[inaudible conversations] ladies and gentlemen, welcome to the Shakespeare Theater Company barred Association Annual dinner and mark trial. Before we begin the trial please take time to silence all Electronic Devices that may disrupt this evenings proceedings. Photography of the trial is strictly prohibited. Please join me in welcoming the chair of the barred association, abbe lowell. [applause] good evening. Thanks for joining us. The annual dinner and mark trial event by the Shakespeare Theater Company and barred association, Affinity Group of lawyers and those who support the community to bring the best we can to the stage, tonight after tonights performance is based on production of 1984 presented by the Shakespeare Theater Company a few short months ago which in turn is based on the 1949, that is right, 1949 book by George Orwell predicting what 1984 might look like. You all know the story very well, a countrys government vacuums up unanimous amount of data in the name of National Security, where countrys leader work hard to be scared and divided to prevent newcomers and serious opposition by among other techniques encouraging people to have daily sessions where they yell their anger and hate against anyone who disagrees with them and the opposition creates a sort of resistance by installing an offline communication system, not in the mainframe of the government to protect private communications. Maybe not so farfetched. At the conclusion of the argument you will serve as the jury and vote on the following questions. Given the context of war and the threat to National Security, should the oceania defendants be held liable for their treatment of Winston Smith in 1984. If you believe these officials should not be held liable please vote with the red token you were given for no. If you believe the oceania officials should be held liable, please Welcome Supreme Court marshall pamela malkin. [applause] please welcome to the stage abcaxvii from the law firm of arnold and porter. [applause] counsel for the respondent, the state of oceania, bob bauer. [applause] and members of the esteemed bench of the Supreme Court of oceania, supreme Justice Ruth Bader ginsburg, stephen breyer, patricia millett, and nina pillard. [applause] [applause] oh yea oh yea oh yea, the Supreme Court of oceania is now in session, please be seated. Welcome to 1984 as perceived by People Living in 2016. We will hear first from the petitioner represented by any jeffress. Thank you, your honor, may it please the court. My cocounsel and i represent our clients Winston Smith. Winston smith is not present this evening and we understand he may have been vaporized. Which goes straight to the first point of our argument. [laughter] there is a clear threat of irreparable injury in this case, which is why this court must join the state from the unlawful practices of big brother that president freeman promised to end. What injuries . Winston smith has already been wrongfully arrested, detained, interrogated and tortured and now possibly vaporized. Further, he, like all other citizens, are subject to the states constant unwarranted surveillance. As George Orwell wrote, a party number lives from birth to death under the i of the thoughtless. Estate of life in oceania is literally orwellian. The alleged National Security reasons for the states policies are vastly overblown. The state has not identified any concrete information collected through it in terms of surveillance that has been useful in defending National Security. To the contrary, so far this surveillance has only been used to ensure that oceania citizens are using the appropriate bathrooms. [laughter and applause] that is right, the state is surveilling its citizens solely to enforce the birth sex bathroom statute known by their acronym be sbs. How is the state conducting this surveillance . We understand the state has pushed malware to all cell phones, tablets and computers in oceania and has unfettered access to encrypted data and cameras on any device in oceania. These policies will not make oceania great again. [applause] which is what the thought police might claim. So the era of big brother is not over as president freeman has promised, which leads me to our second argument. The office is responsible before you move on, president freeman could be making a lot of money running casinos or reality tv programs, or giving private speeches to investment bankers. Instead, he cares enough to be our president devoted to taking care of the people. It seems pure conjecture that the thoughtful police would abuse the powers of observation they have only to keep us safe. He cares about one thing, his own power. Lets back up. Because you have introduced a threshold question, you have asked for sanctions to be set by this court for surreptitiously gaining access to your preliminary briefs. You did not identify what sections you sought and did not tell us what was in those briefs that you have explained. If you would respond to those, what do you now claim was in your prior briefs, we disclaim our prior briefs for Attorney Client privilege. We knew the state was monitoring our communications as we all know, we did not write anything that would be damaging because we know we live under constant surveillance but we moved perceptions because it is important for this court to acknowledge the state has abused its authority and the malware affecting all our devices is improper and must be enjoined. What do you see . We would like monetary damages and we would like to enjoin the state from further intrusive surveillance. One more preliminary question. I and all of my colleagues were appointed by president freeman, do you think you can