they please the court michael who had appearing on behalf of the felons i plan to spend just what the court norm gone ice plan to spend about two minutes or so clarifying one issue and two minutes discussing the theme of the case which i believe is very important here and would like to reserve five minutes of rebuttal time if awful first they have to be your own time keeper yes yes your honor thank you first they clarify an issue that the county made for the first time on appeal which i don't believe i covered in the reply on page ten to eleven of its brief the county argues for the first time that the law does not ban welcome speech the county rely solely on the preamble of the law yet while the county and this is very important expressly conceded that the law did include walking a speech that occurred on pages one hundred nine through one twelve of the trial transcript in a discussion with the trial judge in addition and despite the crea the clear language of the law itself quote includes quote protests and demonstrations unquote in hill versus colorado the court used the dictionary to define demonstration the court defined it is making quote a public display of sentiment for or against a person or cause unquote so let me provide an example president bush comes to town there are two demonstrations one for the president you know he's got enough problems also let's pick a senator any senator from across the nation they come to town there are two demonstrations in one in support of them one against them one involves welcome speech one involves unwelcome speech yet there are both demonstrations so when the last states quote demonstration or protest it certainly includes welcome speech i would also like to discuss welcomed with the thank you ana i would also like to discuss the overall theme in this case because i believe will help the courts see the big picture here the law is unconstitutional for for independently dispositive reasons but when all these issues are distill to their core they really involve the same central theme the law create a proper balance between free speech were in large numbers and were had both horns at this three hundred foot bar her with three hundred feet the permissible on that circumstance yes because the law is not nearly tailored in that particular situation is not nearly tailored for because of this reason the county may enact any other law to involve the take care of problems of nuisance bullhorns trespass all those laws are already in place now or would preclude such activity of creating a nuisance of that type in a residential neighborhood so it doesn't need a three hundred foot ball for to do that well suppose there are there are hundreds of people you could see that in order for you to prevail here we're going to find that the on this face it's basically unconstitutional that it's unconstitutional in every application of the case so there's there's no way that this could be tailored to be constitutional well it every aspect it's unconstitutional well i think there are two issues that the over breath which i agree with the core hundred percent and that issue then there's also the time place and manner test which is a separate issue which is almost like a flip side of the coin where the court sees whether this is nearly tailored or not i think that's a little bit different and then you're looking whether there are other alternative means that are less restrictive that can be utilized and that was the point that i was attempting to make that all these laws already exist elsewhere that i do that ok to make it less restrictive it's kind of drawing a line  place a limit on the number of acres in which injunctive case it was not a legislative case and with the junctions you can tailor things very closely you can't do that if you're a legislator you're dealing with broad principles that's true but the point i was tempted to make about madsen was it listed numerous alternatives which included limiting the number of picketers limiting the time of day limiting that they's per week a smaller zone the county can take all four of those combine of the gather and maybe have a one hundred foot zone and limit on a number of picketers looming on the foreign born in douglas which were eight circuit cases they did pass laws that were up held that they included fifty feet on either side of a residence or one house on either side in the case the douglas they were dealing with so if i thought los so i would say that fifty or one hundred foot  was a three hundred foot set back from the residence in question and you could have picketed right in on the street in front of the house so given that very clear example how can we conclude that it's facial and constitution based on narrowly tailored test and the fact that our courts have universally struck down anything over about fifty or seventy five things well if you had a case i mean in our analysis  it would seem as though the facts presented by this particular case it was sufficiently narrowly tailored because you have a setback that's three hundred feet if if there were a different circumstance where you had a seventy five that's at the back you might have a different case which all of which suggests to me that it's really more should be analyzed perhaps one has applied challenge as opposed to things will challenge let me specifically address that i think that this is an especially appropriate case for a facial challenge because the unique background of this case in which there was a trial a fully developed factual record and also a field trip a judicial fieldtrip by the judge in which the trial court asked both sides select two houses and  judge the attorneys visited five houses including the target and two on each side and maps were submitted as evidence with a three hundred foot buffer zone around the center point of where that residence would be and those maps  at least two particular residents says you cannot have any speech in front of sixteen residences on one map and twenty two on the second map and i think there is plenty of evidence because of the unique factual posture of this case and the fact that there was actually a full blown trial a full factual record and is just a field trip and it is run against you and the far right and the judge found against you after all that after hearing all of the evidence and said well there's there are alternate means that we can use the next year or the first amendment concerns are satisfied and that's why i was bring up the issue of the balance because i don't think the trial court properly balanced in this case i think it was clear language where the court residential privacy as a complete trump over free