host: tallahassee florida, and the. -- brenda. caller: medicaid expansion meets an increase in taxes from the taxpayers in that state eventually. if it is covered by government
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subsidies, that also means an increase to american taxpayers. we are the government. this is a whole can of worms that obama open from day one when he pushed obamacare, and when pelosi shoved it down congress's throat when she said you must pass the bill so that you can read what is in it. guest: brenda is of course right about the fact that medicaid gets paid for with tax dollars. no question about it. in florida, it is really interesting. the government in florida has rejected the medicaid expansion. today, florida would be able to expand the program with 100% funding from the federal government, sure they paid for by taxpayers across the country. florida today has a medicaid program which has been
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operational for close to 50 years. florida, with his current medicaid program gets $.60 per dollar from the federal government. florida has decided do that. now, they are being offered 100 cents on the dollar. i don't understand. it seems like a no-brainer. there are so many things that a state gets out of this, in addition to being able to get federal dollars coming in instead of just going to california texas or new york. in addition to that, states often pay for what we call uncompensated care. when someone goes to a public cost no, the state picks up some of that cost. perhaps even more important the in every state, we have seen reports and analyses about what this means for jobs and employment.
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that means more revenue coming into the state without increasing tax rates. florida would actually benefit significantly from expanding medicaid. host: if justices decided for the plaintiff what is the likelihood that subsidies would end immediately? guest: i don't know what the answers to that. there has been a lot of speculation. during the oral argument of this case, justice alito suggested that there be a six-month delay. it is not clear what the courts will say. there are a good number of people who are saying, we will need some time to figure out what to do and give congress and the states time to figure this out. the answer is so far unknown. host: olympia, washington al elaine. caller: those three words were intentional.
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all you have to do is listen to burgers. you know that they were intentional. blame obama for this. secondly, billions of people lost their insurance and were forced onto the registries. some had to receive medicaid when they were paying zero for their health insurance because their employers were paying it. the third point i want to make is that deductibles are so high for some people, they cannot afford to go to the doctor anymore. you will, in the future see deaths result from that. guest: i want to take her left-wing for us. she talked about high deductibles. she is right. i family usa, we support the affordable care act but issued
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a report about one month ago saying that even though we have made progress in getting people insured, one out of four people who had year round and showed could not get me care because of out-of-pocket costs. there are varieties things that we hope will be done in the future to deal with this problem. brenda is right that a lot of people feel it is unaffordable to get the care that they need. one thing that can be done is we can exempt more services like primary care from the direct will -- deductible. we are hoping that more such critical services are made available prior to the delectable. host: who covers the cost of that? guest: it gets picked up by the insurance company. the other thing is we can
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increase the protections that people have when they have coverage such that -- right now for those people who are poor they have a cap on how much they have to pay out-of-pocket and the year -- any year. host: jerry is from pennsylvania. caller: yes. i have a few questions and comments to make. first of all, when nancy pelosi said you have to pass it to see what is in it -- i got the republicans did not sign that. i do not think any of you people, including myself, buy anything before we read it.
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that we have bloomberg telling us how stupid we are, that they had to lie to us to pass this bill. then, we have president obama taking on a copy -- people are not getting affordable care. that is a joke. it's a health care is so wonderful, i would love to see all of the senators, all of congress -- i would love to see them all pay for and have the same insurance that we have. they should have to live by the laws that we have. thank you. guest: jerry raises a number of points. one of the things that think is important to understand is we have now seen surveys of people
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who are participating through the afford will care act and getting coverage. kaiser family foundation, the commonwealth foundation -- all nonpartisan organizations. what we find is the people who are participating are very happy with the coverage they are receiving. and they feel it is something they don't want taken away. the other thing is it is true if you look at public opinion surveys, there is a mixture of views on whether the afford will care act is good or bad. slightly more are opposed to it than in favor. when you look at two other sets of questions you see it is a very different story. when you asked the public, do you want the programs to be repealed or would you like it to stay in place? there is only a minority that say they want to see it repealed . it is clear that the afford look at is something that the american public would like to see stay in place. host: eventually, how do you
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deal with sustainability? how you keep costs and expenses where they are? guest: one of the lesser-known stories of the affordable care act is in the last years, since the affordable care act past, we have seen of slowing down of health care costs. i don't think people, even like myself, say that the affordable care act is totally responsible. clearly part of it was the economy that had slowed down. but, the afford will care act has had a beneficial effect. what we saw before the affordable care act was passed was a skyrocketing of cost. now we are seeing a decent the ration so far the record is good. host: connor is up next in georgia. caller: good morning, c-span. host: you are on.
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go ahead. caller: i know i heard a lot of republicans say they want to repeal obama care but obamacare has been doing good for people down here that have it. my wife hasn't. she only has to pay $10 per month because her income is minimum wage. obama has been one of the good presence that we have had. he tries to make it better for those of us who do not have much. they do not think about the poor people. these republicans, they have had issues all their lives. they can afford it. some people cannot afford it. some people need to go to the hospital, but they don't have insurance.
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all the republican colors, they need to sit down and look -- we have enough problems, and we need to try to to take care of the people. our votes don't count. i thank you for hearing me. have a blessed day today. barack obama is a good president. he needs to get a bonus. have a blessed day. guest: charles makes a very good point by want at add on to it. there is no question that the affordable care act has helped low income people and families. medicaid has been a key instrument in doing that.
