court here today representing reagan national advertising of austin and also presenting this morning for both reagan and the intervene or tomorrow i'm going to focus my presentation this morning primarily in the  on the recent six circuit opinion of thomas was as bright as the court may recall the decision was rendered actually the day our reply brief was filed and so we did not have the opportunity to fully brief the issue and since that is i believe the most thoroughly reasoned case in this particular area i like to focus my presentation this morning on that in particular as mentioned in our brief this case represents the st of its kind in this circuit seeking to apply the supreme court's standard in the read purses town of gilbert case and its core read clarified st amendment juris prudence governing signed regulations by requiring a threshold determination in reviewing signed regulation to determine whether the regulation was content neutral on its face looking at the plain language of the ordinance code or other regulation without regard for its justification put another way if the message can only be said spoken or displayed based on what it says then the regulation is not content neutral and must be reviewed under a strict scrutiny analysis as described in our brief this was many authors have written that this was a sea change for signed regulation here in the united states but it was a change that was recognized by the majority in a justice thomas and this is a little confusing i know in our presentation because justice thomas wrote the reid case and thomas vs brite is now the most recent case on that so i'll try to be clear when i when i make reference but justice thomas in the majority opinion of read makes it clear that using this standard many well intentioned well reasoned well justified signed codes that might be perfectly reasonable ways to regulate signs must nevertheless fall under this new standard here the city of austin has a sign code that defines on and off premise in a content non neutral or a content regulatory way required to look at both of the ordinances to decide this case the pre the prior one and the current one or you do seeking relief under the current one the permit applications that are subject to this particular challenge is under the prior code so we only look at the prior code i believe that's correct your honor and so what what relief would you get then if you were to prevail if if the court determines as we believe the court should that the prior signed code was not a content neutral regulation that the prior language must fail as being a violation of the st amendment now that is not what then what and then the next release the remedy it seems to me would be that if the basis stated by the city for denying the permits was a constitutionally suspect or constitutionally an official in permissible regulation then they permit should be granted either or denied based on some other justification or if there is no other justification because the prior code has now been supplanted by the new one that we are not to consider the prior one really consider the new one what's weird to me is you seem to think that makes the case moot in the city seems to think it doesn't seems like the exact opposite of what we would expect to be hard so i assume argue window that we are not going to consider the prior code and only the current one tell me whether or not that is what hurts or helps here we don't take the position that this is a moot issue in fact as we cite in our brief the vested rights statute section two hundred and forty five of the local government code in texas requires that when a permit is submitted in improper manner and in this case the city would not challenge the form of the permits as being improper when the permits are submitted in any sort of regulation or entitlement on real estate when is submitted to a regulatory body a city in proper matter then a vested right  right vests at that moment and therefore that permit has to be reviewed based upon the then on the books i would order to read it i thought my question either what if we disagree with that premise well do you do you think the current a statute is unconstitutional that the way the city changes our current code current current ordinates the way the city change this i think could still be subject to challenges not fully briefed in our i think what the city did in this particular an attempt to make the definition of on an off promise as a non content based they didn't actually go that way at all what they simply did is add a modifier at the end of the definition of off premise to say or other commercial speech but it doesn't tell you whether it moderate like the word persons is not a commercial so that the modifier doesn't modify every item in the series and so if the if the st one is constitutionally infirm the nd one is also constitutionally infirm i believe that's correct i believe that's correct the problem because it's or other commercial when the other items in the series are not commercial i agree your and what i believe the city was attempting to do was to try to  rather than three configure their code as as the state of texas has done in a recent challenge to the higher beautification act in texas and make it simpler location really based i think what the city attempted to do in this particular case is try to with that single modify or tap into commercial speech type regulations but apart again i think of course exactly right in this particular case i think the prior and the existing code because it regulates noncommercial speech or individuals or persons that are attempting to communicate before activities that take place not only at the location of the sign but somewhere else i think the same channel in the city points out it didn't change the digitizing issue so then which seems to be your main concern here is this digitizing issue and so that doesn't seem to have been changed and therefore that would not be moved i agree or not agree so it's not movement either way because you either should be grandfathered under the old ordinance and get  one because that's when the permits or some are because the new ordinance also has the same allegedly problematic elements i agree i agree and in this particular case as i think the city i'm going to speak to that to the i've pointed out the only modification to the prior definitional code was this edition of or other commercial speech the prior code as the city legal department itself recognized in the record before this court in their memorandum to the planet planning commission recognized after the re decision that the existing signed code the sign code in place at the time read came down and at the time these permit applications were made two years after reba's rendered that the sign code at that time was not content neutral and indeed that is the reason why the city as they recognized or as they admitted in the record before this court needed to change their code in this particular