D.C. Court of Appeals Oral Argument -May 8th, 2026

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[00:00:10]Good morning everyone. I just started the live streaming on YouTube. So I ask you that you keep your conversations to a whisper and also like to remind you on your audio devices and cell phones.

[00:00:25]Great start.

[00:01:19]You better take a month.

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[00:02:21]17.

[00:04:00]All persons have business before the honorable judges now presiding on the District Columbia Court of Appeals. draw near here and give your attention. God take his face and his honorable court.

[00:04:15]His arable court stands session. Please be seated and come to order.

[00:04:29]>> Good morning everybody and welcome to the District of Columbia Court of Appeals. We have one case on this morning's uh special sitting. Uh that is number 25 CV63 David Kurya versus Metropolitan African Methodist Episcopal Church. You're ready. Council, >> good morning. May it please the court.

[00:04:59]My name is Glenn Allen and I represent the appellent David Kurakosce. Uh, first of all, thank you for allowing us to have oral argument. I'd like to reserve, if I may, five minutes of my time for rebuttal.

[00:05:14]>> This case presents important and novel issues regarding the district's anti-SLAP statute.

[00:05:21]To see this, I would like briefly, if I may, to summarize the history and procedural posture of the case and then go into the issues that I think are of decisive importance.

[00:05:33]The core occurrence that um is at the center of this litigation is a regrettable incident in which certain persons, but not Mr. Kurakosi, jumped over a fence on the church's property and destroyed a Black Lives Matter sign.

[00:05:51]um that happened um in connection with that happened on the same day as the stop the steel the proTrump stop the steel rally on December 12th 2020.

[00:06:04]Um within 3 weeks the church filed its initial complaint that was beyond January 4th 2021.

[00:06:14]It did not name Mr. Kurosi.

[00:06:16]About a year later, it filed its first amended complaint adding some claims and defendants. And again, it didn't defend.

[00:06:24]It didn't name Mr. Kurakosi.

[00:06:27]In fact, it didn't name Mr. Kurakosi until its second amended complaint, which was filed in March of 2024, which was 3 years and 3 months after the incident that occurred on December 12th, 2020.

[00:06:44]uh this at the in connection with the stop the steel rally.

[00:06:49]Uh it is certainly our contention that the allegations regarding Mr. Kurakosi in that second amended complaint were insubstantial.

[00:06:59]On page 31 of my brief, I mentioned all the allegations in the complaint that do not relate to Mr. Kuroski. Um and there there were many. I will just if I may just briefly identify a couple of them.

[00:07:15]The uh a minute complaints begins with allegations of several alleged incidents involving individuals that occurred in 2019 in certain locations. No mention of Mr. Kurosi. It describes the chief planners of the December 12th, 2020 rally march. No mention of Mr. Kurosi.

[00:07:33]It alleges violent conduct toward BLM by Pravost. No mention of Mr. Kurosi. It describes profane and and violent statements directed at BLM supporters.

[00:07:44]No mention of Mr. Kuroski. And this goes on for pages and pages. When you strip away these allegations that are directed to other persons and you strip away the conclusory allegations, we submit that there are only four allegations regarding Mr. Kurakosi that support or they say support their claims.

[00:08:07]One is that he was a member of the Proud Boys.

[00:08:10]They describe the Proud Boys as a white supremacist organization.

[00:08:16]They however attach a document from the Proud Boys organizational documents in which it disclaims white supremacism.

[00:08:25]And my client David Kurakosini is of East Indian ancestry and he he does not identify as white and he rejects white supremacist. So, so that's the first point. They they allege that his membership in in Proud Boys is relevant to what I will tell you is the conspiracy claims. The second is that they took his deposition in December of 2023. And he he acknowledged that he he does not have a high opinion of Black Lives Matter. Um but he did not espouse violence. He disagrees with Black Lives Matter. he did not espouse violence toward them or or toward anyone else.

[00:09:05]And the third thing is they have many many photographs and many many videos right from the beginning and they have one of Mr. Kosi in the vicinity of the incident when it occurred. And um if you would like to see the particulars of that photograph, it's uh it's on page uh it's I think 101 paragraph um 126. I might have that backwards, but um but it will show you that Mr. Kurosi who's who's unmasked is standing in the area where the U I guess it's on um excuse me a minute it's on joint extract 166.

[00:09:53]He's standing in the area. He might be 10 or 20 feet away and he's unmasked. I I think it might be more helpful to the court if you would focus more specifically on sort of your legal arguments addressing Judge Kravitz's order.

[00:10:11]>> Well, I was hoping that that would setting I was setting the stage for that very thing.

[00:10:15]>> Thank you. And then we have you can assume that we've read all of the >> um so anyway given the obvious uh the obvious limitations issues and we feel the very weak allegations we filed a a motion that was a combined 12b6 and and anti-slap motion. Judge Kravitz denied it um in December and we're here now.

[00:10:42]Um, Judge Kravitz's rationale is is is can be described. I think it's on page 350 and I assume that you have that in front of you and read it. There's as the court knows there's two steps to the anti-SLAP statute. Um the first is the burden is on us to present a primapacia case that it uh it applies and if we meet that burden and the burden shifts to the church to show that they um can establish a likelihood of success. Judge Kravitz didn't mention didn't reach the second step. He he did hold that um we had not adequately invoked the first step of the uh anti-slap statute and on page u again joint extract 350 it's page four of his decision I think you can I think it's fair to say that it's a mixture of different rationally shifting away for a minute from judge Kravitz's thinking to your own could could you just help me uh uh on your theory about why it is you think at the first step your client's conduct is is covered. So you've made a primacial case. So uh I just situated in the definitional terms of the statute if you can help me here.

[00:11:59]>> What so the your the uh claim has to have arisen from the claims that you're uh contesting have to have arisen from an act in furtherance of the right of advocacy on an issue of public interest.

[00:12:11]That's a defined term under the statute.

[00:12:13]Can you tell me what part of the definition you believe uh best uh fits your situation?

[00:12:20]>> Um yes, section 165501.

[00:12:25]Um I would direct the court to u be any other expression or expressive conduct that involves petitioning the government or communicating views to members of the public in connection with an issue of public interest. Can I ask you do you think so um what what exact acts of expressive conduct do you rely on as bringing the claims under the coverage of the act?

[00:12:50]>> Well, it was the his attendance his participation in the stop the steel rally.

[00:12:54]>> You his you think the claims arise from his attendance?

[00:12:58]>> Do I think that >> in in in what sense of arise do you think I mean certainly his attendance is part of the evidence of the claims. Um uh is is that you think enough or do you think arise mean needs to be more than just that was part of the evidence of the claim >> that that is the issue which I I feel is fairly novel for this court. Um yes certainly again if you go back to what I our position is are the I should say that even though they alleged direct involvement I think a fair reading of the complaint is it's a conspiracy allegation right they have never alleged that Mr. Kurakosi jumped over the fence or that he destroyed. It's a conspiracy allegation. And how do they support that conspiracy allegation by the three things that I mentioned?