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charles, when he talked about his wife getting coverage and paying a small premium in the marketplace, there is no question that for those people who really need help the most, they are getting the most help because in the marketplace, the subsidies are provided on a sliding scale. the thing i want to add on to what charles is saying is that this is not just for poor people. the people who are getting these subsidies are middle income people. the subsidies go up to 400% of the federal poverty level. for a family of four, that is about $96,000 in income. of course, the higher income you go on that scale, you will get less help. this really helps middle-class people. increasingly middle-class are fighting health insurance has been unaffordable and they need help. yes, it is helping the poor, but it is also helping others who
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are working, can't get coverage through the workplace, can't afford health insurance, and the subsidies are making them affordable. host: let's hear from one more viewer. that is jerry in new york. caller: thank you for taking my call. i am a physician, an ophthalmologist. my purpose in calling as an independent is to comment on the discussion and the dialogue going back and forth. first, to make the short, the bill was passed by reconciliation -- something that was actually a backdoor manipulation. i happen to be neither for or against the aca. secondly, there is a significant difference between medicare and medicaid. medicaid, in law, is essentially not in qu a payment of tax dollars
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. there are technical realities to medicare that have it coming out of taxes paid by the people who it presumably returns. medicaid, distinct from medicare, and like the aca which is a chimeric of the two is the fundamental tax that the government allows as it sees fit. provisions could be passed through as easily as aca. medicaid, in law, is very hard to manipulate. finally what happens in these discussions is each party has its perspective. for instance, mr. pollock, when
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asked about mammograms several calls back by a male and a gated community asked about maternity leave. built into the aca is what is known as a backdoor to raise funds without coming forward and saying, we are taxing you you being the person who does not need this, in order to pay for someone who does. it is this expediency that tends to make people on both sides otherwise upset and revert to partisanship. host: i have to leave it there because we are running short on time. guest: jerry mentioned about reconciliation. it is really important to understand that there were votes
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in the senate, and they got 60 votes out of 100. ultimately, a , in past but at that point it was 59 votes. this past with a substantial majority. it is not like it passed through was some sort of subterfuge. host: what are the days like until we get a decision day? guest: i'm going straight to the court right after here. we have a number of people who are coming into town who are getting the subsidies, who will talk about their own situation and how they would be affected, depending on how the court rules. host: ron paul pollock, thank you for your time. guest: thank you pedro.
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>> a look at the supreme court today. some activity outside of the court. one of the last few days that they are issuing rulings. they issued a number of decisions, but not the ones attracting a lot of attention -- gay marriage and whether health care subsidies can stand for the health care law. a number of opinions released today. the next day that they will be meeting is thursday. they have added an extra day. the final day for this court to term, when we were here decisions from the court will be next monday. again, take a look at the court here. i want to show you some tweets from folks who have been covering the courts. scotus now has seven decisions to issue. that is from todd ruger. he also writes, final decision today not about obamacare or
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same-sex marriage, but the governments ths stability of the california raisin market. again, the supreme court ruling today that the raisin market program requires compensation to farmers. the next time we hear from the supreme court will be on thursday at 10:00 a.m. eastern time. we will keep you updated on what is happening at the supreme court, just a few blocks away from us at c-span. in terms of the federal health care law and the ruling, cnn reports that the health and human services secretary -- no plan as the supreme court guts obamacare, just days before the supreme court can gotut it,
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there is no plan. we do not believe there is an administrative solution that would undo the damage -- said about the supreme court ruling. again, that real rolling, we are still awaiting it. we could hear about it on thursday. the court will issue more decisions than. if not thursday, possibly by monday which is the end of the supreme court term. also, one of the big ones that we are waiting on is one that deals with redistricting in arizona. take a look at what congress on capitol hill is trying to do to fix this bill. it would uphold the independent
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redistricting commissions. a bipartisan do in the house has filed a bill to make sure that districting remains in place. to crafted a bill that challenges the authority of the states nonpartisan redistricting commission. drawing of lines could be restored to states if the supreme court rules against arizona. just a number of the cases that we are keeping our eye on. of course, one of the big ones is the gay marriage law, which included a number of different families -- people who have been married and certain states where there marriage has not been recognized and others. we will take you live to be "national press club" for a conversation about that. that will be at noon.
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we would hear from the ceo of glaad, an organization that works for gay rights. again, 12:00 eastern time today from washington, d.c.. aanother one of the cases that we have been hearing about is one that deals with religious liberty, also from arizona. we will take a look at the conversation from last thursday. >> read versus town of gilbert. >> mr. chief justice and may it , please the court, the town's code discriminates on its face by treating certain signs differently based solely on what they say. for example, political signs may be 32 square feet, may be unlimited in this number and may be placed in the right-of-way of the entire town for phi months before -- five months before the election.
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but the church's signs can only be one-fifth of that size, only placed in the dark of night the night before the church service. while the church's signs with directional content are only allowed up for 14 hours, other signs with directional content are allowed up for much longer. for example, builders' directional signs to home sales events are allowed up the entire weekend, and homeowners' association event signs are allowed to be up for 30 days.
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we are seeking the same placement that any other temporary signs get which is the category that we're talking about. and, in fact, the city, the town here has freedom to regulate the amount of time signs can go up, the size of the signs, the number of the signs. all our argument is that they do it across the board and not treat signs differently based on their content. >> your argument does not turn on the fact that it's a church's sign, does it? your argument would be the same
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if this was a temporary sign about where the soccer game was going to be. >> well, that's right. and the church's sign merely adds additional components to it. for example, the town puts the church's sign into a category called directional signs, but yet the church's sign has religious speech, directional speech, ideological speech, but that's correct. it's equal treatment for that type of sign. and the category -- >> i ask about the category for the political signs, which is the most favorable? because all the time this court says that political speech is the most valued kind of speech it's at the heart of the first amendment, it gets special first amendment protection. so in a way why aren't -- isn't the locality here basically adopting the same kind of category-based understanding of political speech and its special role in first amendment analysis that this court has very frequently articulated? >> but i think this court has also said, for example, that
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religious speech also a handles that category of core speech under the first amendment. and the problem is what the town does here, it's valuing speech. and i think that's one of the problems. it is saying that political speech in this case is more valuable than an invitation to church. so i think this court has made clear -- >> i'm sorry, that was the significance of my prior question. what they're really saying is that political speech is more valuable than speech about where the soccer game is. in other words, i thought you indicated that your argument did not depend on the fact that the sign was a sign from the church. >> well, that's right. it doesn't depend on that fact. i was merely referring to the facts of this case, i apologize. >> don't you think that political speech is more important than directions to the soccer game? >> maybe in some people's eyes but we have the problem of should the government decide which is more important?
