good morning it please the court my name is george wallace i'm hearing today as counsel for hell and in both of these cases at this point i propose to argue them jointly and i would serve five minutes if i may for reply at the end of the similar in that they purport to be regulations of parking within various municipalities but have in common that they are also regulations of parking that are directed specifically to vehicles with or without motors that carry upon them speech and not only are they parking regulations but they are parking regulations that empower state actors to seize and impound the property of private citizens specifically the vehicles or non motorized vehicles on which the speech is born and that possibly carry criminal penalties so this is clearly a regulation of speech and it is a regulation of speech that we would submit is on  face a content based restriction whether it is the restriction on advertising signs on trailers or the restriction on advertising and all variety of other nonpermanent signage being born on a motor vehicle we requested and the court kindly granted the an opportunity to file supplemental briefing in this case relating to the supreme court's decision in the case of read versus town of gilbert the read case in its form as decided by a panel of this court was the explicit basis for a number of the rulings both in the district court on both of these cases and of a prior panel of this court in reviewing the denial of that both of these sets of ordinances need to be deemed to be a a facial content based restriction on certain types of speech and therefore subject to strict scrutiny ellie's have ever proposed that their respective ordinances can withstand the strict scrutiny standard they cannot provide a compelling state interest they cannot identify how these restrictions are necessary to the advancement of that interest if we conclude that these ordinances are as i believe they are content based then they are unconstitutional on their face because they cannot stand that test alternatively if the court does conclude that these are not content based restrictions they still do not satisfy the more intermediate standard of being reasonable restrictions on the time place and manner of speech yes so let me jump in here the state or the city of los angeles has offered two reasons as i understand support these restrictions one is they have some safety alleged safety concerns and i'll tell you right now a little skeptical of those in this case but they also have the visual blight and i thankfully in there and if you could focus your argument on how we overcome that because there's a case from the eighty's and there are other cases metromedia and  so forth that say visual blight is something the city can take into consideration and so that's why i'm having that the trouble with your argument visual blight your honor is and interest of the state that can be taken into consideration if we are applying the intermediate review standard of reasonable time place and manner i don't think for reasons i can get to that it actually gets the city is over the line in this particular case but it has been held that visual blight aesthetics basically is not a compelling state interest that can be utilized to support and enactment if it is content based and subject to strict scrutiny it's important but it's not compelling and the city's cannot based on blight argue that these restrictions are necessary to a compelling state interest if we get over the line to establish these are content based restrictions and i think that the particularly the ordinance relating to signage on motor vehicles has to be deemed content based under the rationale of read versus town of gilbert because within its own terms it singles out different varieties of speech for different treatment if for example includes a specific exception for advertising by auto dealers that they put on license plate frames attached to an automobile it's saying it singles out identifying marks the vehicles or decorative marks on vehicles so long as they are permanently affixed to the distinction between permanent and temporary signage operates in effect as a content based restriction itself because there are certain sort of messages that you may want to put on your motor vehicle that by their nature are going to be temporary just married a scion advertising a charity car wash things of that sort flying a laker flag with the lakers were still worth flying flags for these would be necessarily temporary expressions and they are blanket banned because of the temporary nature now on the non motorized vehicles the mobile advertising build mobile billboard advertising displays which are the subject of multiple ordinances by the at belize those have been held up by a panel this court not to be content based based on the premise that the purpose of advertising he basically encompasses all speaks the logic seems to have been that advertising is speech therefore all speech is advertising i would submit that the panel that reached that decision was in error in this obtained leave to supplemental supplement the briefing in this case that decision is not binding on this panel the ninth circuit is really empowered in its discretion to revisit that prior  is or is not a content based restriction going to another event and that are supposed to give a lot of deference and wouldn't that make sense that we would give a lot of deference to how california is interpreted in the constitutionality of its kind of its own ordinances i mean it seems like there is case law to say that we should give some due deference to the courts when that happens you could you can and you should certainly defer to the courts of california in terms of their interpretation and determination of what a statute means however on a matter of the united states constitution the rulings of a california court would not be binding upon this but they may be persuasive certainly but they would not be binding as a matter of determining what the constitution permits or does not under the first amendment that is a matter that is certainly within the ambit of this court regardless of what the state of california may be