[00:13:48]>> One, he was >> and that's and that's that that's the evidence they use for their theory of vicarious liability. I get that. Yeah.

[00:13:54]Um, and is that what you think is I mean we we have in cases like Bronner, we've tried to draw a distinction between um uh evidence supporting a claim and conduct that goes to the you know sort of is the actis reuses or the elemental basis of the claim. And I'm just wondering how you think that distinction distinction fits in here in the context of vicarious liability which does seem somewhat novel.

[00:14:19]Well, I I I understand Bronner and I understand first of all in Bronner you made a general statement that it has to be a substantial nexus and then you particularized it by saying based on or an element of so if we start with the more general statement a substantial nexus I think that's more flexible about what what are what we have to demonstrate but even if we go down to the the level of element or based upon I I think we one should be careful given the purposes of the anti-slap act to not have too narrow a limit of of what element means. I mean element and you go back to law school they had the elements of you know a claim or reco claim or something but what what does element mean in this context as opposed to evidence? I mean what those three things that they propose to prove you can call them evidence but they're also I mean they go to the intent intent is an element of conspiracy how are they going to improve the element of conspiracy and they're going to do it with those three elements all of which we say are protected >> so let me give you a hypothetical I guess it's an unpleasant one but uh imagined that uh somebody decides to assassinate a public figure because of the beliefs that the public figure has >> and uh uh acts upon that plan.

[00:15:50]>> Uh would you call that expressive? Would you say and let's say there's a wrongful death action that's brought and then the the person who did that says I'm defending this is a this is a slap uh act and you know my conduct arose from expressive conduct cuz you know my motive was you know my beliefs of a various kind. Would you say that that's covered or not covered? Oh, it's not covered.

[00:16:15]>> And and uh although the beliefs of the person would be, you know, might well be something that would be proved up at trial. In other words, you know, part of the trial would be this person said a lot of things about, you know, hating the views of this particular public official. So part of the proof of trial would be expressive conduct and you would say still not covered because the actual conduct itself is not expressive.

[00:16:38]Is that right or not right? Am I understanding your position or not?

[00:16:42]Well, you I I hope I'm not awaiting your question. If I am, I'll come back. But I I I feel that it's relevant here to discuss the flatly exception. I mean, if if someone it commits an illegal act that is not covered. It's not the first amendment doesn't protect violence. The question is whether >> Oh, I mean, flatly is a a California case, so whether it applies here or not, I guess, is a is is a question. So, let me I want to make sure I pin down what you just said. You uh acknowledge that if uh the alleged conduct is il illegal, do you mean criminally illegal or do you mean illegal also in the sense that it's contrary to principles of civil law?

[00:17:26]>> Well, I I I I mean if it's unprotected, it could be illegal or it could be unlawful. It could be unprotected in other ways. where in the I mean I I I I I take your current concession that the statute doesn't apply in settings like that. Um but can you tell me why leaving me aside flatly which is you know interpreting uh differently worded California statute like where in our statute do you think there is a requirement at the first step of the applicability of the the the anti-slap act that the conduct not have been illegal in some sense? Where do where do you find that in the text of the statute? Or do you think it's uh kind of uh inferable?

[00:18:04]>> Well, I I I I guess I thought it was self-evident from first amendment doctrine, which is >> I think that goes to what seems to be a a thread through or theme through your argument, which is that the anti-slap act is somehow co-extensive with the first amendment. And I just don't think there's any real support for that. Now, it might be that certain First Amendment principles apply and maybe that's what you're saying.

[00:18:31]>> Um, and there is some, you know, there's some kind of common sense appeal to that argument for sure. Although Judge Mccle is trying to get at something more specific based on the language of the statute. But I want to mention two things if I may, Mr. Allen. You said before in in answer to the question, what was the expressive conduct here?

[00:18:51]And you said it was the attendance of the stop the steel >> Yeah.

[00:18:56]>> rally.

[00:18:57]>> But the complaint is not about the stop the steel rally, right? It's about what happened that night in the so-called night march which included acts of violence against black churches and black people. Right? It's not about whether or not Mr. Kurakos attended the stop the steel rally. Now again, how are they how are they going to prove their conspiracy allegation? They're going to prove it by showing he was there. They have there that night when acts of violence were taking place >> uh according to the complaint pursuant to agreement among people to come out that night and in fact engage in acts of violence, not go protest the election and show support for for Trump. Well, they don't say that about Mr. Kurosi.

[00:19:48]Again, they took their pre-existing complaints and just after the limitations, three of and just pasted over a layer with regard to Mr. Kurakosi. They they have a lot of agreements about none of that has to is specific as to Mr. Kurakos.

[00:20:04]>> Well, the the counts in the complaint do uh make those allegations. I mean there's like two different you know there's kind of some factual allegations at the front >> with and there's a lot of just generally about the Proud Boys and obviously other people because it's based on the >> initial complaint but the counts themselves do mention Mr. Kurosi by name and do >> implicate him in all of those actions.

[00:20:30]>> Um but I also wanted to ask you a question going back to the statutory language. You you mentioned that what would what gives you coverage here under B I'm I'm the expressive conduct uh one one B but I had a question about the definition of issue of public interest.

[00:20:51]What is the issue of public interest that is at play here as defined in the statute?

[00:20:58]It it was a um issue of public interest and it's defined as the court knows means an issue related to health or safety environmental the district government or a public figure and certainly the stop the steel rally related to Mr. >> That's why I said this is not about the stop the steel rally. This is about acts of violence uh directed to expressing disagreement with the black lives.

[00:21:28]>> Well, that's why I think that's why I think flatly is relevant. I mean, of what use is the anti- riot I mean the anti-SLAP statute. If all they have to do is alleged something, they've alleged what you allegations um should should not govern this. They they have they have not shown in accordance with the flatly standard incontrovertible evidence or a concession by him that he did a conspiracy.

[00:22:00]That that is another failing I I we assert of Judge Kravitz's opinion because he he simply says and again J 350 some of the claims are based on both theories of liability. The conduct alleged involved racially motivated acts of conspiracy, trespass and property discussion. These are not acts and furtherance of a right to advocacy. I think that if I'm corre understanding your honor, that's that's your point.

[00:22:24]But he's just taking their allegations with uncritically and I don't think that's a workable way for the anti-slap act to to operate. I I thought the way it worked was you take the allegations of the plaintiff and uh if the defendant wants to succeed on an anti-slap act motion, the defendant says those allegations actually fall within the scope of the anti-slap act and the burden is on the defendant who is trying to make that argument to make a primifica primmaaccia case that's true.