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it has said your speech is not valuable, and we can completely ban it. >> well, let's take a sign that in all other ways is equal except that it says no signs on residential property except properties that are being sold. and so it's valued, the homeowner's right to sell its property. would that be contrary to the first amendment? and if not, why is that value any different than valuing political speech? >> i think it would be. i think this court's case in lynnmark dealt with a similar circumstance. that city and all residential signs -- it all for sale signs. this court said exactly that that the town shouldn't value different types of speech, especially on private property when you have homeowners' rights that also comes into play --
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>> what if its commercial when it relates to a one-time event? for example, a yard sale. >> right. >> if the state and the city allow election-related signs to be put up in the right-of-way, then anybody who has a yard sale has an equal right? >> well, i think commercial speech under this court's jurisprudence can be treated differently, and that's one of the important things. the category here is narrow because government speech, government can put up whatever signs that it would like. it does not trigger any problem under the first amendment. we hear a lot in the other briefs about warning signs and other types of signs. the government is free to put up signs without triggering this problem. commercial speech, so the narrow category that we're talking about is temporary signs, not permanent signs that are put up in the right-of-way that can be regulated. >> do you think directional signs is a valid category? >> the reason i don't think it is a now category is because
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here the direction is part of the invitation to come and worship or part of the invitation to come to a different event. so the directional part of it is in addition to the invitation to come in and worship. so although it appears to be a directional, it's important to -- appears to be a different category of directional, it's important to the speech of the church inviting the community in saying come worship with us, and here's where we're located. and what's interesting about that, if the church, for example, says we're meeting now at senior living center, that's considered to be a directional sign because the definition is a sign that's intended to invite and direct someone to your service, that would then be banned in the right-of-way. >> i guess you see the concern. if an affluent person wants to celebrate a birthday, he can put happy birthday uncle fred as many places as a political sign and as for long. >> well, i think one of the issues is if the government has decided that its interests -- which, by the way, is what drives this -- the interests in safety and aesthetics, if those
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have already been deemed to be less important than speech, then i think speech should be allowed. >> but your answer to the question is happy birthday uncle fred can have as many signs and for as long as a political campaign? >> i think that's right. >> that has to be, it seems to me -- what about a historical marker, birthplace of james madison or whatever? >> i think the answer to that is that the government is -- >> no, no, it's private. privately owned. >> well, i think if it's allowing private speech, then we engage in the problem of valuing, for example, in that case we think that marker is more important than someone else's speech. >> so, again, under your view happy birthday uncle fred and save your soul and birth place of james madison can all be up for the same length of time, same size? >> i think it can. otherwise we have a problem with content-based discrimination. >> what about permanent signs? i assume it would
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apply equally to permanent signs, wouldn't it? >> it would, but in another category. ours wouldn't affect permanent signs. that's a content-neutral category. but if you had a permanent sign, i think the answer is -- >> within the permanent sign category, they all have to have the same -- >> i believe so, except -- >> commercial. >> especially most of the permanent signs are commercial signs when you talk about billboards and other types of signs. >> right. >> so this court, i think, has made clear if you do have permanent signs that do allow commercial speech, then the municipality -- >> what would happen if the church has this, always meets in the same place, and it wants to put up a sign that says every sunday this is the place to go, and another church moves around, so it wants to put up a temporary sign. do they have to be treated the same? >> i think they would. if we're talking about the category of what goes on public
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property, what goes on the right-of-way. on their own property is a different question. but here the town has already decided the allow an unlimited number of political signs up to 32 square feet for nearly the entire year. there are four elections in arizona. so with this time limit of five months, you have political signs in an unlimited number. and those signs affect the safety and aesthetic interest the same way as the church's sign does, the same way as an invitation -- >> how do you create your temporary category without reading the sign? and so there is some force to the counterargument that what is being regulated here is not the content of the function of the sign. so how do you get around that argument? you've already created a category that requires you to read the sign. >> i don't think it does. and the reason the way the temporary sign is defined here is merely a sign that's both intended and constructed
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not to be permanent. it does it matter what is on that sign. -- it does not matter what is auld lang syne. that's why we think that category is content neutral. as long as it's a temporary sign, it doesn't matter what the sign says. there can be duration requirements, size requirements, location requirements, that the government -- >> so your point is if it's stuck in the ground with a little stake, then it can be treated one way, but if it's in concrete -- >> that's right. >> but seems to me you're trying to find, i don't know, a difficult way to deal with an issue that could be readily addressed just by seeing if the sign is for a limited event. in other words, what if somebody every time -- you know, the stake in the ground basically could last for three weeks. so every three weeks they come along and stick the stake back in the ground. you're saying the only way they can distinguish is by looking at whether it has a stake in the ground or whether it's in
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concrete, and yet it seems to me that doesn't help, that doesn't answer the city's legitimate concern. >> but i think what's important here is that the city, the town's already agreed that an election is an event. and so we have an election that's an event, but yet that single event sign can be up for five months, and yet we have an event where that single event can only be up overnight. it's already made that determination when it allows this type of signs for what i think is a comparable use, a single event to a single event. the other thing i would say is if you allow signs to be up for one single event for five months, certainly there should be some way to say if we have a recurring event as we do here at least equal to the same time. >> well, i mean, to say that an election is a single event in the same way as a football game, a cookout, a basketball championship, it's, it seems to me it's a very difficult thing for this court to have to say. it's just not -- a political campaign is a dynamic that goes