doing and as we've shown in the br the state of california is not consistent in its interpretation of the term advertising as being as all encompassing as it has been found to be in this case there are many circumstances both statutory  because they're advertising that right i am i am arguing your honor that by describing the content of the signs as advertising the apply to political advertising public service advertising the panel previously in the lonestar case found that any sort of speech a blank a billboard a blank trailer that was there for the purpose of conveying a sense of existential despair or neil ism would would be an advertisement under the ration and we had this discussion with that panel as a matter of fact if you put a flag on it simply to display a flag that would be deemed to be advertising under the interpretation from the prior panel and i don't think that an ordinary person looking at this ordinance and looking at a flag would say that's advertising  all content then advertising is segregating out maybe a large swath of content but still not one hundred percent and therefore it is discriminating in the treatment of content based upon its purpose and and because you're saying that it what what have i guess i'm trying to figure out in order for a lot to be content based it must be different or subordinate to certain types of speech of from other types of speech right so what kind of speech are you arguing here is being given preferential treatment it's not so much a speech given preferential treatment it's that a large swath of speech but not all speech is being singled out for detrimental treatment and which type of speech political or commercial advertising because you're making ties you're making are you kind of making all kinds of arguments i'm trying to figure out are you seen it is advertising and also is political no your honor i'm i'm saying that advertising is itself a purpose that does not encompass all speech and it is only speech that constitutes advertising that is being restricted here meaning all other sorts of speech however we may define it are not restricted which are also arguing the effects of political speech it encompasses political speech but is not exclusively targeted at it what the supreme court emphasized in its decision in read versus town of gilbert is that an obvious content based restriction would be pointing to a particular subject matter and saying we're going to regulate this subject matter clearly content based but you can also in a more insidious way get to content based restrictions by describing the purpose for which the communication is being made and here the ordinances concerning particularly the non motorized vehicles specify that to qualify as a mobile billboard advertising recently in similar case they said the term advocate is not limited to calling the public's attention to a product or a business the definition of advocate is more general quote to make something whether it's your patriotism whatever it is is advertising that sentiment i'd not defending that definition but that is have a california court construe an ordinance the bands advertise you are correct your honor and that is also at the most fundamental level exactly the rationale that the prior panel of this court adopted in the lone star case i would submit that that rationale is incorrect that it reads too much into advertising and that the only if the if advertising encompasses anything that is being conveyed in public it as that authority and as the prior panel basically concluded van the reference to advertising in these ordinances become surplusage because everything is advertising if you put it out in a public place and that seems rather significantly overbroad my time is about to run out so i do want to emphasize that even if the court finds that this is not a con that one or both are not content based there is still i think a very good argument that none of these ordinances satisfies even the intermediate test in terms of the reasonable ness of the time place and manner basically you have an entire medium of communication that is being excluded from the entirety of the city of los angeles or other municipalities and it does not satisfy even the intermediate test for a near fit to the advancement of the interests and there was no showing in the court below in terms of evidence but the blight issue to which we have already had reference actually even exists here the city's did not put on that evidence below let's just say there is a blight issue can you identify or give an example less restrictive alternative other than your billboard that the city should have considered other than an outright ban well we discussed this in  briefing and this was an issue that came up in the in the redondo beach case involving the in person solicitation of work on on the side of the street and this circuit was very concerned in that case that by making it a blanket citywide ban rather than confining it to specific locations where the city could show there is an actual problem it was over broad and therefore and unreasonable regulation of time place and manner we also cited the fine tuning the city of san diego has done in its billboard regulations in which the size placement location of billboards and other signage varies from place to place depending on the conditions on the ground how much traffic what speeds things of that sort it does not operate as a blanket ban as the ordinances do here you know that's a problem not uncommon in law which is you adopt reversed but that's what that's what the supreme court said it is certainly true ronnie the cities have the right to pick and choose which particular problems they address the issue in this case would be having selected the perceived problem of science on the vehicles parked beside the road they then did not find two in the solution to that particular species of blight so as to accomplish this tight fit because it is unquestionably targeted specifically on blight in the form of protected speech based conduct so there needs to be not a perfect fit but a much nearer fit than these ordinances are providing with that if the court  no more questions at this time i will