[00:22:59]Uh so I think it I mean the first step all the all the you know u before the burden falls on your client to make a primacia case of coverage of the anti-slap act all that your opponent has to do is allege or do you think there's something else that should had to happen?

[00:23:16]>> It depends on what what they're alleging. I mean, if they're alleging a conspiracy and we're denying a conspiracy, I I I think that they should their allegations should should not be sufficient. And if if the if they're alleging conspiracy that falls outside the >> Well, I I would have thought I mean, I I it just seems to add a more complicated burden shifting structure than already exists. I mean it it it seems as though I had thought that the way it worked is you take the complaint which is all that is just simply just allegations and if someone wants the benefit of the anti-SLAP acts procedural protections the burden is on them to say look at that complaint I'm going to make a primacial case that the conduct alleged in that complaint does not fall within the scope of the anti-slap act that there wouldn't be sort of a well but if it's conspiracy actually the plaintiff before you know before the defendant has to respond the plaintiff has to provide some additional information. I just I'm not sure where that would come from in the anti-Slap Acts. Well, again, I I I would I I realize that Flatly is not a a DC case, but it's the as your honor knows, the your court has often followed California cases, and I think it's dealing with a situation, the balancing my client's right to not be brought into some expensive and and long consuming litigation based simply on allegations.

[00:24:43]And see the reason part of the reason I I'm uncertain about flatly which seems like a mixed bag for you. In part it seems unhelpful to you and then in part it does have this somewhat confusing idea about indisputable allegations of illegality and the like. Part of the reason I'm unsure about whether it is germanine here is because with respect to expressive conduct the California statute has a different definition that I think creates problems of circularity that ours does not at least at least does not obviously do. So the California's definition of uh the California uh statute's definition of act and furtherance of as it relates to expressive conduct which is uh I don't know California civil procedure section 42516E4 if I'm uh oriented correctly uh says any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech you know the public interest like and it so it seems to require definitionally for you to you know for someone to get coverage with their conduct be in furtherance of a right that the person had and if it was illegal in some way that doesn't seem very well calculated to be in furtherance of the right so in California I can understand why they get you know seem to get tangled up in questions of illegality or legality early on at the first step of the process but our our statute isn't worded that way it doesn't with respect to what it requires is expressive conduct and then that's a question of what expressive conduct means relative to claim of right, but it's just a differently worded statute and I'm selfsure that we should be taking flatly with in some ways help for you and in some ways problems posed for you uh and bringing it into this case.

[00:26:20]>> Well, your honor, if I might ask, I mean, is it your position it's enough for them simply to allege um a conspiracy and and we are >> I don't have a position. I'm just asking you some questions.

[00:26:34]>> I understand. Okay. I understand. But I'm trying to work through your interpretation or your concern about this that simply their allegations take they win the day. I I I don't >> winning the day again and I'll tell you the the line of thinking that I'm asking about which is definitely not my position but the line of thinking I'm asking about is one could look at the DC statute and say the illegality at the front end has nothing to do with anything. What the issue is whether there is expressive conduct that uh is on a matter of u um uh public interest.

[00:27:12]Uh get back to the DC statute. Um the latter of those I don't understand to be kind of uh briefed or contested in this case. So really it's a question of whether this was expressive whether it arises from an act that is that that uh involves expressive conduct in the relevant way.

[00:27:27]>> So the question is whether it's expressive conduct. There is a you know there's a definition. It's a first amendment concept. There's a definition of it in first amendment law that is conduct that expresses uh views and would be understood to express views. Uh your client would have the burden just on mere allegation. If your client wanted to say that your conduct fell within the scope of the statute, your client would have the burden of it making a prime official case that your conduct um back to the DC statute uh well that the claim arises from uh an act from expressive conduct that involve communicating views to members of the public in connection with an issue of public interest. And it could be an illegal act. It could be a legal act. It wouldn't matter. um for your client to be able to bring or a client in your client a defendant in your client situation to be able to bring themselves with the coverage of the act. You just wouldn't get into this whole set of questions about illegality. But yes, I the line of thinking would be uh there's no burden on the plaintiff other than to allege claims and then if a defendant wants coverage, the defendant has to say, well, look, those claims arise from an act that meets the definition of the statute. That's that's the line of thinking that I'm asking about.

[00:28:43]>> I understand. Now, I hope I'm not being repetitive and I hope I'm not being unresponsive.

[00:28:49]Our basic position is Mr. Kurosi came to the stop to steal rally to support his position that Mr. Trump had been improperly taken away from the election. That certainly is expressive conduct to to show up at a rally and carry a sign as many did. That is expressive conduct.

[00:29:13]So I I feel we have identified >> that is not the expressive conduct that is at issue in this complaint is it? I mean, I I don't want I know that I've heard you make that statement, but I want to make sure that we engage because it's what we have to decide is whether what's in this complaint is the kind of expressive conduct that is covered by the anti-slap act. And the expressive conduct that you would have to be argued is covered is the conduct as alleged of going to the church or engaging in a conspiracy with others to go into the church onto church property, take the sign and destroy it.

[00:30:00]>> Okay, >> that that would have to be the expressive conduct here.

[00:30:04]>> With with all respect, Mr. Shakurosi didn't do any of those things and he's not defending those things >> conspiracy with others who did that and and then there's a question of proof >> and you know it may not work but that's another issue because we are at the motion to dismiss stage we look at the complaint and the allegations and we have rules as to how we're supposed to view allegations in a complaint. Right.

[00:30:31]Well, I mean, if you're talking about 12 B6, but I I think it's a little different, but okay. I I agree.

[00:30:37]>> But I just want to focus on what the expressive conduct here is that you would have to argue is covered, and it's not attending the Stop the Steel rally during the day. It's the conduct that you would have to argue was expressive in nature uh that occurred that evening in connection with the destruction of the BLM sign at the church.

[00:31:03]>> As I mentioned, there are really three aspects of what when you when you trim down this complaint, how are they going to prove that conspiracy the and >> that's another question. I don't know how they're going to prove it, but we're not at the proof stage. Now maybe you're making an argument and I wanted to I'm sorry to ask Earl so many questions at you at the same time which is we do look at al allegations all we have at this point are allegations right and it's a primmaaccia case now it's a primmaaccia case that has to be um evaluated against statutory standards right but are you saying that the allegations themselves are insufficient Yes, they're insufficient because they're based on protected acts >> under Okay, I was about to say I >> Were you saying that they were insufficient underbol kind of thing because they're not sufficiently specific or No, you're saying that they're insufficient because they are protected first amendment activity.

[00:32:05]>> Well, they are protected. I I understand >> it seems like a separate constitutional I mean you might have a first amendment challenge to this to some of these counts but I'm not sure that's the same thing as whether you have a successful anti-slap act claim >> as I mentioned there there's another thing that they rely on they they took his deposition and they asked him what do you think of black lives matter he said I don't like them something like that then they put that in a complaint. This is evidence that he had the intent of conspiracy.