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on for some weeks that the signs initiate a discussion. i can see you can say the religious sign does or at least should initiate the same discussion on issues that are certainly of the same importance if not more -- >> certainly. >> but it seems to me you're forcing us into making a very wooden distinction in a proliferation of signs for birthday parties, for every conceivable event that could be up for five months. >> but i think the problem is there already is that here because we have an unlimited number of political signs. if the streets are already littered, which they are, then how serious is the town's interest to reduce clutter? and i think that's the problem. for example, many different ways. you can only have one sign per block, five signs total. it could only be a certain size. but it's hard to take the interest seriously of reduce -- reducing clutter when it
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allowed political signs to clutter the entire town in an unlimited number for the entire year. the church's signs and event signs are not the problem. what we have here is carte blanche authority for political signs to clutter the landscape unlimited in number for the entire year, and yet the concern is for maybe if he or signs -- a few more signs that may be placed. >> and the town say that signs relating to a one-time event, an election or anything else that occurs on a particular date have to be taken down within a period of time after that event and if it can say that, isn't that content based the way you define that concept? >> i don't believe it is, and in fact, the washington, d.c. municipal regulations have that same code, and it's one we could recommend, 13605, and what it says is all temporary signs should be treated the same , period. you have to put your date on the sign for when you put it up. every temporary sign can be up for 180 days. if it's tied to an event after the event is over, it needs to
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be down 30 days after the event. i think -- our opinion is the reason that's content neutral is whenever something is over, if your store is closed, the event is done, then the sign can be removed. but the important part is every sign can be up for that amount of time even if the event is over -- >> i thought the way you distinguish between temporary signs and permanent signs is based on the nature of the sign, not what it says. so that gets you over the problem justice sotomayor mentioned about having to read the sign. but if there's a rule that the sign has to be down within a certain period of time, i don't see how you get around reading the sign. >> well, what you would be reading would be the date, and the code requires the date to be placed on the sign both for when the sign is placed and for, you know, for what the event is. but i think -- >> so if somebody puts up a sign for a yard sale two days up for
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the yard sale, that can stay up for 48 days after the yard sale? it has 50 days or whatever the period of time is? >> yes, according to the code. but what's interesting, that time period can be anything the town desires. it doesn't need to be -- and we're not looking for signs all year long. the town can say, for example, temporary signs can be up for seven days, they can be a certain size. like washington, d.c. does, you can only have three signs per block have to be spaced out. and that's part of our point. and i think one of the things to take a look at is the brief that's been filed on behalf of the town by the national league of cities. on page 10 and 14, it lists dozens -- >> [inaudible] >> page 10 on behalf to the -- on behalf of the national league of cities, and the reason i point that out is we don't believe this would tie the hands of the 00:17:09 ?
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towns because there are dozens and dozens of ways to regulate signs on a content-neutral -- >> what page is this? >> this is page 10 on the national league of cities amickey brief. spacing, placement criteria, ground signs, project signs and , my point is if you look through their brief, there are innumerable ways for the court -- excuse me, for the town to regulate signs. there's no reason to look at the content of the sign. and the reason is the content of the sign affects the government interest of safety and aesthetics in the same way. if you have, for example clutter, whether it's the church's sign or a political sign, it's going to clutter the roadways the same way. so the way to deal with clutter is an easy rule and, in fact
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even the town can see that the content-based test this court has used and that the majority of the circuits now use in the sign context -- the 2nd, the 8th and the 11th, applied this test to sign codes. and they say it's actually easier for the towns -- >> would've of the versions -- what about the portions of the country where there's scenery? and people want to keep the scenery the same? and they don't want signs at all? but they don't want to say no signs because someone wants to put up a sign that says geronimo is buried 50 feet away from here. they say, okay, we'll make an exception for that, does that mean they have to make an exception for everything, and pretty soon the entire state of wyoming is filled with clutter? >> i wouldn't say everything but they could say, for example -- >> no, no, it's not a content-neutral category.
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what it is, is it is a category that says if you want to say geronimo is buried here, you can. because that will bring people to look at the grave. and that's it. we don't want anything else. we're trying to keep the place looking nice. that's not a city. cities are filled with clutter anyway. at least most parts. but that's -- so what is -- i'm trying to drive at what is your definition of content neutral? which is something that i wonder. >> uh-huh. >> since i think the entire u.s. code is filled with content distinctions. all of crime is filled with content distinctions. all of regulation has content distinctions. so what is it precisely in respect to the content neutral rule that is consistent with the u.s. code and is consistent with the example if any, that i gave? >> the definition we would propose is the same one this court has used since the mosley case about what is content based, and that is the restriction or the regulation looks at the subject matter -- >> try criminal code and
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solicitation where if you solicit for certain things, you commit serious crimes, and if you solicit for certain other things, they're less serious and so forth. we all know that. how does your definition apply there or how does it apply -- i'm confused. i understand the words -- >> right. >> but i just have never been able to understand how they apply in -- [inaudible] >> only limited here to free speech questions, not criminal laws -- >> i'm sorry. there's a free speech question under criminal law. does the first amendment permit solicitation of drugs to be punished less or more -- you understand what i'm driving at? >> i do. >> the u.s. code. >> i do. >> what i want and am hoping for is enlightenment. [laughter] >> if it's a conduct-related offense, we don't get into free speech. i believe this court's cases
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say, for example, there are cases where there are criminal laws, this, in fact, is a criminal law if you continue to put up your signs, you could actually get signed and jail time -- get fined and jail time. i think there are many ways for the local i the regulate those signs. for example, if it doesn't want many signs, it can say one person can put up temporary sign or permanent sign or whatever have you. but to say, for example, you can put up a private sign because you think one location is interesting, what if another person has a location they want people to come visit? >> should the government be able to say we think your location is important, but your location is not? and our response is the government can put up that sign if it wants to make that choice about historical landmarks or directional types of signs. i'd like to leave the remainder of time for rebuttal, if i may. >> thank you, mr. cortman.