gain impartial justice of this tribunal, or i understand president freeman is in his last term in office so would you move we order this proceeding in a van . That is an excellent question, your honor. That i had not thought of. Point brilliantly put. I am confident we can get a fair hearing from this bench. Approximately half of you previously worked for the aclu which is an affiliate of the oceania Civil Liberties union. We believe we could get a fair hearing. Only this court can protect the rights of Winston Smith and other citizens of oceania. You expressed concern about surveillance and its intrusion on your work and i wanted to assure you there will not be any cameras in the Supreme Court here. [applause] i want to ask you to focus on your argument about qualified immunity and a question that i think is key to this case. If maryman, double plus how could merryman establish . You dont speak newspeak . Is still enforced despite the laws that big brother has brought into play. No reasonable officer could have believed that it was lawful to subject Winston Smith to routine beatings and psychological torture. I really have a preliminary question here. How can you say that your clients faced a threat of irreparable harm . I mean, he cant even show standing. You read our claptrap decision. [laughter] your argument seems to rest on contingencies without any kind of risk that is certainly impending. Just because the state has surveillance powers to monitor every last communication of its subjects doesnt mean the government will actually use those powers. [laughter] your honor is correct that the court in the claptrap case [laughter] did find that the plaintiffs there had only a speculative claim of harm as a result of the governments surveillance practices. Here, however, Winston Smith can demonstrate that the government intends to inspect his cell phone and likely far worse, arrest, detain and torture him. Though it is worth noting that the dissenters in clapper were certainly correct, that the plaintiffs there were virtually certain to have their communications intercepted and monitored. But we need not rely on their consent because the majoritys ruling does not bind the court on these significantly very different facts. Are you asking us to intervene at the preliminary injunction stage . Why shouldnt we wait until a full record is developed at the permanent injunction stage . Why should we proceed on the skimpy record rather than everything you wanted to put in . Your honor, Winston Smith and the citizens of ocean on oceania need relief, and it must be done right away. We would note there is no National Security threat, as we have said. Big brother claims that war is peace when the fictitious war is merely a pretext to maintain the repressive social order and the partys grip on power. Dont you have a serious causationing problem that we need to establish a record for . Be i know in particular you argue in your brief that the parties system systematically destroyed and continuing with president freeman systematically destroyed the peoples capacity for independent analysis and critical thought. But as i think about causation, i wonder whether keeping up with the kardashians and other reality had already done that to us. [laughter] we are all suffering on a regular basis, your honor, thats a perfect example. [laughter] well [laughter] you know, theres a man who wrote about what you say was done, and that man was hamilton. And before i should say you get your way, i want to know what that man did say. [laughter] [applause] your honor [laughter] if hamilton were here, i know he would say that the defendants in this case, the thought police, should be held liable for their illegal mistreatment of Winston Smith. Our Founding Fathers would not have tolerated the abusive authorities that big brother has brought to the state of oceania. I dont know i have a question about the record in this case. Both sides have experience with rewriting history. The government, through its Truth Department, and thats where Winston Smith wrote, right . Rewriting history he wrote how can we have any confidence anything east side is telling us is true . Your honor, the court must be referring to double speak. [laughter] and oceanias slogan, war is peace, is premised on big brothers indoctrination of its citizens in double think which we are all suffering from. I also note that you [laughter] you rely on a case called ex parte merriman that was written by chief Justice Taney who also wrote the dred scott decision. [laughter] is he really a reliable source for liberties principles . We like the case because the plaintiff won. [laughter] [applause] that case was about suspension of the writ of habeas corpus . And why is it thats strictly academic in this case . Because whether its executive or the legislature, legislature in oceania is under the thumb of the executive. That is correct, your honor. And my opponent relies on the silence of congress as assent by congress, and we would argue that we cannot rely on congress to protect the rights of the citizens of oceania. Well, i would see that differently. I mean, hasnt congress effectively acquiesced in the unconstrained president ial powers that president freeman is exercising here . I mean, congress hasnt acted meaningfully in years. [laughter] [applause] in fact, the government leaders care so much for the peoples safety that they have almost nothing but safe seats left in congress. [laughter] that is exactly right, justice pillard, and that is exactly why we rely on this court for relief yeah, but those actions which you are complaining, so they happened 32 years ago. Are you discriminating against those with age . Isnt