Ladies and gentlemen, welcome to the Shakespeare Company barred Associations Annual dinner and mock trial. Before we begin the trial please silence all Electronic Devices that may disrupt this evenings proceedings. Photography at tonight at trial is strictly prohibited. Please join me in welcoming chair of the barred association, abbe lowell. [applause] good evening. Thanks for joining us tonight at the annual dinner and mock trial presented by the Shakespeare Theater Company and the barred association, the Affinity Group of lawyers, those associated with the community and those who support the Legal Community to bring the best we can to the stage of this wonderful theater. As you know, tonights performance, tonight at trial is based on a production of 1984 that was presented by the Shakespeare Theater Company a few short months ago and which in turn is based on the 1949, thats right, 1949 book by George Orwell predicting what 1984 might look like. I know you all know the story very well. A completely the countrys government vacuums up enormous amounts of data about its citizens in the name of National Security, where a countrys leader worked hard to keep people scared and divided to prevent newcomers in 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. Where 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 tonights argument you will be asked to serve as the jewelry and vote on the following questions. Given the context of war and the threat to National Security. Should the oceania defendant in the Winston Smith lawsuit be held liable for the treatment of Winston Smith in 1984 . If you believe these officials should not be held liable please vote with a red token you were given for now. If you believe the oceania officials should be liable vote with a blue token for yes. I would now like to introduce to you and welcome tonights participants. Please join me in welcoming Supreme Court marshall pamela talkin. [applause] please welcome to the stage counsel to partition or Winston Smith, amy jeffress from the law firm arnold and palmer. [applause] now counsel for the respondents, the state of oceania, bob bauer of perkins to e. And of course the members of the esteemed bench of the Supreme Court of the state of oceania, sipping Court JusticeRuth Bader Ginsburg presiding, Justice Stephen breyer, patricia millett, judge cornelia pillard. [applause] [applause] be change oh yea oh yea oh yea, the Supreme Court of oceania is now in session, please be seated. Welcome to 1984 is perceived by People Living in 2016. We will hear first from the petitioner represented by amy jeffress. Thank you, your honor. May it please the court. My cocounsel, represent Winston Smith. Mister smith is not present this evening as we understand he may have been vaporized, which goes straight to the first point of our argument. There is a clear threat of iraq verbal irreparable injury in this case. Which is why this court must enjoin the state from the unlawful practices of big brother that president freeman promised to end. What injury . Winston smith has already been wrongfully arrested, detained, interrogated and tortured and now possibly vaporized. Further, he like all other citizens is subject to the states constant unwarranted surveillance. As George Orwell rose, a party member lives from birth to death under the eye of the thought police. A state of life in oceania is literally orwellian. The alleged National Security reasons for the state policies are vastly overblown. The state has not identified any concrete information collected through it intrusive 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] be change that is right, the state is surveilling its citizens solely to enforce the birth sex bathroom statute, known by their acronym bs bs. And how is the state conducting this surveillance . We understand the state has pushed malware to all cell phones, tablets and computers in oceania and had unfettered access to encrypted cameras on any device in oceania. These policies will not make oceania great again. [laughter] which is what the thought police might claim. The era of big brother is not over as president freeman has promised, which leads me to the second argument, the officers responsible before we 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 totally to taking care of the people. It seems like pure conjecture that the thoughtful police would abuse the powers of observation they have only to keep us safe. He cares about only one thing, that is 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 pulmonary briefs. You did not identify what sanctions, you did not tell us what was in those briefs that you disclaim, so if you would respond to those threshold questions, what sanctions and what do you now disclaim that was in your prior briefs . We merely disclaim our prior briefs to protect the sanctity of the attorneyclient privilege. We knew that the state was monitoring all our communication so we did not write anything we thought would be damaging if released because we all know we live under constant surveillance but we did move for sanctions. 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. We would like monetary damages and we would like to enjoin the state from any further intrusive surveillance of our clients and all citizens of oceania. A preliminary question. I and all of my colleagues were appointed by president freeman. Do you think that you can gain impartial justice on this tribunal . [laughter and applause] i understand president freeman is in his last term in office. Would you move that we move this proceeding in a ban until elected . That is an excellent question, your honor, that i had not thought of but quite brilliantly put. I am confident that we can get a fair hearing from this bench. I would note that approximately half of you have previously worked for the aclu, an affiliate of the oceania Civil Liberties union and we can get a fair hearing from these judges so thank you for the question but only this court can protect the rights of Winston Smith and the other citizens of oceania. You expressed concern about surveillance in your work and i want to assure you that there are, will not be any cameras in the Supreme Court here. [applause] or smack i want to ask you to focus on your argument about qualified immunity and ask the question that is key to this case. Good thinking officers, and merryman doubleplus inside the poll, how could merryman be clear wise established . You dont speak new speak . Your honor, i speak excellent new speak. You can answer the question in english or new speak. For the benefit congratulations. Reasonable officers understood and moved the principles of english socialist and merryman is counter to that principle, how could a reasonable officer possibly know the rule of the case, in other words you cant win. For the benefit of the audience i will respond in english. Winston smith rights to be free from wrongful arrest, interrogation, culture and unjustified surveillance were wellestablished at the time officers mistreated him. The constitution is in force in oceania despite the laws big brother brought into play. No reasonable officer could believe it was lawful to subject Winston Smith to routine beatings and psychological torture. I have a pulmonary question, how can you say your client faced the threat of irreparable harm . He cant even show standing. You read our claptrap decision. Your argument seems to rest on contingencies with no risk that is impending. Just because the state has surveillance powers under the patriot act to monitor every last communication of its subjects doesnt mean the government will actually use those powers. Your honor is in the claptrap case did find the plaintiffs had only a speculative claim of harm as a result of government surveillance practices. Here, Winston Smith can demonstrate the government