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>> thank you, mr. chief justice, and may it please the court, we agree with petitioners that respondent's ordnance here is unconstitutional, but we think that the context-specific intermediate ruby -- scrutiny should apply in exceptions to a sign ordnance where those exceptions are based on the same longstanding traditional rationales that justify the sign ordnance as a whole. a wooden application of strict scrutiny in this context would suggest that it's presumptively unconstitutional, for example, for a town to limit signs on public property but have an exception if you want to paint your street number on your curb. now, that doesn't make a great deal of practical sense, and that's not an example i just made up. that's essentially the ordnance this court upheld, albeit without addressing this particular issue, in taxpayers for vincent. on a theoretical level, the
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normal reasons for deep judicial skepticism of exceptions to a regulation of speech don't apply in the context of that street address exception, exceptions for danger or safety signs or other types of exceptions that track the normal safety and non-proliferation rationales for a sign regulation. those kinds of exceptions don't create any inference that the government is attempting to favor one viewpoint or another that it's trying to limit the set of ideas that are going to come into the public marketplace or that it doesn't truly believe in the safety and non-proliferation rationales that underlie the sign regulation as a whole. >> well, i mean, you obviously know the difficulty with that which is how does the government decide when this should be an exception, how does the court decide when there should be and there should not be? i understood the whole point of the strict scrutiny for content-based restrictions is to find out which are the types of speech or the particular types of regulation that should be
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given an exception. rather than starting with saying, well, you don't apply this scrutiny because there ought to be an exception. >> well, i think the main problem of strict scrutiny is it sends a signal to legislatures that they're on safer ground if they enact a broad and undifferentiated restriction of signs than if they try to tailor it to those types of signs that cause the problems they're trying to prevent. and i think the way the court can manage the situation is to see whether under intermediate scrutiny there really are safety or non-proliferation rationales that track on to whatever exception is being drawn. for example, justice sotomayor's exception of the for sale signs. a town might have an ordnance that limits the number of signs you can have on your lawn to two, two signs of any type. but it might also say we're not going to count for sale signs against your quota of two, and the reason is that for sale signs are only up on a very small percentage of properties, up for a very limited purpose
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when the property's for sale and they go down once the sale is consummated. >> you want us the sort these ordnances out one by one? >> no -- >> and examine each of these exceptions and say, you know, this is okay, and this isn't okay? i don't know that the federal judiciary is numerous must have -- enough to do that. [applause] it is a much more simple rule that the other side presents. keep all signs the same. if clutter is the problem, they are all clutter. and you shouldn't allow or disallow on the basis of the message. >> well, your honor, it's a simple rule, but i think it's an extremely impractical rule that is going to foreclose experimentation and local solutions to local problems. let me give you another example of a town that has some sort of sign restriction, but it doesn't apply that to safety signs like children at play or hidden driveway ahead. if you're going to apply strict scrutiny to those kinds of
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exceptions, they're probably not going to pass muster unless it's a really watered-down version of strict scrutiny that i think is unfamiliar to the courts. there's actually a -- >> yeah, but what's the problem? you make, you make your sign limits big enough that those signs will attract attention that's all. >> well, i think towns legitimately should not have to be put to the choice if they want to prevent the proliferation of signs that would cause safety problems -- >> or have the town put up the signs. in which case they can be as big as the town wants. we're just talking about private signs here. >> your honor -- >> you're saying every private individual has to have a big sign, children at play right? >> well, i don't want to resist too hard that the government can put up any signs it want, but i think the reason we think the government could put up the signs here is not that the government 00:27:00 ? can say it can speak on surgeon
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topics and private citizens can't, but because of the nature of the signs that are being put up which means some work has to be done hoar by the type of the fact of signs i described are safety signs, now, it turns out there's actually a fairly robust empirical debate about whether children at play signs or hidden driveway ahead signs actually do enhance safety. and courts are going to have to make a one-size-fits-all conclusion about whether the state of the evidence -- which right now is fairly equivocal -- justifies that sort of exception. >> counsel, i'm not sure your whole approach is not precluded by our decision in mccullough. there we is said a facially neutral law does not become content based simply because it may disproportion ally affect certain topics. in other words when you're dealing with a initially-neutral law is whether the law is justified without reference to the content.
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so it seems to me that you've got to get over the content neutrality. your argument only applies when it's content neutral, and yet here we're dealing with a situation where you're saying it's an exception to the content-based rule. >> well, your honor, i think the court can deal with the competing interests in this case more easily not by getting bogged down in the definition of content-based and con innocent-neutral but by focusing on the bottom line question of whether this is an appropriate case for strict scrutiny or intermediate scrutiny. >> when you use those labels in the context of the first amendment, do they mean the same thing that they mean in equal protection? that is intermediate scrutiny is a pretty tough standard in equal protection. >> well, i think there are a couple of flavors both under the constitution at large and under the first amendment in particular. i think here we'd be urging
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something more like a reasonable fit test which we think would give municipalities enough room to draw the kinds of distinctions that i think they reasonably should be able the make between painting your street number and your curb so people can more easily find your house and restrictions on, you know, particular types of speeches that are much more likely to be motivated birdies agreement by that speech. we do think intermediate scrutiny has a fair amount of teeth in the circumstance, and we're putting our money where our mouth is because we think the particular ordnance at issue here fails intermediate scrutiny. but it would give enough room to draw in particular the kinds of distinctions that are drawn in the highway beatification act which allows certain types of signs that do enhance safety and aesthetics but generally doesn't allow the grounds on the sides of freeways to become a breeding ground for signs which would decrease driver safety and -- [inaudible conversations] >> i'm sorry.