there a time when we turn the page . [laughter] [applause] [laughter] your honor, the thought police like all officials are presumed to have knowledge and respect for basic, unquestioned Constitutional Rights as set forth by our Founding Fathers to be free from unlawful arrest, detention and torture. Ms. Jeffers, i have another question which i will ask you in english. [laughter] a brief quote, nothing was illegal since there were no longer [inaudible] to quote from your brief. Doesnt that mean that no be law could have been clearly established . That is a concern that we have with the entire concept of qualified immunity in this case, your honor, is that there is no rule of law in a state like oceania. Again, we would submit that only this court can restore the rights of the citizens of oceania. So in conclusion, your honors, we insist that the defendants, the thought police, be held liable for their illegal mistreatment of Winston Smith. They must be held liable. No other outcome is consistent with the constitution, the vision of the Founding Fathers that Justice Breyer has so articulately quoted [laughter] and not some. And no other outcome is consistent with justice. I dont know, your whole argument seems premised on the idea that were in some kind of dystopian, Science Fiction be police state or something. [laughter] the scenario is 1984. [laughter] but youre asserting a privacy right x i checked and i checked, and your client is all over google and facebook and twitter and ins gram and snapchat and for this audience, linkedin. [laughter] [applause] and he even posted selfbyes with lebron james selfies with lebron james, is my understanding. [laughter] so what privacy right is left . Wouldnt you have to concede that apple, google and facebook know more about him than the state could ever learn . Your honor, that is an excellent point. Our client, however, did try to lead a private life and tried to have a relationship with a lover in the state that he was unable to have because of the states intrusionive surveillance. So there is privacy which he sought. And in addition, your honor, i would note that through the malware that the state has placed on all of our devices, its impossible to know whether all of the social media was truly originated by winston myth or had been placed Winston Smith or had been placed there by the ministry of truth for which he worked and for which he and others regularly used to transmit propaganda to support the states repressive regime. And i also noted that in your opponents brief they made some mention in footnote five of practices in Foreign Countries. But you didnt. You seem to focus only on domestic law. And are you aware that Justice Breyer just published a book called [laughter] american law and the new Global Reality . Are you disrespecting his views of the law . [laughter] i am aware of the book, your honor, and would never disrespect yeah, but did you read the book . [laughter] i bought the book. [laughter] ah, youre the one [laughter] i dont understand, i dont understand how you can [inaudible] given Winston Smiths own description of his condition after his reeducation by the state. He said, quote, that he, quote, logged big brother. But he understood that the party had helped him, quote, win the victory over himself. This seems to be a happy, content man. Whats he complaining about . Your honor, the state also argues that kin Winston Smiths argues that Winston Smiths problems are of his own making, that he is a victim of his own mine. Is someone paranoid if everybody truly is out to get him as the state clearly is in this case . This is the case for Winston Smith. He is the victim. The state criticizes his very thoughts. And how is the state aware of these private thoughts . Through its constant, unlawful, unrelenting surveillance, exactly the practice that smith challenges today. But precisely. We might as well dismiss now smiths case, if im understanding you correctly, which asserts a reasonable expectation of privacy. The essence of which is his unwillingness to show everything. So hasnt he effectively pled himself out of courtsome because an unwillingness to share everything via the iphone is contrary to the i patriot act. [laughter] he would not be showing everything through his iphone if the state did not have it infected by malware to make its every communication available to the state. But what about his facebook posts . Everythings out there, right . Why do you have what is your line about, between privacy of what youre sharing on social media and what you want to share with the state . Why cant the state find out too . In oceania, Winston Smith is not free to share his own posts because the thought police and the ministry of truth control everything. And i would like to reserve the remaining five minutes of my time for rebuttal, may it please the court. Thank you. Thank you, ms. Jeffress. [applause] and we will now hear from counsel for oceania, bob baur. Madam chief justice, and if as we strongly recommend it please the court [laughter] what then is this legal proceeding . Judges, counsel all over over te public except for the unfortunate who could not accept the ticket price. [laughter] all the world can see that this smith with his violent criminal history is now free to be a litigant, and this transition is the hallmark of a rule of law society. Petitioner claims he has been lawlessly tortured, but he grounds that in a record that is replete with paranoia. Its so 1984. Everybodys out to get him. State officials are whispering cryptically to him in hallways, and we say, oh, please. He also said that our Surveillance Program is sure to land him in prison, but how could he know t