defer the town of gilbert case in which the supreme court determined that the ordinance that issue in that case was not content neutral under existing signed law but as explained in our joint  these brief the city's ordinances are drastically different from the town of gilbert ordinance the ordinances at issue here do not contain nineteen exceptions to their prohibition of what would constitute a mobile billboard advertising disability and also as we as the panel was engaged in discussions with pelly opponents council the term advertising in the definition of a mobile billboard advertising display is still planted neutral as was held by the court's panel on march twenty first two thousand and thirteen and in that decision the court was pointing out california law defines advertising very broadly to encompass any communication there are also federal cases that hold that and those are cited in the memorandum decision from two thousand and thirteen also the dictionary advertising is a very general term and the point of prohibiting mobile billboard advertising displays under state law and under the ordinances that are inactive pursuant to that state law is to prevent the visual blight the aesthetics the damage to your statics and the health and safety issues of visual distractions to drivers well why did the legislature need to include the word advertising at all i mean couldn't it simply have said they and signs of a certain size rather than advertising signs i'm not quite sure why they included advertising i don't know you know i know it's the word that they chose it's the word that we're where we were the cities used when they adopted the definition for their own ordinances  hard to see what could be not advertising well the council i think of living in san diego there's a street called miramar road and i miramar road there is a planned parenthood or similar facility and i see people out sign holy up signs of you know don't go here christ will save your child and then i see the guy spinning the signs for the furniture store next door now if you asked me which one of us was advertising i wouldn't point to the people in front of the abortion place i'd point to the signs banners i would never in the advertising would frankly never come to my head i don't think so can you point to another area where we have used the word advertising to talk the memoranda decision fashion boutique of short hills versus fendi usa the ordinary understanding of advertising and connotes activity designed to disseminate information to the public so under that definition holding up the sign in front of the planned parenthood clinic would be advertising even though it might not occur to an observer that that's what that is but it when we're dealing in statute and and coming up with language for laws sometimes we're constrained by coming up with the most accurate term and i can see why the legislature would have used advertising so it's for me to sum up my prime there's nothing in the supreme court's decision in the town of gilbert case that would disturb the conclusion that the panel made back in two thousand and thirteen and if the district  followed in granting judgment in favor of the cities in this case therefore we would respectfully request that the judgment of the district court be fun i had one other offer  we noted in preparing for oral argument that photographs that do exist in the district courts record mobile billboard advertising displays of the appellant were not in the appellate record and i would offer to either direct the court to where those can be found in the district court's file or we could submit a supplemental excerpt of record with the document it was a request for judicial notice at that time where those photographs are located so the court could have a visual if the court deems that helpful and if it would be permissible i was that's all good morning there please the court time richard holdaway city attorney for the city of loma linda and i would join in the comments were made by counsel someone everything well it could be signed could fall under decoration i think in the cities brief argued that if someone wanted to put  decoration identification or display includes any kind of time that could be put on correct so you don't need the words at all and he said that would be yes that's correct will display so it would it could fall under only identification but i mean no it could fall it fall or identification as well as display so i don't have the answer your honor as far as what the something that is drawn attention is drawn to something so it's i mean and that's how the dictionary defines it that's how this court panel defined it that's how the second the appellate court the state appellate court to find it it did it the dictionary defines that as as broad and as far as our everyday usage of advertising i understand that our everyday usage of the term advertising could connote a more commercial aspect but however display as long as the sign you look at how the sign the officer would look at how the sign is displayed on that vehicle if it's if it's permanently attached or if it's and if it doesn't extend the dimensions of the vehicle then it falls within the order so i and there's a picture of a white van i'm looking at e r one thirty eight one thirty nine there's a white van was in the signs on and i think we've all probably seen them my understanding the ordinance is that if that were painted on the no problem one of the orders that's correct from a blight perspective but i would not want my car to look like this i'll be quite honest but i thought if the sign is taped on there or bolted on there or it's painted on there it looks looks the same to me so from a blight perspective how is the painted on see scrub foot massage for twenty one dollars how does that look better or worse than if there's a piece of cardboard taped to the outside it's like the person who litters that flyer has a problem but as to blight if a if a car is in let's say a lone star they got to the best of them are the best welders in town and they weld that thing on there so it's like space shuttle tough and they park it on the side of the road and then right next