case the city defined off particularly content not neutral or content review way by saying it applied to any sort of advertising of a business person activity good product or services not located on the site where the si a stalled or that directs a person somewhere else by its very nature that definition is not a content neutral definition of the plane where the signs are changed you know if if a school has a sign and it could say exams start tuesday and that would be on premises but if they said come to our car wash at joe's barbecue to raise money for the school club it would not be so how does that work if the chain if the text of the signs are changing over time because i don't see that signs don't just say dormant in fact were and are selling to different people in your model and designs will change exactly and what the court points out that the digital nature of these particular sign applications the digital nature of the signs that we're talking about simply speeds up the speed at which the text can change and what the court points out is actually  i think a regulatory issue that see the city is dealing with now the city in austin actually has a large number of on premise signs that have been converted to digital there's a great deal of digital signage for out the city of austin and there have been instances that  not before the record of the court but instances where on premise signs are being used to advertise events away from the actual location that would i think technically be a violation of the code as it is right now if the code were constitutional but it in that is exactly what happens and can happen on a pretty regular basis if if a signed copy in these digital context can change several times a minute several times an hour then you could have instances of that were current it seems to me if there was a violation and the regulation was constitutionally acceptable one is allowed to advertise on premises and one is not because you can't really control whether a digital sign is going to be saying something about the off premises  would i do your honor if the court determines that this this sort of distinction between on and off is a content based restriction that i think it would allow both on and off premise to advertise freely in all directions and i think from the standpoint of constitutional review that's the appropriate remedy given this particular situation i want to talk about the thomas case that we sidetracked you from talking about well what i was going to going to say your honor if you look at thomas and i want to point out it had thomas come down nearly a couple of days earlier might have written a slightly different brief but as we pointed out in our particular case many had real difficulty in the read case with justice ali opinion irreconcilable with a majority the thing about thomas versus bright is they in fact took that exemplar analyzed it and harmonized it appropriately with a majority as thomas pointed out of their decision and thomas i should say dealt with a signed regulation it was the highway beautification act implement implementation statute in tennessee that although technically it was different than the city of austin it was structured differently there general prohibition on all signs and exemption on on premise and then an exemption to the exemption that has very similar effects to the city of austin regulation here in the thomas case what he's citing justice what the court successfully did is harmonize that what justice alito was doing was simply talking about perhaps he doesn't really explain what he was meaning in his exemplars but talking about a vocational regulation in fact other examples in his exempl talk about those kinds of regulations perhaps although the court and thomas didn't discuss this perhaps what justice alito was talking about was using the on premise in office in a common term of art way as the court did in metromedia and if the court as this court may recall the supreme court metromedia dealt with side regulations but under a signed code or a signed ordinance that made it a political only to commercial speech where easements or any that is correct i have a commercial party so why can't you get the permit by advertising for the commercial property where it's located joining and then change the sign immediately well i'm just wondering because if you can do that as a private person if the school can do that then why can't you get the permit with it just advertise for the business for a little while in this change the it cost because you just need to convert it over and then once convert i just i don't understand why can't the self practically i understand your honor and perhaps that you know there was some suggestion that at one point i know it in this case of rivers the truck or whatever ask the question why don't you just do it business that the property is on for a short time sure let me say just so there's not confusion here not every landowner that leases sells or whatever allow signs to go on their property would necessarily be involved in a i think that's probably better directed at the same understanding is in the city code that would be cited as a violation of the sign code with a potential penalty of a one thousand dollars per day per violation on climate change in other words you start with the advertisement for this joe and distinction in the way they would be treated right and that is that that is the problem with this particular regulation is it is the disparate treatment that it provides i'm going to reserve the rest of my thank you maybe the city can would respectfully submit that the district court here properly denied the relief requested by reagan and limbaugh and properly followed the the supreme court's opinions in both metromedia  we would agree with reagan in the more that read did clarify to some extent the law in this area by by basically clearing up that there is a basis there is a two step then the court looks to the purpose and justification and there was some un player to be in cases before that read is now clarified that and if one analyzes the district court's opinion in this case you see that the court carefully followed the read out line on how to analyze these types of signs in the court concluded that the reid decision although it provided that clarification the read decision did not affect kagan to get to this notion that the off premise vs on premise distinction is still viable i don't think we do your honor i think it certainly the concurrence is hill but the terms of read itself state that in order to be content neutral it based that the regulation basically cannot make distinctions based on the topic or the idea or the message of the sit don't you have to read the sign to know if sarah's anniversary or mcdonald's burgers yes your honor you do that you do have to match nouns like content to meet if i if i can't read english i can't even figure out whether the signs violating it versus if i can't read english i nonetheless can tell the