speech in this case when a house is targeted three hundred feet doesn't apply if you're not targeting or focusing on a particular house you could  right in front of a row of houses as long as you're not targeting someone in a particular house as i understand as i read this ordinance that is correct your honor but if you as long as you target anyone for example let's say target a child molester because you want him to change his ways you also want to learn his neighbors that he is a child molester you cannot pick ten houses fifty houses or one hundred houses as long as you're targeting that one particular house if it's three hundred feet away you could be three hundred one feet away from the house while you couldn't walk in front of the whole row of houses as long as it included that one particular house and that was conceived by the county journal oral arguments in other words as a bubble around the targeted house exactly well that's is the legislator legislat here at protecting a constitutional right and it may not be or it may be somewhat akin to the first amendment right to peace and tranquility in one's residence home they have a right to that to the right of privacy in our home and all the houses we don't to a football field and at any one of those four houses there were pics you could not see any signs at three hundred feet you could not hear the message at three hundred feet it was clear that the message could not be h well that's one of the things that happens when you have a bubble that's three hundred feet because now you're moving the protest three hundred feet away and now you're just dropping people who aren't targets you know in a lot of these cases you're dealing with you know well company executives or something animal right protests you have people that might be used to that kind of protest going on and you have the protest is occurring in front of their house or near their house it's now impacting the neighbor's yard and doesn't require for no another way of making this ordinance more narrow for example if you had a one hundred foot bubble zone combined with a permit system that would place the police and their people on notice that people are going to be out there in a certain time and date that would be another another reason why this particular law is not nearly on the evidence you cannot see or hear the message of three hundred feet and that was clearly stated that the right is that the district court found you can hear the message at three hundred fifty no actually what the court found was at visiting the football field you could own if you could see the sign but you couldn't read it and at three hundred feet you could not hear a message and yes a lot of people were yelling nice it at the this is i'm reading from the court decision at a slightly elevated higher elevated town i can to a cheer a shout that the sound could be heard clearly and the verbal decides whether three hundred feet is too far it does not have to decide what an adequate a law is you know whether that might be fifty three hundred feet or combined with other less restrictive means assuming the district court was correct in its factual finding they and a slightly elevated voice that the message could be clearly heard it heard three hundred fifty what is that in your case i believe he was referring there to the football field i believe he made another finding that in the house you could not hear the case i think the court still needs to look at whether there are other less restrictive means a numerously less restrictive means which i believe there are in this case there are at least six that i've all line seven including the issue that  we say that no legislature drew the line at three hundred feet and we should not say three hundred is too much you should have drawn it out a hundred feet well there's a presumption there that i disagree with the record does not show that you are aware of picketers at three hundred feet it shows that you are aware of some degree of noise you can hear some type of murmuring occurring but you're not aware of picketers you cannot see signs from here in the district court said i know you disagree with that that the message could be heard three hundred feet into the promise seems to me and is that this is a facial challenge if you had an as applied challenge in a case you might well be able to show that you couldn't hear the message but it's difficult to to analyze every possible  and say well there are none that none of which the the regulation and the it would not offend the first and then rights i would point out that frisbee was a facial challenge as well and also one of the other cases that struck down an ordinance was also a facial challenge as well so many of these cases i don't believe they could be treated differently under the statutory scheme because then it would be content based and then strict scrutiny would apply and i don't think any ordinance would withstand that level of judicial scrutiny in this case there need to be a balance between free speech and residential privacy in this case the law is far larger than necessary to protect residential privacy and the county has many less restrictive options from which to choose for example  fifty or one hundred foot buffer zone if we type ordinance which has been upheld in several other districts all limit on the duration of picketing a limit on the time of day of picketing a limit on the number of days per week that persons may pick it all that was discussed in the mats in case or a combination of all the above and i would also add the example bravo just previous and as to the possibility of applying for a permit in unison with a smaller buffer zone so my best argument is the law is not merely tailored in this case to address the evil that it seeks to remedy and the only thing i would emphasize if the very end is that numerous other cases dealing with residential picking ordinances have been facial challenge and because the importance of free speech judges or courts have addressed that exact issue and made decisions based on fusion challengers and again i would emphasize because of the unique nature of the factual record in this case the fact that the court went out and visited four properties and that there were actually platen apps as part of the record with a three hundred foot buffer zone around the property shown that in one case sixteen properties would fall within that bubble and in the second one second map twenty two properties would be including that one i think that evidence shows that the buffer zone is just too large in this case the voters own from the house exactly and this house here it was more than three hundred feet back