[00:32:40]So, let let's just set aside what I also think is protected, which is why he was even there. But let's just say the only thing they the only evidence that they're going to follow is we took your deposition. You said you don't like Black Lives Matter and you were 20 ft away and it happened. I mean, is is he stuck with their allegation or can he say whoa? I mean >> you >> mean it's step one of the anti-SLAP act analysis or do you mean for the entirety of the litigation?

[00:33:10]>> No, the step one whether >> I mean that that that >> Can I ask you uh I I just I think it might be helpful. I just want to make sure I I know your principal point if if the question is uh what exact conduct are you relying on as the expressive conduct that is the basis for your step one uh uh anti-slap act argument and you've you mostly have focused on presence at the stop the steel rally. Um, I just want to make sure is that is is that the only expressive conduct you're relying on? I I want to make sure I have the whole universe of what it is you think the expressive conduct is that uh brings your means that you have successfully made a primacia case uh an issue. So, stop the steel presence at the stop the steel rally is number one. What else?

[00:33:59]>> There's two others.

[00:34:00]>> Okay.

[00:34:00]>> And as I mentioned, when you glean through the complaint, it's essentially they're saying he was there and we talked about that.

[00:34:08]>> What do you mean by there?

[00:34:09]He was in the vicinity when these guys jumped over the fence. Not him, but they jumped over the fence.

[00:34:15]>> The second is he's a member of Proud Boys. And Proud Boys is a horrific. So his membership in Proud Boys and I I I guess I had assumed it was pretty self-evident that even if you're a member of a of a controversial organization, that should be pro protect I protected expressive conduct. Um and then the third thing is at the deposition he said I don't like. So we say all three of those are expressive conduct.

[00:34:43]>> Uh and do you think the claims arise from those three things? But it's I just make sure it's presence membership and proud boys and uh dislike of the uh Black Lives Matter movement.

[00:34:55]>> Black Lives Matter. That's right.

[00:34:58]>> I um I I I maybe I didn't spend enough time. I I I understand that the anti-slap act is not co-terminous with the first amendment but it certainly overlaps to a great extent. Um but I mean one a any written or oral statement made um in a place open to the public or public for in connection with an issue of public interest. I I would say um or we I'll go back to 1B then any expressive conduct in connection with an issue of public interest that his his membership in the Proud Boys would be expressive conduct in connection with the issue of public interest and so would his dislike of the Black Lives Matter. if he expresses his dislike of Black Lives Matter by taking the church's sign, this is a hypothetical, >> um the church's sign and rips it up and burns it as a way of expressing his dislike for Black Lives Matter movement.

[00:36:11]Do you think that that is expressive conduct covered by the Anti-Slab?

[00:36:17]>> Well, your honor, I do not.

[00:36:18]>> You do not. Okay. I'm not I'm not defending what happened.

[00:36:22]>> Can I ask you about point your your second and third items on the list of expressive conduct? Um the way uh um in order to it's not enough to for your client to prevail to to show if it were true that each one of those things was expressive conduct. But uh just focused on the second and the third. Um, do you think it's though either of those is expressive conduct that involves communicating views to members of the public? Like is your your private dislike of an organization or your membership in some organization in and of themselves? I'm not quite sure. I'm not quite sure whether those are expressive conduct just maybe they might be an interesting question, but are they it was that expressive conduct that involved communicating views to members of the public? Those two things.

[00:37:16]Well, I I would think that if you're a member of a controversial organization whose views are open to the public that that membership in itself is communicates those views. I mean, if I say I'm a I'm a stalwart Republican, I I think it's expressive conduct, but it implies that I agree with whatever it is that the Republican party agrees with.

[00:37:39]>> Sure. Sure, that's an inevitable inference that membership in a group means uh uh complete agreement with every view that the that the organization holds. But I thought that was part of your point about you're absolutely right relationship.

[00:37:51]>> Absolutely right. I I invoked Supreme Court precedents that say you just your membership does not mean >> that you agree 100% with everything and and that's Kishian or something. But it it does mean something. I I mean there's a something left. It's not a 100% endorsement of the views of your group, but it's it's it does say something. So I I think it does meet the threshold of expressive conduct just by being a member. Um >> why would one want to go I mean you have kind of separate first amendment protection of the right of association. Uh I'm just trying to think of kind of your point that there's an overlap with the first amendment here.

[00:38:34]Why would you want to that? The fact that you belong to an association even granted that you don't necessarily that doesn't necessarily mean that you espouse or yourself believe all of its whatever everything that it says is still somewhat expressive in nature as opposed to just a I don't know a statement of affiliation.

[00:39:02]I mean, I take what you're saying in a common sense point of view. You know, oh, one only affiliates if there's some some ground of uh, you know, some common ground, right?

[00:39:14]But, um, not sure it really comes within this expressive conduct um or or the the intended reach of the statute.

[00:39:24]I I know and I appreciate we're just exploring and you guys you are not your honors are not taking a position but it would be a very narrow interpretation and I I think kind of unique among the anti-slap statutes which are now in 40 states I think to say that explicit membership in a controversial organization is not protected under the anti-slap statute. I mean I don't know what under that interpretation would need to do. What do you need to you know wear a badge or something or or march around with a flag or something? I I would so just uh again give a hypothetical back to the unpleasant scenario of assassination. Imagine that uh the uh a uh defendant is you know the defendant in a wrongful death action and assassinated a public figure um because the defendant did not like the views of that public figure and it is also the case but you know at the time of the assassination the defendant didn't say anything about that the defendant just committed the assassination and imagine though that the defendant also belongs to an organization that uh has expressed hostility to the views of that public figure.

[00:40:44]>> Um and part of the government part of the plaintiff's uh proof is going to be and part of what's alleged in the complaint is that as a motive like this person committed this caused this wrongful death for this reason, this motive and part of our evidence is this person belonged to group belonged to a group that uh you know uh doesn't didn't like that person had different views than that person.

[00:41:06]Would you say that that wrongful death action is a is an anti-SLAP act action because part of the proof of motive would be membership in a in an organization that had disagreement with or hostility towards the the person who was killed?

[00:41:22]>> I would not. And um I I understand your honor is a little hesitant about invocation of California cases but in in fact in some of the cases cited by um the church there's and I know there are many California cases but they use the grain if I pronounce it correctly.

[00:41:47]I mean, well, so let me just change, sorry to interrupt your change of thinking, but let me just to to to address where I think you may be headed, change the hypothetical to a less unpleasant one where the offensive issue is trespass and where the defendant uh is denying that the trespass occurred. So, in other words, the plaintiff is sued and said, "You trespassed and I'm going to prove that you trespassed as part of because you hate my organization and you were trying to interfere with his operations and the defendant says, "I never trespassed at all." Would you think that action is an anti-slap kind of action?