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>> do you think that a library could say big books are preferable to little books and it so happens that big books are coffee books and little books tend to be mostly political, so we're going to put all the political books in the basement and all the big books on the main floor? is that a distinct that the first amendment permits? >> i think a court might be reasonably, fairly skeptical of that kind of distinction, but i think signs, your honor, present particular first amendment problems that the court had to grapple with and didn't quite resolve in metro media and city of ldoux. one distinct problem with signs is that it's very difficult for legislatures to tailor sign regulations and describe types of signs that it doesn't think it needs to regulate to advance its interests, thereby allowing more speech without describing those types of signs in a manner that could be viewed as content based. and that's what makes sign regulation very difficult and why we think some sort of context-specific rule in this
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circumstance would be appropriate. >> i don't see why. i mean, you say it, but why is it true? just make whatever the sign requirement is big enough that any private signs that need to get people's attention will get people's attention. >> well, i think -- >> what do you say about signs i assume applies to noise as well, right? if the city has a noise ordnance, it can distinguish between noises for various purposes, a political sound truck before an election can be given a higher allowance and, i don't know, a street evangelist given a lower allowance? >> i don't think that would be permissible, your honor. i think that one key here is that the types of exceptions we're talking about, the only types we think should be subject to intermediate scrutiny track the safety and non-proliferation rationales for the sign ordnance as a whole. if the city is advancing a distinction based on the fact that they this think political
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or ideological speech is more valuable than, say, religious speech, we think that would be subject to strict scrutiny. thank you. >> thank you, counsel. >> mr. chief justice and may it please the court, the problem with applying strict scrutiny in this case or this type of case is that it will have, we believe, the opposite effect. it will limit speech because towns, cities will enact one-size-fits-all in order to do that as counsel indicated, there needs to be limitations on the number of signs, on the duration of signs. the signs would have to be all large enough to accommodate the largest message that needs to be communicated. and in order to pass strict scrutiny, the legislatures in these towns and cities across this country would be inclined to ban all signs except those
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that the first amendment absolutely allows. >> you can make that argument in all kinds of contexts. i don't know where it gets you. suppose the question is whether we're going to -- whether the town is going to allow anybody to speak in a park. and the town, the town council says, well, you know, we would like to have people be able to speak on subjects that we like i but there's some subjects we really don't like. we don't want people to speak on those, so we have the choice. we allow everybody to speak, or we allow nobody to speak. you can make exactly that same argument in lots of other contexts where i don't think the distinction could be justified. wouldn't that -- isn't that right? >> i think there's a difference justice alito, in signs as opposed to speech because signs do take up physical space. they displace other uses of land, and they perform different functions. one thing that we would like to
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emphasize in this case is that the temporary or directional sign provision is limited to in signs that are intended to guide travelers along a route from point a to point b. if they have expressive content on them, then they are no longer a directional sign but are then an expressive sign, and there's a different provision that applies for that. >> so if the sign here said we welcome you to attend our church service and then it says on the bottom meeting place and it specifies the meeting place, but the message is we welcome you to attend our service, that's ideological? >> that is ideological. that would not be a directional sign, because it is not directing travelers along a route. >> but it says also -- [inaudible]
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>> the way that this code has been interpreted, justice ginsburg, is that would not be a directional sign because it's not saying turn right, turn left, go straight a few miles. it's not giving directions about how to get there. so i believe that that type of sign would be permitted in under this ordnance as a ideological sign and would not be limited to the terms of the temporary direction -- >> mr. savrin, could i ask what your justification is for these especially generous provisions on ideological signs? putting aside the level of scrutiny, why do you have these very generous rules for ideological signs as compared to others? >> well, specifically on the ideological signs is to protect the first amendment right of anyone to speak on any topic at
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any time. the difference in the -- >> so you're not even purporting to have a content-neutral justification for this. you're essentially saying, yes, we generally dislike clutter but we're willing to make exceptions for clutter for speech that we think has special first amendment significance. >> that would not be our position. it's not content based in a constitutional sense for purposes of applying strict scrutiny, that the distinction is permissible here without relation to the content or in terms of favoring or cent corpsing surgeon viewpoints -- censoring certain viewpoints or ideas. >> and your trying to reduce our rules against discriminating on the basis of content to a rule against a viewpoint discrimination. i mean, ideological signs, that
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is a content category. and there's as much a first amendment right to give somebody directions as there is to speak about, about being green or whatever else. is there no first amendment right to give somebody directions? >> justice scalia, we would say that they perform different functions, certainly -- >> they sure do, but is there a first amendment right for these other messages or not? >> i think they would have a right to speak, and i think that they do have that right to speak and that intermediate scrutiny applies to regulations about how speech can be communicated as opposed what can be communicated. >> but you do say in your brief that the first amendment does not require directional signs, so they could be banned altogether. >> i think
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it's narrowly tailored, at least the intermediate scrutiny test in a jurisdiction -- >> well, that doesn't have words. i'll give you an example. 00:38:12 ? the law says no directional signs. that's the law. does that -- is -- does that offend the first amendment? >> i think that, well, instead of offend the first amendment, i think our position would be that it could survive that analysis. if i could return to justice kagan's question about the interest that is served, it's different. a directional sign, there needs to be more of them in order to direct travelers along a route, so that justifies a, perhaps a smaller size. there's no contention in the record, in fact, the court of appeals found that they function as intended. as far as the duration, there's no travelers going to an event that is not presently occurring.
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in fact, the town of gilbert expanded the time frame from two hours to 12 hours, and our question is whether or not that's something that implicates first amendment jurisprudence -- >> well, you say on suppose we're talking about the context of signs. you say, well, let's look to the purpose of forbidding any prohibition, and i guess it has to do with safety or beatification. >> yes. >> first question would be is there some category that you don't allow to put up signs? answer, no. everybody can put up signs. so what about applying strict scrutiny to that if you're going to distinguish on the basis of what the sign says you have to have an awfully good reason. if your decision is you can't
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put one up at all. you put 'em up, but you have content, all kinds of distinctions how, how long, etc. now, in respect to that maybe you should have more leeway. leeway depending upon the purpose of the sign. so if, for example, it's about an open air municipal movie, you could put up signs about movies. i don't know, you maybe have more leeway there. but still they're saying you'd flunk even that test here because there isn't really a very good reason at all in this case for making the sign smaller or for putting it there for such a short time. now, how do you react? so there are three parts. one, very tough if you're going to say you can't put it up at all. sometimes called strict scrutiny.