sign is bigger than two by two or has has a purple color reading or whatever other regulations you might has correct your honor but but we would submit the district court here found and other cases  cursory examination that sign officials make in order to determine whether the the the subject of the sign is located at that particular location does not actually  amount to a determination of of whether or not of the topic in the audience what if sally has a sign in front of her house and she says sally makes quilts here and she sells them at the quilt shop three thousand two hundred main street so it's both and so what happens then but i think there are cases where it could be both and  you know barbara and tom love what a barker what is that what is that sign well that's certainly a noncommercial sign and i would point out that when what has a big picture of a of burger logo on it and water burger is is wants to put that in barbara in tom's yard and barbara and tom are thrilled about that but i would point out i would point out your honor that any message that is in this case that is placed on one of reagan's billboards or remorse bill bill bill boards would be permitted by the city most there's no evidence in the record that any message whether commercial or noncommercial is or grandfathered yes this digitizing they can't digitize they're getting behind the times they're everybody's digitizing it's good speech cheap it's easier to change the message it's cheaper it's easier to maintain that's correct and we would fall back go back to the metro media analysis that cool cities local governments in the legislature words can make a reasonable determination to protect public safety anesthe where you can make the whole city of austin not allowed to digitize that would work ok but here the problem is you are distinguishing based on on premise versus off premise on this digitizing and digitizing makes a big difference if you're selling a billboard because when you can digitize then you can charge a lot of people versus just the one person that's got their billboard and the creation of that is much more expensive we have to go make that big thing and posted up there any other people on the on the ladders and all of that versus just sticking something in a computer that's correct your honor and i still think that metromedia allows that type of analysis and that type of distinction whether it's the size of the signs whether it's electric or non electric metromedia allows legislatures to make that type of a problem is this it seems that perhaps the city of austin has not made a distinction between hasn't gone all in and said nobody can get these signs these type of signs it's distinguished space to put con content of the sign whether or not you can get the sign or not and i still don't know whether barbara and tom can have that sign or water park or have that sign i can not clear on the answer to that question well i think under if there they grandfathered sign like all of the signs that are and has a big water burger logo and a meal in your honor i think i would have to agree that if that's the case and assuming there's not a water burger restaurant on their product in our group within denying it that would be a violation of the of the city's code even though it's barbara and tom who live in the house and are the ones they're spritzing it's a mixed message we're getting into the content in who the speaker is and who that's that's  quintessential content based analysis when you say who is the speaker and you say what are they saying you know that's it that is content based analysis but i say the regulation is applied even their location and that's like some of the examples that reagan in a more pointed out in their briefs about the church choir practice you know the church could put up a sign and say choir practice here but they could not put up a sign that they can do that and why can they do that because there's no there's no evidence in the record that the city has has instructed anyone basically to take down any type of noncommercial sign running between those three excellent judges vising people to vote for them but would that be noncommercial digitise that's but they were and none of us live on that premise of barber time there there might be an issue with the digital part of it but still there's a new the actual message itself it's not being suppressed by the city but because you thought everything we're asking is about digitized because that's the issue today you still would have to look at because one of barbara was running for city council then she then she would be that would be on premises does a vote for barbara because she's on premises and i don't know anybody named barbara's running for city council choosing her example of a name so i don't want to inadvertently supporting her on supporting someone but if she lived at that house then it would certainly be on premises whereas if she was supporting judge l ron that would be off premise correct enough but and so that would be a violation of this code because you're not supposed to advertise persons and so what you said this doesn't have an exemption for political speech it's far as i can see on it's like you said a we wouldn't force that that's a problem too you can't say if it's totally discretionary and enforcement and that's how you're deciding then that sing another big problem with the city so you don't want to argue to us that we wouldn't force against the political sign d i don't think that's the answer i understand and in my mind i would go back again to justice alito has concurrence in read that where he sets out a long list of certain distinctions and regulations that would not be considered to in the house if they live there what if it's their grandchild and they don't live on the premises but if they're there it's their relative does it matter i don't i don't think that it just read that they live in that house signs here you really don't we don't really have to make that determination of on premises or off ramps as basic rule of premises do you treat on premises signs differently so that they are allowed to advertise for off premises items that's also relevant to whether this is narrowly tailored and whether to advance your your goals well i think your honor if they're advertising for off premises items or goods then they would not be considered on premises well in the beginning though even there if it's a school and we have to give the hypo at the very beginning where they're saying go to our car bush to raise money one day they have exams exams tuesday study hard and then the next week on friday they say come to the center of a car wash at the burger restaurant to raise money for football boosters is that changing and it's the on premise sign but it's advertising in off premise is that in violation of your statute in in in what if anything is austin do consistently apply your honor if if and i'm assuming that's as you said that is a digital sign yes we're all dealing