[00:42:22]uh if part of what the part of what the trespass plaintif says is uh part of the way I'm going to prove that you did trespass and your reason for doing so is that you hate my organization and part of my proof of that is that you belong to another organization that hates my organization. Would you think that's an anti-slapback kind of action or not?

[00:42:41]I it behooves me to be cautious about agreeing to hypotheticals, but I from what you've described, I I think Anti-Slap Act would not protect that. U I mean, judges are called upon often to draw distinctions. I understand it's it's difficult. I I think the where the California cases are going and I mentioned the grain, it's kind of what is the thrust?

[00:43:08]What is the largest part of the interplay between protected acts and and Iran in in what you described of someone being a member of a group that expressed hostilities towards someone who then got assassinated?

[00:43:26]I I I think we would say well the the gra of that is the assassination. That makes sense.

[00:43:33]And if it's however if it's kind of tangential to it I I I I it doesn't meet the standard.

[00:43:41]>> Can I can I ask you though you you your your argument seems to be that if if we apply this doctrinal solution that the California cases have applied that you would win. Um and that you know do you are you saying that we are in some way required or like almost constitutionally compelled to have you know to take the California approach based on our statute or and if that's so h what do you do with Bronner which is you know in the neighborhood and has already sort of taken a stand on some of these questions. I don't read Bronner as addressing those particular circumstances of whether pure allegations are sufficient and and and our goose is cooked if they make those allegations.

[00:44:26]We can't we can't invoke the statute. I I don't feel Bronner it has stated some general principles and and in in that case it was a restrictive result but has stated some general principles that there has to be a substantial nexus and then it particularized it to some degree and said it had to be an element and it had to um had to be based upon. But I I think one angle of approach is to say if you agree with me that all three of the instances I described are protective acts or maybe only two of them. If you pull those out of there, what is the support for their conspiracy? the and that's why I think the the groman the thrust of this is based on protective acts and in these instances where the protective act is secondary or tangential or I I think again you have to rely on the courts to to to draw some >> Is that something Mr. Alan, if we were to agree with you >> that you meet um uh step one that you >> show you made your primmaacia case, right?

[00:45:45]>> What then? Do we send this back? Because isn't that the that's the last question you asked? Isn't that a what I'll call a step two question?

[00:45:52]>> It is. Well, I I I think so, but >> it is. In other words, that's when the burden shifts.

[00:46:00]>> Yes. to the plaintiff and they have to show that there's an >> likelihood of success.

[00:46:06]>> Likelihood of success and the merits, right?

[00:46:08]>> Yeah.

[00:46:09]>> Um so that's then when we get to okay, show us where's the beef, right? Show show us what you have.

[00:46:16]>> Yeah.

[00:46:16]>> To support this, but that's not something we need or is that something we need to address at this stage looking at step one >> and then the further question where does step two take place?

[00:46:31]Um I I'm not trying to be evasive. I might not have understood the first part. I can I I can easily answer the second part because I thought about >> I I understand in in Bronner and other cases the court when the court below didn't address the second. It said you know we're going to remand this. We want to see what the trial court does.

[00:46:55]I would hope that this court has discretion not to do that. I the purpose of the anti-slap statute is expeditious and economical resolution of cases that that do fall within it. Um all the issues that are going to come up in the second stage are really questions of law.

[00:47:15]I mean we're going to send it back to that court. They're going to make a decision. We're going to be back up here. I don't know any reason. And I I'll just give you one example.

[00:47:24]Their um second amendment complaint includes a a claim under the face act, the free access to clinic entrances.

[00:47:36]It's a act about abortion access and they found some language in there.

[00:47:42]No court has ever allowed a conspiracy allegation based on that. It's a federal case, a federal and and and for the District of Columbia to add to broaden that the reach of that statute, I I think is just manifestly wrong. So, I I don't see any reason now why that claim should be sent back to the trial court and then back up here. It it's clearly wrong. We feel the same way about the limitations, of course, and I I understand limitations are usually a factual question, but my gosh, I mean, three years and three months, two of those claims are one-year statutes. They waited three years and three months to sue Mr. Kurakosi, and they had all these videos of him and and he was unmasked. I I don't think >> I think we we get your argument, Mr. Allen, and we'll give you a couple minutes on rebuttal. Okay, let's hear from Mr. Appreciate Good morning, your honors. May I please the court Brockman on behalf of Metropolitan AM Church, which I'll refer to as Metro AM or the church for convenience throughout my argument today.

[00:49:11]The order denying Mr. Kura Kos's anti-slab motion to dismiss should be affirmed because the superior court correctly held that none of the church's claims arises from any acts in furtherance of a right to advocacy on issues of public interest. I think it's important not to lose sight of what this case is about and this goes to a number of the questions that your honors were asking my friend Mr. Allen during his argument.

[00:49:40]The church did not sue Mr. Curry Jose because he identifies himself as a proud boy. It did not sue him because he attended a stop the steel rally in support of President Trump. It did not sue him because he believes that racial discrimination is okay. It sued him because he was a member of a mob that conspired and did trespass on the church's property, attack the church, seize and destroy the church's property.

[00:50:11]all to terrorize members of the church.

[00:50:13]>> Can I ask you to be concrete? Let's take one of the claims like trespass and I just want to make sure what so the language in Bronner in defining what arises from means uh says says based upon and and also refers to elements but do you do you think uh I just like for the trespass claim what do you think your claim is based on? Obviously it's based on the actions in part on actions of people who are not Mr. Kuros who were the ones who actually destroyed the entered onto the church's property and I I take it there's no allegation that Mr. Kurakos himself entered onto church property.

[00:50:47]>> It's correct. Um so but it's not your claim against Mr. Courier Cos is not based only on that because you need to have it needs to be based on something else to hold him liable. What do you understand it to be based on with respect to holding him vicariously liable? I you said something that started touching on it. I think the way the complaint seems to read it is that he in advance like before the march even happened, he agreed with the other members of the Proud Boys to engage in acts of, you know, uh uh uh violence and destruction of property based on uh racial hatred. I mean, that's I think maybe a fair summary of the allegations in the complaint.

[00:51:30]>> I'm not sure that I would do better if I tried to resummize them. That's correct.

[00:51:33]And uh so you you would agree that your uh claim against Mr. Courier Cosce is based on his agreement with others to go out and in public uh commit uh acts of uh you know destruction of property and other unlawful acts based on racial hatred. Certainly as to the trespass I think that's a fair statement of >> why uh if your claim is based on that why is that conduct not expressive conduct within the meaning of uh within the meaning of the first part of the anti-slap act. Where does it where does it go wrong? because the underlying conduct that caused the harm to the church that is the basis for the injury is the trespass is the destruction of property is the conspiracy to engage in those attacks. I mean, the agreement is a kind of conduct and so and that agreement uh is I I mean I don't know if it's a but for cause that might get wrapped around to the 1986 piece of the case if we ever were to get there but uh uh where in the statute do you think or in Bronner do you draw this distinction between being based on it what what based on excludes uh circumstances that are part of the predicate for vicarious liability, but we're not the direct Actis Reyes that in the short run uh inflicted the injury.