to it is a van where it's painted the exact same thing on the organs but painted one is ok and the bolted on one is not correct correct from a blight perspective i might think they're both ugly but the fact is i'm not sure why the wall would permit painted and not bolted if they both look the same when you and i would direct the court to account except to record page one thirty eight and if the court looks at that van with the billboard hanging over the back of the van that is that is not a sign that would comply with the ordinance because but you decided to eliminate one form because it gets rid of one category of blight that may not be a very good decision but that one category where it's not permanently is just one category that the city can do that it's going to cut down on the blight by eliminating that category that's your answer whether it's a good one and better than saying well it's going to fall off because it's not  one and decided another day or never to get around the other form of life i mean i think there has to be your answer because if we're talking about what's the uglier van you know they're both pretty ugly so i and i don't think  we were talking of the ugly man contest i'm not sure who the winner is going to be but i think it has to be what judge my heart suggest unless there's something else that and that i'm missing here is our so is that is that your position that the city may target one form of blight violated it's not my leaving the ordinance well that's the best the whole problem though so i mean i think again i don't want to make people's time or apologize to my colleagues but i but i just want to make sure that it is the city's position that there are equally blight a place a court richard hall the way for the city of loma linda back on the lone star case i represent a small city of twenty one thousand people residents but we have these large institutions hospitals medical centers universities so we have an influx of all hours of the day and night people visitors patients and students and so forth parking and traffic are serious serious problems in our city the state legislature and its findings that enable the city to adopt the ordinance in question pointed out the not only blight but the effect of these mobile billboard trailers parked on the city streets this will blight safety hazards to motorists impairment of visibility to motorists and pedestrians and and pointed out the important governmental purpose of preserving limited parking for its intended purpose so that was the basis for our adopting this ordinance and those are substantial government interests that could not be met in any other way that i know of other than to prohibit these flimsy non motorized trailers from being dropped off at multiple locations throughout the city they take up parking they peer visibility they are dangerous and if you live through one of our famous santa ana winds you know what i'm talking about these things are not attached to a large vehicle that has a motor that would they're not affixed to the ground in any way when the wind comes up these things migrate across the road we didn't have to address all of these things in the record because the legislature already found and this is at page eighty one of the appellant's excerpts of record where the legislature made those findings the district court adopted those findings and reiterated them and it's the situation that decision was upheld previously by this court so those impacts that are addressed by this ordinance are substantial and the interests of the government in this case the city of loma linda in the other cities is reasonable to to address these sorts of problems now are there alternative means wraps there are a lot of different means of communicating and other than dropping off one of these flimsy trailers on the side of the road or in a limited parking location so we feel that under reid versus town of gilbert the court left specific guidance to this court and one of the factors that was mentioned was portability of signs another was signs posted on public property so here were  banning a narrow category assigned a portable trailer basically where other methods of communication are readily available so this was done in an even handed content neutral way i haven't heard any category of message that could be posted on one of these portable signs that would not be governed by this ordinance we had this discussion previously before the the prior to him going to give you about twenty seconds or i said i  conclude by saying that even a blank sign has the same negative impacts that were sought to be addressed by this ordinance so i would ask the court to respectfully affirm the lower court decision thank you very much and i would give you  three and four minutes at most thank you your honor and i will be brief it strikes me as as ironic that by adopting such a broad definition of advertising we are now managing to apply a less rigorous standard to the examination of ordinances that effectively banned all speech then we do two ordinances that are more selective here as the supreme court emphasized in read versus town of gilbert innocent motives do not justify a enactment that still acts on the content basis and one of the concerns the supreme court acts expresses in readers town of builder that even more or less facially neutral and act moments can be used simply because of their breadth to target disfavor of speech in foresman now the case before the court is a facial challenge we have not presented and as a pplied challenge at this point but the danger of picking and choosing among the favored and the disfavored of speech based upon its content is inherent in the breadth of these ordinances briefly on the subject of blight the method of attachment really cannot be characterized as contributing to the blight if it's blight full it's because it's an ugly car not because it's an ugly car with tape as opposed to welding as opposed to painting et said if the court has any further questions i would be happy to address them otherwise i will submit this matter for your decision and ask you to reverse the ruling of the district court in both of these cases and thank you