with you know in technically it would be it would be a violation so do you go take it down from the school or do you just tell them to go put back the exam schedule i believe they would be under the terms of the code they would be given a citation ok although i again i point out that there's no noncommercial message here that we're dealing with in this case where that is actually occurred no but you don't question that they can challenge this ordinance on the basis of the fact that it treats noncommercial speech the same as commercial at least for the digitizing piece best correct ok and so they can challenge and on that ground and that alters perhaps the analysis except except your honor that as a district court it does not distinguish non commercial messages based actually on their content their idea or their message or the whole bunch of examples do you know that's a problem can you help us with the cato brief that says that it does not advance your asserted interest because you're allowing some things to exist that do exactly the thing that you yes rather i would go back to the metro media analysis where the court there and other courts like the district court in this case that local municipalities can make those type of judgments basically to further either static interest or public safety interest and if if there is a reduction in the total number of signs that is the result of those interests or if there is a reduction i would submit in the number of here is it's not content based in the sense of only people supporting candidate a can put signs up whereas people supporting candidate b can't it's not that kind of content base but you still have to read it to know are we advertising the burger restaurant at the burger restaurant or our way of sizing a burger restaurant at the  talks about an idea or a message and it takes more than just looking at it in making a determination of the location of the sun and and whether it's products or activities located there those with the cases we've cited in our brief especially the california cases that have a nap have analyzed this digital sign issue you have all said that that distinction the on premise off premise distinction is based think they probably are but maybe they're not always right that up there yes ma'am but i don't think it goes far enough to be determined to be content based and i think that the difference in the thomas case is there as opposed to here there was evidence in the record that the tennessee sign officials he testified at the trial that they actually performed a subjective analysis of the purpose of the s and there's no evidence that the city of austin here performed any type of subjective analysis i would submit it's more basically looking at the sign in the location is more just an objective determination of will is located here or not in they were actually they describe it a subjective purpose analysis was performed and i think that's one difference the other in another difference is there's no evidence here that any noncommercial sign like the one easy what you call it a cursory look or whatever that you do we wouldn't be doing that there were three i don't know how he needs emanation at that point could help that case i would suggest that the the case we cited in our brief court i think points out here the difficulty the city of austin has with this particular sign code is it's not commercial only by its very nature definition applies to persons and activities and that i think is the heart of the examples that the court has had is struggling with here today is the minute you say i'm going to define this as a cannot promote or advertise a personal right to have it not a commercial enterprise you necessarily triggered noncommercial speech and i think the city's attempt  to rely some extensive legal metromedia is mistaken because the court knows metromedia is a commercial only signed regulation we don't take the position our breed i don't think it's our intent to say the supreme court in the reed case overruled metromedia read was a case involving a commercial speech but the examples that the city has given in response to the court's inquiries here today point out exactly what justice thomas in writing the read majority opinion joined by justice alito because he fully concur in both the judgment and result found that these sort of cursory reviews were calling read it dealt with a small church the good news community church the did not have a premises it was a floating church that went from theater school school auditoriums from from from week to week and in that particular case although the city in the town of gilbert took the position that look it's just a curse or if you were viewing these temporary n to determine because all joined in the judgment can to conclude that that sort of redo the cursory was not a concert was not a contest is therefore extra cost and if they're trying to keep austin beautiful what is the fix for this code that would not violate the st obviously is the court of as your honor pointed out a ban of all sorts of digital signs would be permissible and generally because that is entirely content neutral would be allowed the city has chosen not to go that particular way and the problem here is the minute you say to one speaker or one person or one owner look you can't say that you can say this but you can't say that the minute you say that will cite you will charge you a one thousand dollars a day the minute you do that you have now placed i v the ordinance on its face or the  the regulators as they go out and implement that ordinance in the position of reviewing analyzing and regulating speech and here the city cannot do that they must make it merely the kind of regulation that would allow you to simply regulate the sign without any you could drape the sign face if you would and make a determination based on that just where the signs located where it spaced off the next side of where it's based off a building or  there are lots of ways you could do that size exactly but exactly but the moment that you say you know if you regulate the signed with the drape over the language and as the  is raised if the regulator can say oh you were good until you did that you have created a content based regulation and is the court in the thomas versus broad case said in that particular case regulating very similar content in very similar language but for the state of tennessee s contest the court would have found that uncontestable that that was in fact a content based regulation in this particular case this court is presented with almost the identical type of regulation the city is elected and allowed it to remain on the books for two years after it after a raid came down a content based regulation that regulates the time of the matter technology type of speech in this particular context we believe under the read in the thomas authorities that that is impermissible in the st amendment and therefore we ask for these reasons that this court reversed the tr