[00:52:58]That seems to be maybe the distinction you're drawing. And I'm just wondering >> if you find it in Bronner or if you don't find it in Bronner, why you think we should put it into the statute or interpret the statute as containing it.

[00:53:08]I don't mean to to be contentious about the way I frame it.

[00:53:11]>> Not at all, your honor. And I want to be sure that I have your question correctly. I I think at least as I understand Mr. Allen's argument or Mr. Peri Kos's argument, as long as there was some associational conduct, some expressive conduct that happened earlier in the day that is part of the backdrop of what happened that night, then the claim arises from expressive conduct.

[00:53:35]get that that would be hard to square with Bronner what I'm I guess you know so I'm with you that far but that's not you know I think it's a different question if you're it is uh an essential component of your uh theory upon which you are bringing a claim against Mr. Curios is that he enga that he entered into an agreement to u uh uh commit offenses like this out of racial uh hatred. Um I'm just not quite sure why that isn't expressive conduct. And you said you were drawing a distinction, I thought, between the acts on the day of that directly inflicted injury and other things that your claim is based on, not mere evidence of it, but you were acknowledging your claim is based on it.

[00:54:19]It's not just sort of evidence. Or maybe you're wrapping back around to evidence.

[00:54:22]I'm not sure. But I I'm not, you know, pointing out that uh your opponent's argument is broader than this topic is fair enough, but I don't know that it helps really zero in on why we should draw a line that would exclude as expressive conduct what at least initially you were saying your claim is based on. So I if if I understand the question, I understand you to be asking is the fact of entering into a conspiracy to engage in violent trespass, violent destruction of property expressive conduct that is protected by the anti-Slap Act. And our answer to that would be >> yeah not quite. I I mean not quite although that's that's a fair question.

[00:55:02]My question is a little bit different which is where a claim rests on that and the fact that pursuant to the con the alleged fact that pursuant to the conspiracy uh uh expressive conduct uh unlawful in character undisputedly unlawful in character but arguably expressive conduct uh occurred. So, it's not I mean I'm not sure you take each piece in isolation and say uh is it expressive conduct? You know, is it is your claim based on it in isolation and does it meet all the requirements or whether you add the pieces together. I just flag that as an additional complication. But if you take it by itself, yes, it is a fair question that I'm trying to pose. Uh if you don't think that's expressive, that your claim arises from in part at least that expressive conduct or that it's not expressive conduct, I'm not sure why.

[00:55:49]So, if you could tell me why you think that. So perhaps I should clarify my prior answer. The claims here do not arise out of the fact that Mr. Kura is opposed to Black Lives Matter.

[00:56:01]>> For sure that's true. That's a different issue than that he agreed. What is alleged is that he entered into an unlawful agreement for people to go commit acts of uh you know racial violence and the like. So when you shift back to the broader theory, I'm with you, but I'm not sure it it it will get you all the way home. So I just want to keep flagging that problem.

[00:56:22]>> Sure. So I I think the reason that we get home is because engaging in acts of violence and destruction of property and trespass on private property, regardless of whether they're for political purposes, is not expressive conduct within the definition under the act.

[00:56:39]It's not >> Why do you base that on?

[00:56:41]>> Sure. Because it's not expressing views to members of the public in connection with an interest of public interest.

[00:56:48]violence, unlawful violence, trespassing on to private property, destroying private property, um is not in our understanding of the act, communicating something on an issue of public interest. I think this would be a hypothetical. You're saying that uh um I mean the case would be a lot simpler if that if that's the right way reading the statute. The idea would be that the allegation here is that this was uh a crime and uh unless the defendant can make a primacicia case that he didn't commit that crime, he's not covered by the statute and he'd have to do other things too, but it's a part of his job to have a primacicia case that it wasn't criminal in character. And I So you think that uh uh if there if trespassing occurs during unlawful picketing or dur during during during picketing that it just definitionally I mean you you can never have an anti-slap act defense to trespass because trespass is a crime and the trespass component of it can't be viewed as expressive because it's criminal. That is that is that is that the line of thinking?

[00:57:54]>> I don't think that's quite the argument your honor. If I could if I could postulate a hypothetical I was thinking about this morning um in in trying to draw appropriate lines in this case. I think this would be a much more difficult case if members of any group, but take the Proud Boys in this case, had brought their own Black Lives Matter sign outside the church, burned it, sort of something closer to a Texas Against Johnson type of case where they were making an expressive act of uh of of opposition to Black Lives Matter, but the but the conduct did not involve tort conduct. or whether that be a case at all, like what would what would the what would the suit be?

[00:58:39]>> So, you could imagine, for example, that the church might bring a claim for intentional infliction of emotional distress, something else that injured the the uh parishioners because they witnessed this from inside the church, that it inhibited their right to worship in some way. I think that would be a much closer and much more difficult.

[00:58:57]>> And actually though, is it your view uh that it's not possible to have a an anti-slap defense to a claim of trespass because of the nature because you know trespass doesn't have a communicative component in it in the way that intentional infliction of emotional distress may because of the you know the message that's being composed. I mean that was a theory around I think about anti-SLAP statutes. they should be limited to defamation or other claims that are communic that where the the elements of the offense have a communicative component to them. But I hadn't understood that to be either the way our statute is worded or the way that most of them have been understood.

[00:59:38]So your honor, I'm thinking of um a hypothetical that was included in the ACLU's amicus brief in Sanz um that actually goes directly to this point.

[00:59:48]And there was the hypothetical of well it's conceivable that you might have some kind of an organized form of trespass for the purpose of making a political point. And the hypothetical was if you're protesting against uh perceived injustices against Native Americans by saying this is stolen land, so we're going to make a symbolic act of trespassing on it to point out that this is stolen land. And that act of trespassing is intrinsically wrapped up with the expressive component of the act.

[01:00:26]I think that's another much closer hypothetical. I wouldn't concede that that would necessarily be subject to the NISLAB statute here, but that's not what happened.

[01:00:35]>> I just to say if you you say that that's a closer case, what in the statutory language would lead you to think that it's not obviously a case that is covered at the first step. There'd be a question about whether it wasn't like where does it which of the phrases do you think it runs a foul of that hypothetical or at least arguably runs a foul of? So I I think I think there would be a question about whether it would be obvious to an observer that that expressive conduct was being communicated by the act of trespassing.

