they when the man's a permit for structures larger than for about four feet and as inside root just a little bit clear about the framework it's a first amendment free speech framework right and also due process so in other words but you're not claiming that his religion requires him to have a sketch board and he's being prevented from doing that it's not free exercise of free exercise ok and then is there sin as applied or facial understand that what you're trying to do is talk to a couple people at a time as opposed to have some big you know they have concerts in this park and no one would dispute that you know i have a license before erion a grinding shows up in a relatively small park and puts on a concert right no matter how expressive her music might be so as far as is your client when they discover what he really wants is to engage a couple people they say well ok i mean that's fine you know so then that kind of is the is the end of the analysis on the public event as far as one or two people if he wants to go put on something for hundreds of people they're going to say yeah he needs a license but really you're not debating that that makes some sense we're certainly not challenging the ability to this in what they told us in a letter august seventh twenty fifteen by my counsel is that the public opinion does apply to your activity even though all you're doing is with the schedule we're trying to draw the attention of just one or two like the application of the two to his expressive activity that well they've already agreed to that i mean they've already agreed to two things they've agreed that when you specifically doing now that they understand it and mentally they've been a little confused mixed up but now they say we understand he's trying to talk to a few people were fine with that we were to agree to that then on the structure rule the only thing they said is we don't want you in the middle of part boulevard you've got the whole rest and again i mean hard boulevard makes it sound huge park is only five acres i mean it is a tiny park it this is not central park in new york as you well know and so the whole briefing makes it seem i would do this grand you know the grand lawn at all this stuff think of a park is tidy and thousands of people go there and so there does need to be some you know sensibility to how this is done and so they're it's perfectly legitimate to say we don't want sketch fords in the middle of this passageway because it's not just your guy he puts his skills for doubt now the next guy wants to put a snitch work up now not a guy wants to put in pretty soon hard boulevard is impassable and then what do you do so that's the whole reason why you have time place and manner so also some so in a structural isn't even an expression issue in the first place but they have said with respect to your guy we'll give you a permit to be at the end of heart boulevard so why isn't that good enough it's a very small distance from where he wants to be it's not three out there and they got to deal with the traffic and the location and so forth you don't get to choose your location that's and there's a point as this is the problem is that the way is is worded in a way it seems the ways construed remember is the somebody who you know if you go across the street to a lark on the park they have a bunch of art up there what it is you have somebody you sit with a sketch for drafting the art to take over to i granted that's actually a chalkboard that ok let's say we're going to take it over to lark on the park and cooler in a place where kids could trip over whatever i'm sure they would tell him to do so the problem is you've got somebody want to set up a sketch we're not driving through with the stroller not put a blanket on the grass you've got somebody who's arguably blocking the way and if you allowed a bunch of him maybe he by himself would be ok but if there were a bunch of him you would make the whole thing impassable and that's what they're trying to deal with and i'm not saying it's a perfect way that they've chosen but the question is whether you've got a first amendment claim not whether they're running the park perfectly frankly the park is being run pretty well home but putting that aside the question is not whether they're running the park well or poorly but whether their application to your client is interfering with his facially neutral provision because the structural is facially neutral as far as content and that kind of thing and it's not directly related to expression because the record shows that there's no concern about the congestion off limits to mr moore but they say he can be in a plaza so he can be in this area but he can be in the plaza here and so he misses all the people that are in the great wall and so that's the concern of ms i thought that they said he could be well ask them what were they saying he can be but you still have officially neutral provision rule in the structure because if i wanted to go and set up a building in the middle of our boulevard i think people would say well that's a problem you want to join a rule that it would be chaos if these two rules were enjoying we would have concerts going on with nobody knows or common we would have people can put up whatever they wanted in the middle of our bill of art you would have a complete chaos so you can't do that i mean your guy is not your client is not the only person using this mark and this is one of the problems is that you have to try to as a city or as a entity running the park find a way that everybody has their breaks free expression  everybody has all of this and that but everybody gets to use the part because it's not just you it's also me it's also this other person it's also that other person it's this little child etc if they had a rule coarse language issue is that the unbridled discretion challenge as to the structure rule was not raised until the reply brief below at that point defendants had already put in their p r