from the street in that particular instance and in the subject property now not the other four subject properties that were  by both counsel and one thing i will also add which is very interesting the three hundred foot radius was made by a compass on those maps from the center of the property because before we visited the properties we actually know where the houses would be and since how twenty five hundred square foot might be fifty by fifty we would actually have to expand that buffer zone out by about twenty five feet so more than sixteen properties more than twenty two properties would have been included in this particular example is have these  may please the court my name is william johnson i'm a senior deputy county council stand you go county i think i can be fairly brief and direct my comments strictly to the issue at hand which is is this ordinance merely tailored to serve a significant governmental representing the can you san diego i think it is reflected in the record that there are really two cases nationwide that have really looked at a three hundred foot restricted area and in both situations both the city of san jose appellate court in california and this district court that have carefully analyze how the three hundred foot restriction applies have both concluded that it is merely tailored and in  particular the trial judge in this case went to the extraordinary steps of going in if you will afoot in a field out into the unincorporated area of san diego county which is where this ordinance applies and so when you look at some of the ordinances that have been in some of the other cases and we quibble over whether it's one house away or two houses away when you go out into the unincorporated area of san diego county where this ordinance applies if you're out in the areas where four acre lots five acre lots where the property line may not even be clear you may be looking at a fancy you may be looking at something and so what the legislature the county board of supervisors chose to do in this case is select a defined area creating a specific and i think the best way to answer your question is no matter what device is used whether it be a frisbee type ordinance or a to house limit one house limit the effect of the ordinance and they pass constitutional muster throughout the country  different variations the effect is always to push it on the neighbor in fridge b it's to push it away from the front of the target house to the neighbor's house i think ultimately the idea is your is it reasonable  think the effect of as a practical consequence is that it makes the picketers begin to reflect on what is the best way to get their message across and maybe a general march you want to tell them  large setbacks but unfortunately one size fits all doesn't really particularly work in terms of the way these ordinance are usually analyzed well one size would fit all the matter what size you pick whether it be one hundred feet whether the one  would have faces when you move the farther with a greater distance what you put on the organ and on the more those considerations come into play here you have an unusual case where the subject property was actually back three hundred feet and so you could have perhaps a legitimate ticket on the other hand in most cases in the ones that are in the record you have twenty two houses away or how many houses and they know which is i think probably not affected but i want to just address that particular issue on the record because just you can imagine what we did on this field trip and clearly reflected i think in the judge's decision we went out first thing we did is we went to a football field i think the one nice thing about the hundred to three hundred forty is it's something that most people can deal with one hundred yards a football field is sort of the distance yards away and i have my pitching wedge in my hand i'm pretty close to the whole kind of situation but it's a common commonly understood distance i think is one benefit of selecting this type of distance but we went out in first we started at the football field you can imagine all of us with the judge's clips down of one of the football field holding up our signs and started talking and and judge brewster got a sense of you know what this really is and he said you could read the signs of the three hundred i mean  lengths to try to assess what is the impact of this ordinance and what isn't sufficient and i think it's interesting that he took a different slightly different tack not is it serving the interest because it's keeping people sufficiently away that we're protecting the privacy worse were serving the interests of protecting the privacy rights not the reason for the fall below the bubble is to prevent people in the residential homes from being captive audience correct they have they don't have a right not to be aware that people don't like what they're doing they've got they have a right not to be captive i e that they can't come and go from our home without feeling as if they're being imprisoned it seems to me three hundred feet if someone doesn't like me and are three hundred feet away in there and they're complaining about me i don't feel very captive if they're on my sidewalk in front of my house i have second thoughts about getting in my car and it's place this restriction and it's about three times what's what courts have generally allowed three times father there doesn't seem to be much of a rational basis except that it's a football field and everybody knows what a football field is  let me let me go beyond that i mean i started my argument by saying that the city of san jose case considers a whole lot of factors and by analogy some of them don't directly apply to residential privacy but for example they cite the fact that when you have a stay away order that are commonly granted three hundred foot is is distance to choose they cite to a number of other factors that are considered you have in front of you the district court who again went out in you know we went to several different configurations there are areas in the unincorporated areas that looked just like any other city block houses next to each other we went to a a called exact that had sort of a unique configuration where the three hundred foot hundred yards in the three hundred feet got people away from the front of the house that far the same as they would everywhere else i think it's judge brewster for you know found that there are people in the unincorporated areas that can buy their own privacy by just having a large lot and what and those people are subject to having folks literally in front of their house but because they bought and paid