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two, somewhat more lenient if it gets up, but you're trying to distinguish among how and under what circumstances how long. and then, three, do you even satisfy that one? that's called time, place and manner, the second. >> okay. well, with respect to the first one, the interest most of the times in sign ordnance regulations as you have indicated is aesthetics and -- [inaudible] with respect to aesthetics, don't believe that that would meet the definition of a compelling interest so that it's automatically presumptively and conclusively unconstitutional if the strict scrutiny is applied and there's no compelling interest. with respect to the interests at stake here, we again believe that directional signs are functionally different from an
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ideological sign or even political signs, that the directional signs to not need to be larger and also that there are more of them. and so if there are more of them, the trade-off is -- at least the legislature this in could be -- in this town has decided that they need to be smaller because they need to guide travelers along a route. >> and political signs are there almost all year -- >> yeah -- or. >> on the rights-of-way when you talk about clutter? what if somebody doesn't like politics? he says politics is spinach. i want ideology. i would like ideological signs on the right-of-way. you say, i'm sorry, you're wrong. we think politics is more important. because were politicians. [laughter] and we're on the city council. >> i have two responses to that justice scalia. the first one is that there is a
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statute in arizona that this ordnance complies with in terms of the placement, the duration and the size of the political signs. so the town doesn't have any leeway in that because it needs to comply with the statute. >> does the state statute have the same size and duration? the state statute says you have to rely on political signs, but does it specify the size and the duration? >> yes, justice ginsburg, it does. >> so you're saying that the town ordnance just mirrors the state? >> yes, yes, it does. >> and do you have that state law? >> i do. it's section 16-1019. >> so your defense to a first amendment complaint is, what the state made me do it? [laughter] >> well, our defense -- well, in part, yes, because we need to comply with the statute, and it doesn't make sense that
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as a result all signs need to be, meet those provisions for purposes of preserving beauty, reducing clutter, so on and so forth. >> it makes a lot of sense if you believe in the first amendment. >> well -- >> if you believe that neither the state, nor the city is entitled to say politics is really 00:44:30 ? important. important. as opposed to music. >> the other conversation here, justice scalia, is that we're talking about public property. and one of the issues that has not been developed, certainly in the record in this at court, is the extent to which a government can select subject matter for what is a nontraditional public forum. so there are issues as well that would need to be developed a little further before any application of intermediate scrutiny we say could be continued.
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if the, if the court were to find problems with the ninth circuit's application of intermediate scrutiny, i think there'd still be some issues that would need to be developed on the public forum. >> you said -- [inaudible] not a traditional public forum? >> that is, certainly, gilbert's position. it was something that was argued in the ninth circuit. the ninth circuit did not resolve that issue. but i believe that would be a question of arizona law. but, again with, we have not developed that, and that issue has not been developed in this at this, in this court. and i think the reason is because the issue in this court is whether or not strict scrutiny applies. >> how do you justify the differing treatments of petitioner's sign on the one hand and the weekend builder event signs and homeowner association signs? homeowner association signs can
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be 80 square feet, and the petitioner's sign can be 6 square feet. >> the homeowners' signs are not really directional signs because they can only be within the residential community. they are not directing travelers off site in a generic sense to a location. there's also a ppermit requirement, and the other thing is that the 80 square feet is that's total sign area. that's not one sign. that's the total sign area you can have. >> has anyone ever been denied one of those permits? >> i don't know the answer to that question, your honor. >> suppose petitioners want to put up a sign that says we're having a church service at 10:00 on sunday morning. under your code when
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can they put that up and when do they have to take it down? >> 10 p.m., and they have to take it down, i believe it's an hour afterwards. >> so they can put it up after dark on saturday, and then they have to take it down within an hour after, when the commencement of the service? >> it's the end of the event. >> the end of the event. >> do you think that really gives them an opportunity to invite people -- >> the purpose of the signs is not supposed to be invitational it's supposed to be directional. if the event was occurring at 10:00 at night or 6:00 in the evening, it could be up in the day. if the event occurs all weekend long, it could be up all weekend long. it's tied to the event. so in that sense it absolutely serves its purpose for having on the 12 hours before, because if they want to invite members of the public to the services, they can and do have many other opportunities and alternatives including signage, including the ideological sign that they can use.
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>> so they could put up a, quote-unquote, ideological sign that says come to our service on sunday morning but no arrow, and then they put up another sign that says this is the arrow? or maybe they put up on the first sign come to our service on sunday morning. we can't the tell you now where it will be, because the town won't let us -- [laughter] but if you come, if you drive by here tomorrow morning -- [laughter] at a certain time you will see an arrow? >> the sign could say, your honor, where it is taking place. but if it is intending to guide travelers to that location, then it would need to comply with the provisions. >> what is the guidance? i'm looking at the -- [inaudible] sign on page 3 of the brief. it just has an arrow. it says the name of the elementary school, and then it
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has looks like a telephone number and an arrow. the arrow is the direction? >> yes, your honor. >> this is not as you described earlier turn left on main street, turn right on front street. >>s it is the same function as -- it is the same function as that. >> what is this about, this argument? i mean, you agree they can put up a big sign, can they put up a big sign, ideological sign saying come to the church service next tuesday, 4th and 8th streets, three blocks and right and two blocks left, all right? are or are you saying they can't say three blocks right and two blocks left? that's what this argument is about? >> that's what it comes down to. >> my goodness. [laughter] on that it does sound as if the town's being unreasonable, doesn't it? >> well, we would say that the sign has what this court has termed an incidental effect on the expression of the petitioners that, certainly they can have the ideological sign, the
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information they want to include. >> suppose we said this, that we're, in fact, the argument is of in this nature, in fact you can have a big sign and have everything on it except an arrow, and the purpose of the sign is, in fact, to tell people both what's happening and where, that there is no good under any test reason for requiring to have this little dingy thing. >> your honor, our response to that, your honor, is that the directional signs in order to work need to guyed travelers along -- guide travelers along a route, so there's going to be a whole lot of these signs in order for them to function as intended. it can be a mile away, it can be two miles away. is so having just one sign perhaps under the court's hypothetical, it seems rather silly. but if you're thinking about
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having a whole bunch of these signs over a long distance, then i think -- >> does good news church have a number of signs? just as illustration, how many signs do they have? >> i believe the number's 15 but i'm not 100% sure about that, your honor. i know that they have quite a few. >> you see that car when you -- can you see that sign at all when you pass -- >> i'm sorry, your honor? >> you see the sign at all when you pass in a moving car? >> yes. in fact, the test found that it functioned as intended, and there's no indication that it did not. so there's -- it seems to me that those are the kind of decisions as far as size, duration are ones that should be fodder of legislative deliberation, and as long as it meets the intermediate scrutiny test, it should -- >> whatever that is. whatever that is, right?