response in their peepers and it would be their burden  preliminary injunction to put in what they need to prove on that so that there's an absence of record that goes against them that's correct your honor we cite the beyond case on page twenty five of our brief for that proposition to the extent there is conflicting evidence about success on the merits of any of his claims already what do you do about the fact that the four foot rule would apply to things like ice chest for example what if you had an ice chest that had an expressive message of some sort on its own political or social expression written on the side and more than four feet better we think there could be circumstances in which a very large coolers could could come within the scope of the structure rule and it's important to note however that the district court squarely projected mr moore's suggestion below that there was any evidence of arbitrary or discriminatory enforcement of this rule much less the routine disregard that mr moore claims even if however mr moore had such evidence it would have most be evidence of the park's limited resources not of any constitutional problem with this it doesn't speak in terms of a place and all we're talking about is the matter that's purely that of of of of speech itself so that any matter of that regulation you reach all speech that could be made by the use of the fo are it's not for a couple of reasons first i have to start with your second point about the standard we think o'brien is the standard and betrayed this is act newstand incidental restriction on expression in mr moore has effect types of structures that are involved because trends and tables are also structures so anything expressive about the concept of structures or your point of it's an incidental restriction is because the structure might just simply be a table it doesn't say anything it doesn't express anything the fact that he particularly wants to use a structure for expression is incidental to the overall purpose and scope of the structure that's absolutely correct here i mean if i could speak perhaps to the point that i took a back and raised about  degree of oversight both of the types of structures that are brought into the park as well as where those structures are placed advocate could be on the pearl on without a permit yes your honor look there is a place there is the proton is is always available for sort of on a first come first serve basis the park has made clear that you know we want this to be a place for free expression but as your honor pointed  there that's correct your honor and under the noose agreement the foundation is specifically charged with providing that programming for the benefit of the citizens of dallas county shimmers is required to quote make every reasonable effort to indication that someone else of the sketch board he's doing something different not doing a religious message is being treated differently no your honor not on the this report squarely rejected it was your words and implication that there was any sort of arbitrary or discriminatory enforcement of this rule and i said even if he had such evidence it would merely be evidence of the parks limited resources and inability to police the space twenty four hours a day  definition has more parts it's intent to attract and an audience which is a group of listeners or spectators and so affectively what happened here your honor is that you know unfortunately there was just a lot of confusion about the type of activity that about rule is contained in the record at one seventy two and i got it so we're dealing with a space where there's this sort of hybrid role of the park has where it's a park but it's also a venue and so there's a set of requirements laid out in the rules for private events to what is a room at the to really run or requires a permit for a public event that is intended to attract an audience if not public event meets a list of criteria which are laid out in the record and one of the criteria is do you seek to use an area of the park other than the other than the pro a lot of the other the pro line which is a space that the park is sort of permanently dedicated to spontaneous expression of any kind so you can always come to the park and go to the pearl line but because the foundation is in this position of trying to coordinate all of these events happening on a daily basis they said look if you want to be in another area of the park we're happy for you to do that but we need to know in advance so that we can coordinate with other programming that's it if the basic intuition behind the rule i got in your honor we think the district court properly credited the park's representation that it will could be a problem if a lot of people just suddenly start crowding around and you've got an issue nobody knew that was happening that's correct no specific moods or permit processes we're challenging because we don't have any there out there but what we are challenging is how the process itself alas for an editor but other songs you have is this was a preliminary injunction you know you all made you more discover so you have a heavy burden to us it's not just do we think this is a good rule is could we write a better one and all of that it's whether a district court that did not a point or injunction but you still have your case you can still develop it further you can maybe find things that may alter the calculus  whether that should be reversed so to me that's a pretty heavy burden that you're just kind of saying you don't like how this works but they've said your your your person is not subject to the public at will and they told him where he can put his structure that is think you would agree they could keep him off there because it's a safety issue is a bad barring traffic so if that's the problem is we can't always be exactly where we want to be we can do what he wants to be is a place where he's clearly to be and that is a public sidewalk a place that has been