[01:01:00]I think if we go back to O'Brien and we think about some of the supreme >> I get that line of thought but assume for a moment that you're make your hypothetical so that it's clearly is in other words that they're carrying signs saying this is stolen land and we are free to walk upon it and then they do so that the communicative components of it were apparent at the time. Do you think there why why is that not an obvious case for coverage under the anti-SLAP act because all the relevant statutory terms seem to have been complied with unless you think uh there's all that communication is going on but it isn't part of the elements of trespass. You don't you you could actually try that case if you wanted to as the as the plaintiff without saying anything about any of that with you could you could try the case without mentioning any expressive component of anything. to say these people walked on my property and they weren't allowed to. Um uh so where in the what what would be the problem with the statuto language on that hypothetical?

[01:01:53]>> So I think under your hypothetical there would be two issues. One is that you've added a communicative aspect to the conduct the carrying of signs etc. Right? So that that I think helps bring it in the scope of the statute because you have people who are active >> and my question is why isn't it obviously within the scope of the statute? What's what's the possible impediment to that?

[01:02:13]>> So, I think the possible impediment is the counter hypothetical that I understood you to be posing at the end of your question, which is, could you bring a claim that excises the the communicative aspects of the conduct entirely and just says, "You trespassed on my property. You damaged my property.

[01:02:30]You caused harm to me."

[01:02:32]uh that claim I think under Bronner if you're asking um is the basis of the asserted cause of action is an element of the cause of action expressive conduct I think the answer under that hypothetical would be no and that's the same hypo that's the same is true here we have as elements of our claims that members of this mob trespass on the church's property >> I mean that suggests that the way it seems a a little counterintuitive that whether a claim is based on expressive conduct would depend either on the way the plaintiff chose to allege it or the that that would be dispositive or the proof the plaintiff chose to pick in order to prove it. And so let me ask a a question that might um bear on that topic which is do you uh there is a de I mean expressive conduct is not a defined term in the statute. uh I tend to infer that it is a uh concept borrowed from Supreme Court first amendment law. Um and it has an understanding there that I I my impression is that was along the lines of something I was paraphrasing which is you know conduct that was intended to express a message and would be understood as doing so. Do you agree that interpreting this statute we should interpret in expressive conduct by looking to Supreme Court case law about what that phrase means? A. and B, if so, do you have a different view about uh, you know, what the Supreme Court's case law about that would tell us about how to understand that phrase?

[01:04:07]>> So, I would be reluctant to import whole cloth, the Supreme Court first amendment case law on that point. And I see I'm out of time. May I finish?

[01:04:17]>> Um, for two reasons. One, as your honor pointed out um, during Mr. Allen's argument, the DC statute does not use or make reference to the term constitutional right in the definition expressive conduct. And in fact, the council adopted a recommendation from the ACLU to amend that portion of the statute to avoid having that sort of co-terminality with constitutional case law. And I think this court's cases, including Bronner and others, have made clear that the statute is not co-terminist with first amendment protections. So, I would be reluctant to import the First Amendment case law into the statute altogether given that the council seemed not to want to do that.

[01:05:00]Um, that having been said, um, I think the more natural reading of the statute, the one that aligns more closely with the surrounding terms, is that expressive conduct here would either need to be speech, actual speech, and several of this court's opinions, including Bronner and Sanmez, refer to speech, or it would need to be something that >> So, just to interrupt you on that, I mean, uh, 1A talks uh written or oral statements. And then 1B says any other expressive conduct. So I'm a little unsure why you think expressive conduct would apply to speech at all. I would have thought the structure of the statute is speech is up here and anything that isn't speech but is expressive conduct is in B. So I I I'm uh hung up on that piece of it. But >> I I think that's one way to read the distinction between this between the two provisions. The other way to read it is that the first provision is more specific as to subject matters. That's a thing that's going on too. But I the word other in be is what got me. Uh I mean I guess you other could be relative to the subject matter or relative to the mode of expression. Is that your point?

[01:06:10]I think I I think I follow the point you're making. I hadn't appreciated it, but I think I follow it now. Got it.

[01:06:14]>> And I think just >> and I and I interrupted you because you were going to say two things and the first was about speech as part of it and you've persuaded me that uh my first concern about that was not a good one.

[01:06:24]So, I want to get you back on your second point >> and I and I'll I'll cut to the chase because I think it's it's the important line that that this case drives directly at, which is if the only requirement for expressive conduct is that someone viewing it would understand it as sending a message.

[01:06:43]If I go to a Make America Great rally and let's assume I'm opposed to the president's agenda and I have on a shirt that says something about I don't like MAGA and I just start punching people.

[01:06:58]That's conduct. That's me expressing my disagreement with the president's agenda with the views of the people at that rally. I don't think there's any world in which that kind of conduct is protected under the anti-slap statute. I don't think >> that's that's a fair point and a legitimate concern about a broad reading of that. I will say that it's it may be a bit of an overstatement to say protected by if in that hypothetical and many of the others that seem pretty unappetizing, uh the uh plaintiff would have little difficulty succeeding on step two. Um and so at the end of the day it wouldn't be protect it would be it wouldn't be protected in the sense of dismissed it might be protected in the sense of subject to uh somewhat favorable procedural uh mechanisms. Um but in your hypothetical I assume you would agree the plaintiff would have a pretty good uh uh uh playing field on step two of the uh analysis.

[01:07:58]>> Absolutely. but but shouldn't get to step two because it's that kind of violent conduct is not expressive.

[01:08:07]Bearing in mind that the point of the anti-slap statute is to protect people from meritless lawsuits that are meant to chill expression of particular ideas.

[01:08:17]The idea that we would that we would interpret the DCNI slap statute so expansively that it would protect violent trespass, violent destruction of private property just seems totally at odds with the purpose of the statute.

[01:08:32]And I think the court was at pains in both Bronner and Sonmez to say, look, we recognize that the anti-slap statute provides some tools to defendants, but they're not sledgehammers.

[01:08:45]they don't swing so broadly and so powerfully that anything that's tangentially related um to expressive conduct suddenly you now get to shift the burden at the very start of the case to the plainif to essentially pre-prove its case and I think >> so if we go back to the other hypothetical about so you talked about violence so what about the peaceful trespass peaceful protest that involves a trespass >> so I I certainly can see that would be a closer case um than this one is.

[01:09:19]>> So you're not saying that we should interpret um the statute in terms of uh step one as including only expressive conduct that is lawful.

[01:09:37]>> I don't read the statute as including that term. Um, >> but somehow you read it as excluding expressive conduct that is unlawful and violently so.

[01:09:50]>> Well, and I think this is perhaps the area where some of the background first amendment principles come into play.

[01:09:56]It's we take it for granted that violence is not protected by the first amendment. When you start to cross the line from expressive conduct, even if it's rockous, even if it's rowdy, when you start to cross the the line into violent conduct where you are transgressing onto private property, you're you're seizing and destroying private property. Um that that that is a distinction from the first amendment case law that we think >> I mean, I get that line of thinking in one respect, but it seems somewhat anothetical to other things that you were saying about I don't want you this legislation was intentionally and consciously not co-extensive with the First Amendment. And so I'm a little unsure about how where you think First Amendment concepts, though not directly applicable, should inform our interpretation of some terms, but not others. Um, it seemed like you were saying we shouldn't take First Amendment law willy-nilly about what expressive conduct means, but we should take First Amendment law about the general hostility to unlawful violence as a form of protected First Amendment activity.