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>> well, the intermediate scrutiny test, i think, is if it's narrowly tailored and also if there are alternative modes of communication. but i think that applying strict scrutiny to these types of regulations will result in sign ordnances being struck down uniformly just about, and the only speech that will be allowed will be speech that is constitutionally required. everything else will not be. but i think the problem, if there is one that gilbert has gotten into, is that it allows a lot of speech that other ordnances might not in a lot of different formats. >> just again if i could understand, let's even assume that intermediate scrutiny applies and just focusing on this special provision for ideological speech which allows very large signs to stay up as long as possible, and you would say we're making that exception, if you will, to the general rule that there should not be clutter and there
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shouldn't be a lot of these signs because, why? >> because directional signs can -- >> no, no, no. i just asked you for the exemption for ideological signs, the especially generous provision for ideological signs. why do can ideological signs get such generous treatment? >> because to protect the first amendment right to speak. >> okay. so that is a content-based rationale. and that, you know, on one theory you lose regardless of what the standard of review is. >> if the -- >> you're not justifying it on the grounds of safety or on the grounds of clutter. you're saying this is a special kind of speech that we think there ought to be more of. >> with respect to the ideological sign? >> yes. >> yeah. the purpose of that is it is content neutral in terms of anything can be on that sign. >> no.
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that goes back to what justice scalia said. it's viewpoint-neutral. but, you know, it's content-based. and maybe you're just saying that we've run amok on this content-based distinction. and there would be an argument there, i think. but it is content-based to say what's ideology and what's not. >> and i would agree that that's what we're arguing, your honor. what we're saying is that the first amendment is, guards against the abridgment of speech. and having a rigid content definition to be the on/off scrutiny or intermediate scrutiny applies is not workable, does not achieve common sense results. it handicaps the legislatures and their ability to be flexible -- >> maybe you think that, but the guy who doesn't like politics and likes ideology doesn't think that. >> well -- >> so we're supposed to sit here and say, oh, political speech is the most valuable, and you can allow
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that, but ideological speech comes in a close second -- [laughter] and then what? then directional speech or whatever else? >> well -- >> i don't want to do that. i don't think you should want any governmental official, even a judge, to do stuff like that. >> your honor, i think for purposes of ruling in this case, i think the question is whether or not the temporary directional sign is subject to -- is content-based in a constitutional sense subject that it would be subject to strict scrutiny. we believe of that would be improper, we think that it would be against the jurisprudence -- >> it's content-based in a constitutional sense as opposed to content-based in a nonconstitutional sense. >> whether it puts the finger on a scale of ideas or viewpoints. whether the substance of it -- >> that's viewpoint, that's
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not content-based. you want to eliminate content-based as the criterium and make it -- >> no, your honor, that is not what we're advocating. we're advocating that if an ordnance does not -- if an ordnance addresses the function of a sign as opposed to the particular ideas or even the subject matter, then it would not be content-based for purposes of -- >> is there a difference between the function of the sign and the content of the sign? >> yes, your honor. >> i, frankly, can't grasp that. what is it? >> it depends -- >> doesn't its function depend upon its content? >> in a literal sense, yes. >> oh, i see. what sense are we talking here? >> well, both poetic -- [laughter] we think there needs to be a nuance as the federal government has indicated so that it guides -- the content test is a guide for courts to
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determine which level of scrutiny applies. and at some level if content is the on/off switch, then such distinctions as temporary and permanent, commercial and noncommercial, even on site and off site are going to be content, and we don't believe that in and of itself justifies strict scrutiny. thanks, your honor. >> thank you, counsel. mr. cortman, you have four minutes remaining. >> thank you, mr. chief justice. just a few quick points in response, if i may. clarification point on the state statute. first of all, when this case began, the state statute wasn't in effect, and political signs were actually allowed up for longer than the period of time when the state statute was enacted. it actually lessened that time so it's not the state's doing that the town decided to allow political signs in its right-of-way. but even with the state statute if the state has decided that its interest in free speech and political signs outweighs the interest in safety and aesthetics, then the town should
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basically adopt an ordnance that abides by that. and the simple way to do that is to treat it as a constitutional floor. if the state has decided that we're going to allow political signs up for that period of time -- and, by the way, the statute doesn't mention other signs, so it's not a restriction like this town code is. all it says is we've deemed it important enough for political signs to be up for -- >> just permissive for political signs. >> that's right. and so the response by the town is, okay, if that's the case and the state has decided that political signs outweigh our interests in safety and aesthetic, the way we deal with that is treating other similar signs the same. i think a couple other points, the noise ordnance is a perfect example whether it's the sign case or the kovacs case. this would be akin to allowing political speech to be much
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louder in decibels and for longer periods of time and someone on the corner inviting someone to church must be quieter and for less period of time. they are certainly important interests, safety and aesthetic, but as this court said in kerry v. brown and discovery network the content-based distinctions in the code bear no relationship to the government interest. the distinctions don't advance those interests. and as to being underinclusive i think it's similar to what this court found in discovery network when there the town wanted to prohibit 62 news racks and then allow 1500-2000 news racks to remain, this court said that was underinclusive and would fail just on that. here the town is allowing an unlimited number of political signs but then prohibiting just a few other signs. >> thank you. >> thank you council. the case is submitted. >> the case decided unanimously
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in favor of the church to keep its signs up. and that cities and towns cannot limit signs on the side of the road waste on what they say. the late -- it was a content-based restriction on the church's speech. a supreme court ruling today on whether raises away from farmers is unconstitutional. without giving them full payment is an illegal confiscation of property. we are still awaiting the health care subsidies, same-sex marriage and state redistricting that could be as early as monday which is the last day of the current court section. we will have live coverage on the c-span networks. ahead of the scene -- decision
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on gay marriage, glad is speaking at the national press club. we will take you there live on c-span two. also on c-span3 will be at the wilson center. at 12:30 p.m., we will be at the white house for the daily briefing with josh earnest is expected to answer questions about president obama's weekend podcast about race relations. >> tonight on the communicators joe barton on recent sec regulation rules and the issues of private security. >> you have the principle of whose information is it.
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is it automatically in the public domain because i choose to use a mobile app? they go into the cloud and all that, or cannot use it and still have a reasonable expectation of personal privacy? if you take the latter view that changes the way you regulate and the way you legislate. if you take the position that i am participating in the app and for going individual right to privacy, that >> tonight at eight eastern on the communicators on c-span2. >> congress is in session before the independence day.


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