for a large lot that the gives them that zone of privacy what this does is expand a similar zone of privacy to public officials  of from the house is going to occur no matter what ordinance you adopt whether a frisbee ordinance that's clearly been held to be constitutional it moves into the neighbor's we're moving them somewhere else and if it's the point of the the exercise of the protesters to get the word out to the neighbors then they're in the position of getting that word out the way the one last thing i'll close with i think is that the best argument  this ordinance as the district court found you know when using his thing of what's the threshold where is the threshold where we're serving the government interest without going too far and in this case he found that you know the hundred yards gets in a way where they're going to have to be yelling they're going to have to be doing conduct that might fall under some other restriction if it was annoying the neighbors in other words if somebody is three hundred feet away and trying to get their message via a bullhorn into this house the neighbors are going to call the you know the authorities and say i want something done about this under a noise ordinance or something else that's going to apply to protect the neighbors a stay silent picket that has an intimidating effect if it's right in front of your house may or may not you know have that same effect on the neighbors as it is i guess the best answer i can give you that gregersen on that but i think the universal is any ordinance that if keeps people away from a house in whether it's fifty feet one lot two lots all the things that have been held to be constitutional always by a factor shifting that in front of the neighbors let me ask a different question the district court order seem to treat the right to tranquility as a trump card and whether that was loose language or not i don't know but it would seem on a on a reading that the district court may have failed to do some analysis when i think i'm i have in mind the language you're really are trying to balance but he didn't say that he said that he said how as an absolute right which suggested he didn't balance and i'm not sure i could but why should we send him back to a proper balancing athan that's a very well i think he did by looking at the threshold in other words he's saying that well what we have is is the frisbee court said a a significant a very important you know whatever words the phrase because we have something that's it's a very important rite of residential pri use that court and then he said i'm looking at where the threshold is where does the ordinance serve that interest and he concluded that at one hundred yards three hundred feet the the ordinance is serving that interest  they're talking about protecting an unwilling listener and so these protesters these picketers have every right to communicate their message we keep talking about child molester there's nothing that prevents anybody from knocking on the door of every neighbor in the way and handing the leaflets that they did you know john smith as a child molester the none of that is prohibited by this ordinance general marching in the neighborhood is not prohibited in what we're just talking about is a situation where a group of people post themselves in front of a house within three hundred feet of a house for the sole purpose of intruding on the privacy of the resident court which is approved by a bubble of three hundred feet not that i'm aware i'm not aware of any either not yet seems to be that this ordinance is pushing it to the extreme of even under frisbee that which is the fargo and others where you can kind of and they're usually coming out of towns where there's been a history of a particular event that's led to the enactment of the ordinance and so they're really trying to move it away from a house in a neighborhood and you kind of get a sense that there's there's a little bit of history that leads up to the ordinance well the history is that aside from this one court and this issue has been before many courts three hundred feet it's seems to be the extreme taken into consideration with the fact that people in in residential homes although they don't have the right to utter tranquility have a right to some sort of privacy even though they could be made aware  of that people don't like them it seems to me three hundred feet given that the frisbee opinion is pushing the envelope quite a bit well i would just respond that i think if it it is a reasonable balance going beyond that might be too far that that's the case it's not the force but i think the three hundred feet is the district court judge found given all the circumstances and again i don't know what is the least twice or three times as far as what is in fargo you have some residential areas you've got some quasi rural areas you have some places where you have some people purchase the rights so three hundred feet may be appropriate when you're dealing completely rural area but it may not be appropriate in the city which suggests it's not nearly tailing we have to me i react just the opposite i mean it gives everybody the same gives everybody the same area of protection and remember the distances from the house so what we're really talking about is the privacy of being able to be have a have a certain area way where you have some privacy you don't have people intruding on our house on that or that they don't have a right of privacy they have or they don't have a right not to know the picketers are they or don't like  favor right not to be a captive audience in their home and a craft and not knowing a captive in their home and three three hundred feet no one feels as if they're being falsely imprisoned in their home it seems to me that the legislature here sort of pushed it beyond what their legitimate right was to allow people in our home to come and go if they don't want to listen to the picketers and they don't have a right to tranquility they have a right not to be captive and three hundred feet is an awfully long distance to say that they're a captive if you're two hundred ninety nine feet from them truth you know i kept it intrusion is the word i use that the ability to intrude into the home by being so close that that you're basically in the face of the people in and around i can see you and you can handle that in terms of any particular incident that i'm aware of the profit i think it was more of a matter of a general legislative agenda for the county board other jurisdictions in daniel kind of been adopting various kinds of picketing ordinance like this and somehow it got to  attention of one of the supervisors