[01:11:02]Is that it seems a little uh crosscutting? I'd say >> I I understand the point. I think I think that is a reasonable piece of first amendment doctrine to import here because of the overall purpose of the anti-slab statute. Being really concrete, you would say we should interpret, if we were going to draw that distinction, it would be located in the phrase expressive conduct. And we would say for purposes of this statute, expressive conduct may include nonviolent illegal conduct, but does not include violent illegal conduct.

[01:11:31]>> I don't think that's a case you have to decide on. I don't think that's an issue you have to decide on this case. But >> well, no, but I I mean if we're trying to apply a statute to a situation, uh I'm just trying to figure out what we would say our understanding is so we could then apply it. Um >> so our preferred outcome here and one that we think is fully consistent with Bronner and Sonmez is to say we look at the elements of the claims and we >> are based or what the claims are based on >> or what the claims are based on. We agree. Um, and you ask whether any of those elements require us to prove expressive conduct.

[01:12:12]The answer is no. For all of our claims, >> and the answer will always be no for trespass.

[01:12:24]>> I think that would be true in probably 99% of cases. I could imagine a scenario where there might be a dispute about and this might be a step two dispute about intent um that might require getting into if in other words if someone was in the act of marching and they unintentionally trespassed onto someone's property. There might be some interplay there. But I I do think in in the vast majority of cases a pure trespass claim would not be protected under the anti-slap statute.

[01:12:57]Um, Mr. Brockman, let me ask you, this is just at my own curiosity. It's not something that I think you really argued, but so we've talked a lot about what's expressive conduct under uh 1B, but I'm interested in this definition of issue of public interest and what is the issue of public interest in this case that falls within the statutory definition. There seems to be this kind of notion floating in the air that any issue that's of public interest is covered by the anti-slap act. Is that a correct um reading of this? I mean it's kind of specific. Health, safety, environment, economic or community well-being, the district govern a public figure or a good product or service in the marketplace. What? Where is this in there?

[01:13:52]>> I agree. It's not in that list. I'd certainly >> It's not at all in that list.

[01:13:57]>> I'm sorry.

[01:13:58]>> It's not You don't think it could be kind of shoehorn into community well-being? That's the only one I can think of as a possible candidate.

[01:14:05]>> I don't I don't think it could be.

[01:14:07]>> But have we ever addressed that or is anybody?

[01:14:11]>> Not to my knowledge in the cases. And you do agree that the trial court didn't rule on that basis and you haven't asked us to address that issue in the alternative.

[01:14:21]>> It's certainly not briefed on appeal.

[01:14:22]It's not in the trial court's order.

[01:14:26]>> It's just just a question.

[01:14:29]>> Thank you.

[01:14:31]>> If there are no further questions, I know I'm well over my time.

[01:14:35]>> Thank you very much. Yeah, >> Mr. Allen, we'll give you three minutes on rebuttal.

[01:14:44]Thank you your honor. I I think I won't take all three minutes unless you have some questions. But I I think the poloquy has particularized and crystallized that it's we one needs to be cautious about the definition of element or that's set forth in Bronner and I I don't think Bronner requires it. As I mentioned, it starts off with substantial nexus, but as your honor has indicated, I mean, what what is an element of trespass? I'm And what in fact is an element of conspiracy? I I just think those are somewhat rigid and artificial terms. And I I think it's I would go back to the substantial nexus. Um I I think in a hypothetical where someone had harsh feelings towards somebody and then they assassinated them and the argument that well they had critical views of Mr. So and so and then attempted to assassinate them. I don't think anybody would say there's a substantial nexus. I think there's room there to say no that that's not enough. But I think there was a substantial nexus in this case in that as I've said I think all the three which I think could be called elements or the basis for their conspiracy claim and that's a it is a conspiracy claim. I mean Mr. Kurosi did not trespass did not step and I did not destroy any property.

[01:16:17]All those things could be described as expressive conduct. Um I um Mr. >> the agreement or to which to a certain extent is being inferred from his affiliation or association with other prow members.

[01:16:36]>> That's what you're referring to as the uh expressive conduct. That that would be part of the proof of the agreement.

[01:16:43]It >> that's one way to look at it. It it's part of the >> I'm sorry. What's the other way? Well, that >> they what they have to prove is agreement, right?

[01:16:51]>> Yes.

[01:16:52]>> And aren't the membership and maybe being an affiliate of this was it Brad or somebody?

[01:17:01]>> Um, aren't those ways of going about proving the agreement? In other words, facts from which a jury could infer agreement?

[01:17:12]>> Well, again, it's you look at it from one aspect, it's evidence. It's proof.

[01:17:18]But what else is there for conspiracy? I mean, you have to prove an agreement and you can call it an element. I I would say, right? But I'm trying to make a distinction between the element of the count or of the of the of the charge here is not that he was a member of the Proud Boys, but that he entered into an agreement with others to engage in unlawful conduct.

[01:17:45]>> Yeah.

[01:17:45]>> Right.

[01:17:46]>> Correct. And the way in which that agreement is being proven or at this very early stage alleged >> is from these other facts >> membership uh position within the organization prior planning activities presence at the time >> all of those things right that's those are facts from which agreement and I guess accent furtherance of um could be proved.

[01:18:21]>> Yes. Well, again, I I think those facts serve a double purpose. I I mean they're evidence but they're I think they could be characterized as the basis of the claim because you take them away and the claim there is no basis of the claim >> and you take them away because >> because they're protected in in our >> because the fact of his membership is because his membership is protected activity.

[01:18:46]>> When I say take them away, I'm not suggesting that I mean maybe that's not an apt term. I'm saying they are protected and therefore they meet the requirements of substantial nexus and therefore the first step is satisfied.

[01:19:03]That's my >> I mean it the same case could be alleged right >> even if there were no organization called Proud Boys just if he had had these conversations with other people with whom he was just you know buddies.

[01:19:23]>> Oh gosh I some of these hypotheticals are difficult to to deal with but I I I see your point. I mean, if he was just talking to a buddy at a coffee store, I think that'd be a very weak claim that that was protected. But again, I I know we're trying to understand the interplay between the First Amendment and and uh this act, but the first amendment surely protects unpopular views. the broad boys had unpopular views and I think they are this conspiracy claim is being used to squatchch them and that's why I think the anti-slap act is appropriate. Yeah.

[01:20:09]>> Thank you very much. Thanks Mr. Allen and Mr. Brockton for your briefing and your arguments today and the case will be submitted.

[01:20:46]Dr. What is his way?