intends to inspect his cell phone and likely far worse, arrest, detain and torture him. It is worth noting the dissenters in clapper were correct, the plaintiffs were starting to have their communications intercepted and monitored but we need not rely on their dissent because the majority ruling does not bind the court on these different facts. You are asking us to intervene at the preliminary injunction stage. Why shouldnt we wait until a full record is developed, the permanent injunction stage . Why should we proceed on skimpy rhetoric rather than everything you want to put in . Winston smith and the citizens of oceania need immediate relief and only this court can provide that relief and it must be done right away. We would note there is no National Security threat as we have said. Big brother claims war is peace. When the fictitious war is merely a pretext to maintain the repressive social order and the partys coupon power. Dont you have a serious causation problem we need to establish a record for . In particular you argue in your brief the party systematically destroyed continuing if president freeman, the peoples capacity for independent analysis and critical thought. I think about causation and wonder whether keeping up with the kardashians and other reality tv had already done that to us. We are all suffering on a regular basis, that is a perfect example. Well. [laughter] the change there is a man who wrote about what you say was done and the name of that man was hamilton. Before i say you should get your way i want to know what that man did say. [laughter and applause] your honor, if hamilton were here i know he would say defendants in this case, the thought police, should be held liable for illegal mistreatment of Winston Smith which our Founding Fathers would not have tolerated the abusive authority big brother has brought to the state of oceania. I have a question about this case. Both sides have experience rewriting history. The government, through its Truth Department and that is where Winston Smith worked, rewriting history. How can we doubt that anything either side is telling us is true . The court must be referring to doublethink among other concepts, the power of holding two contradictory beliefs in ones line simultaneously and accepting both of them. Bob bauer piece is based on indoctrination of its citizens in doublethink. You realize on ex parte merryman that was written by chief Justice Haney who also wrote the dred scott decision. Is he a reliable source for civil liberty principles . We like that case because the plaintiff won. [applause] that case was about suspension of the writ of habeas corpus and why isnt that strictly academic in this case . Because whether it is executive or legislature, legislature in oceania is under the thumb of the executive. That is correct. My opponent relies on the silence of congress as a sent by congress and we would argue we cannot rely on congress to protect the rights of the citizens of oceania. Having congress effectively acquiesce in the unconstrained president ial powers president freeman is exercising congress hasnt acted meaningfully in years. In fact, government leaders care so much for the peoples safety that they have almost nothing but fake seats left in congress. Exactly right. That is why we rely on this court for the relief Winston Smith seeks. Those actions happened 32 years ago. Are you discriminating against those with age . Is there a time when we turn the page . [applause] 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. I have another question about qualified immunity which i will ask you. You say in your brief, quote, nothing was illegal. Since there were no lawyers, the quote in your brief, doesnt that mean that no law could be clearly established . That is a concern we have with the entire concept of qualified immunity in this case, there is no rule of law in a state like oceania. We submit that only this court can restore the rights of the citizens of oceania. 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 quoted and not some, no other outcome is consistent with justice. Your whole argument sees premised on the idea that we are in some sort of dystopian Science Fiction police date or something. The scenario is 1984. You are asserting a privacy right. Your client is all over google and facebook and twitter and instagram and snapchat. For this audience, linkedin. He even posted lebron james. What privacy right is left . Would you concede that apple, google and facebook know more about him than the state could ever learn . That is an excellent point. Our clients did try to lead a private life and have a relationship with a lover in the state that he was unable to have because of the state of interest of surveillance so there is privacy which he sought. In addition i noticed through the malware placed on our devices it is impossible to know whether social media was initiated by smith were placed by the ministry of truth for which he worked and for which he and others regularly use to transmit propaganda, the oppressive regime. They made some mention of practices in Foreign Countries but you didnt, you seem to focus on domestic law. Are you aware Justice Breyer just published a book called the court in the world, american line the new reality, are you disrespecting his views as a lawyer . I am aware of the book and would never disrespect them. Did you read the book . I bought the book. You are the one. [laughter] i dont understand, given Winston Smiths own description of his condition after his reeducation by the state, he said, quote, that he, quote, loves big brother. But he understood that the party helped him, quote, win the victory over himself. This seems to be a happy content this. What do people say about it . The state also argues that Winston Smiths problems are of his own making, he is a victim only of his own mind but is someone paranoid if everyone is truly 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. How is the state aware of these private thoughts . Through constant, unlawful, unrelenting surveillance, exactly the practice that smith challenges today. We might as well dismiss now smiths case, if im understanding you correctly, asserts a reasonable expectation of privacy. The essence of which is his unwillingness to show everything which has and he effectively played himself outofcourt . Unwillingness to share everything via iphone is contrary it contrary to the i patriot act. He would not be showing everything if the state did not have it infected by malware to make its every communication available to the state. What about his facebook posts . Everything is out there, right . Why what is your line between privacy, what you are sharing on social media and what you want to share with the state . Why cant the state find out too . In oceania he is not free to share his own post because the thought police and ministry of truth control everything. I would like to reserve the remaining 5 minutes of my time for rebuttal. [applause] we will now hear from counsel for oceania bob bauer. Madam chief justice, if, as we strongly recommend, it please the court, petitioner paint oceania as lawless. What is the legal proceeding . Judges, counsel, case all open to the public except the unfortunates who cannot afford the ticket price. All the world can see the violent criminal history, is now free to be a litigant and this transition is the hallmark of a rule of law society. The petitioner claims he has been lawless the tortured background that in a record that is replete with paranoia that is so 1984. Everyone is out to get him. Of state officials are whispering cryptically to him in hallways, we say oh please. He also says our Surveillance Program is sure to land him in prison but how can he know that . Why would we not have done it before now before this spectacle . And put him awa