and i'm not sure exactly what that was but this case does not have the the background in some of the cases that did or where we start with it start with an injunction and end up with an ordinance get sent back and get modified the order does get modified by injunctions this this doesn't have those aspects it just has a decision by the legislature that three hundred feet is an appropriate distance and you know whether it should be two fifty or three fifty i would just respectfully u this court to affirm the district court's finding that three hundred fifty is a reasonable balance between the competing interests at all of those and before you leave i want to get the exact exact quote from this record discourse as the occupants are entitled to an encountered enjoyment of the tranquility and privacy of their homes without being subjected to unwelcome speech and the first amendment may not trample on those rights i can't be an accurate statement on do you think well in context i think it is because i think what the court was trying to say by that is that in southern california that that part of the privacy of your home is not having to go inside lock all your doors and windows and pull down the shades so you're not seeing what's going on in southern california part of the tranquility and enjoyment of your home is being able to sit out on your patio being able to be outside and so it is a different from montana well i don't you know i've never been to montana and so i can only speak to what the district court was trying to evaluate and i think that's what it was and i think that's that's i have no doubt that that's in the district court was trying to preserve the trying quality of the home which is fine and the supreme court said that that the of the petitioners the palace here are are to use this the public streets that they don't have a first amendment right to a guarantee that they can reach into the home and get their message and so i think that's that's the balance how far do we limit their rights to use the public streets offsetting the right of privacy and tranquility and i think all i can ask this court to accept is the legislative determination  and from the district court finding that three hundred feet while it may be may well be at the outside limit and i don't i don't know that because no other cases in front of us in the other cases been decided but it still is a reasonable distance a reasonable balance at a reasonable time place and manner imitation that protects and serves the government interest as the district court found with that i conclude is my best argument i think and if there's any other questions i'd be having thank you  i have just one final arguments and judge progress and give me a great segue into it when you asked a moment ago what was the motivation behind this ordinance of quite frankly there was none i want to make sure that the court had received my letter brief which was submitted on generally third or regarding the quba case which came out after this this matter was briefed before this court and in that particular decision is under the time place and manner test the government has the burden to show that there is actual evidence that supports as justification for the law in this case kline established the county field to furnish any evidence at all that justifies the three hundred foot residential picking ordinance or even any evidence that justifies the list restrictive restriction klein established the county presented no evidence that it undertook any study or any on site research the term in the minimum distance needed to protect residential privacy so after the coup and the cooper case says we enact the law you have to have evidence that there's a reason for the law and also that you've looked into whether it's nearly tailored no evidence at all the submitted in this case of the county anything like that and in fact the county conceded in its brief that the only reason it inec to the three hundred foot restriction is because of the san jose case it basically looked at all cases out there picked the one that had the broadest restriction said ok we're going to go for this one but they did no research and no evidence was submitted of research in this case and that would be my final point iran they could have general legislation that i'm looking toward future events they don't have to respond to anything which is imminent much legislation is of that nature right your position if there is nothing threatening out there they had no reason to enact the ordinance not at all your honor when i'm saying is if they're coming come up with it and specially this type of horns that impacts free speech then you have to have some kind of evidence on hand that shows that you look at a balance or what the  for the ordinance it's just that we're we're quibbling over how many feet the bubble should be i agree my only point was there's no evidence in this case that a three hundred foot zone is necessary versus some combination of other less restrictive means of serving that same governmental as they goal how would you arrive at that i think that the county has to go back to the drawing board actually go out and visit properties and do some on site research some stuff doesn't require to do that i'm sorry why are they required to do that people legislatures that set arbitrary footage limits all the time and the question is we measure that in terms of the constitutional challenge but i don't know of anything that requires them to engage in a certain amount of research before having an ordinance and i agree with you regarding the rational basis test which involves all the other ordinances that don't involve a constitutional right in this case we're looking at intermediate scrutiny obviously i think in that case under the cooper decision to decide well if you're looking at free speech restricting free speech you have to have some kind of minimal evidence out there saying this is the least nearly tailored or that there was a good reason for having eight in this case  agree with you because there are other cases there's other case law out there that of upheld say fifty foot zone or one house on either side so i think it might be clear that you could you could skirt that without actually having evidence on hand but i think when you're going as the course said like three balancing for us for these things and i'll take that whether or not that's when i pass muster enough for the question and it's not irrational for them to do that and san jose is interesting from this perspective there actually many reasons why san lower standard although they give lip service to intermediate scrutiny all right thank you you thank