morning will be construction general laborers union three thirty against the town of grand shoot inflatable rat during a labor protest on a public right away in tucker versus the city of fairfield in that case the court found that the application of a local sign ordinance was not narrowly tailor eisenberg for you get too much further with that i would like you to tell me what relief you are arsed currently seeking because it appears that this construction project is long since finished so i'm assuming that you can correct me if i'm wrong that there's no reason why it would be putting that rat out in front of colossal anymore so where what is the status of your request for relief we want the ability to use the rat and no interest in this case but in other situation in iran shoot yes that local three thirty has jurisdiction in that municipality it's a place where they do work and this presents a problem if they're not able to use the in this type of situation future is there any indication that there is a problem at the moment you know i'm wondering whether this is advisory your what  that in general that red has to be used or are we talking about striking this ordinance down as a facial and invalid ordinance no i think as applied to the rat the union wants the ability to use the rat when it engages in these activities in the town of grand shoot do you need to make any kind of showing of capable of repetition yet of aging review i mean what why not address the situation the next time it comes up maybe the rat wouldn't be a structure at that point or maybe there wouldn't be the alleged safety concerns well again because the union is geographically located in this area grand shoot it is a sizable community next to appleton where the union is a court this is something that is very likely to come up again and it's something that the union wants to be able to use the rat without having to go through this whole thing again again so it's not something that was going to happen one time and then we don't forsee happening again if that was the case i think your concerns might be well founded but the union strongly believes that this is something that's going to come up again and now there's already this precedent that they cannot use it under the way that the grand grand shoot is applying the ordinance and scape so are you conceding that an ordinance that just says there would be no signs whatever except for traffic signs you know a stop sign yield you know one way or whatever you would concede that that kind of ordinance is valid under read against dilbert and similar cases oh i think a sign like that is not narrowly tailored where it addresses security because you don't think a municipality can have a an ordinance that says there will be no signs on public rights of way except for traffic signs i think first of all that's a that's not this case where there is plenty of evidence in the record that there are lots of signs on the right away i don't think that the town of gray should has done that here and i also that could be important but i'm just trying to start with you know where where do you come into the picture and so you would can see if they really were limiting signs in the public right of way to the kind of traffic signs i mention that you would regard that is lawful or not i'm not sure that i would because that would effectively foreclose the speech such as this where the union using gaging in a protest and wants to use the inflatable rat and he further into this protest so an ordinance like that is far broader and ordinance sounds a lot like the regulation that sustained and clarke against community for creative nonviolence which also entailed structures and i'm a little puzzled that neither side  but i think that the six circuits decision in tucker is also consistent with with cases from this circuit cases like weinberg vs city of chicago and others and i don't think that the town in this case has ever seriously made any effort to articulate why the temporary usage of the rod and we're talking about situations for a couple hours at a time  while the protesters are there are extremely temporary and they have they've never tried to articulate how limiting speech in that act it in those situations is narrowly tailored to  so the rat i mean it takes a minute or two to inflate when they are done at the end of the day they d flayed it they pack it up they take it home and in fact in this case there's a record of situations where the union was really trying very spots where the route was inflated in this case the main road college avenue which is the road from the highway into the town of appleton has a main body which is a fairly fast moving road and then there is a frontage road so initially this was placed on the median between the fast moving part of college avenue and the frontage road and then later on it was moved just to the frontage road so that it was on the side of the front well how how i see at the front of there isn't much going on in the front room that's that's exactly right and it would not be traffic and then the traffic in college avenue is sort of it's a heavily there's pictures of it in the record exactly where the rat is placed in i don't know if we have measurements to that effect but it's not adjacent to  issue is not moving it closer or further away from college avenue there are two concerns one is there was a jurisdictional issue that when it was on the median it turned out to be in the city of appleton and not in the city of grand shoot because the communications that the union had had were with the town of grand shoot and they wanted to make sure they were doing thing properly which it would grant shoot they stuck with grand shoot the other day actually squished on the little bit of the right of way that's right next to the dealership once they move it is that right that is going to act because the concern is that the farther away that the rat is from the actual target of their protests this this runs into real concerns with the use of the ra under labor law we don't want to have the rat you know a block away where it's in front of another business and the wreck could be and that that's not totally hypothetical because the alternative that the t offered with the route was he put it on a flatbed trailer and you drive it around the block so they never offered to just let you park the tram the flat trailer in front of kalonzo or on the median or anything not at that time i think and this is laid out in some detail in the briefing is that as time went by there have been different formulations of what the union may have been able to do but at the time when the police came out and said you have to remove that route what they said is you can put it on a trailer but the trailer can't be stationary the trailer has to move and at that point the union knowing that it didn't want to get into some sort of secondary issue where it was putting the rat on neutral employers said we can't we can't do that even if by some stretch the imagination you can actually drive with an inflatable rat on a flat truck which really begs the question about the safety concerns that the town was raising in the first  imagine though that if the rats over the the part of the right of way not in the median but the across the the front row down it's actually a little bit further away from the faster moving traffic on college avenue and  probably less traffic factor we don't think there's any traffic factor i mean as you point out it's on a frontage road it's also in the middle of the block i mean the union went out there ahead of time and made sure that the route was an adjacent to an intersection where cars would trip be turning they talked about the location of where they were going to do this with the police before they did it so we don't think that the town can sustain any arguments about traffic given where they moved the rock and again that the union was willing to move the rat at various times to address concerns because they were very concerned that this not raise a safety issue and so when you look at the pictures of where the rat ended up in the middle of a block in front of a construct there really is no traffic concern and there's no safety concern and there's really no aesthetic concern so i want to go back to my original question which is to to what extent are we really looking at the way the town handled this situation limited to this case and how much we're looking at its general policy because you did put material in your brief about the way this muscular dystrophy fundraiser was handled in other signs for other purposes and i thought you were making an argument that no matter how this ordinance was worded that in fact there was a tremendous amount of discretion and there were other things that were comparable enough to your rat that that the town should allow everything for expressive reasons sure well and we're talking about the different prongs of that form analysis and the sixth circuit as a really difficult problem for the town to me that's one reason why i asked about clark against community for creative nonviolence because the supreme court held that if you ban all structures in a public area there's no need to show that anything have passed an ordinance that looks like it's banning everything that it is without it isn't banning everything and that would perhaps take it out of the clark rule and put it into a very different category yeah because my there is really create frustrated where the rat is is treated as a sign on the right of way and it's a problem and then you look at various parts i have a question about this line of argument though is there any advantage to telling to telling the district court to redo the preliminary injunction hearing as opposed to just saying go all the hearing on a motion for a permanent injunction and get all this in the record and pin down all the factual disputes what's the point of another preliminary injunction here well because we don't have just the preliminary injunction but we also have the summary judgment at this point where we also went through the entire process and they threw out the case so it's just that you think the district judge is not ever going to hold any further proceedings because all the orders shows it is the motion for a preliminary injunction is to know but then there's that there's the second order on summary judgment that dismisses the case so yes so i mean again that gets back to my first question so what you would actually be quite happy with that were manned along the lines the judge easterbrook just described saying the final judgement is vacated in the cases remanded for a full hearing on the union's request for a permanent injunction it sounds to me like that's what you're asking for but maybe they're right now but when the preliminary injunction was denied and we then went back and we developed a further record about how the town was actually enforcing this ordinance and we had a much more complete record on summary judgement and the judge still dismissed the entire case and your request for relief then was please give us a permanent injunction yesterday judgement in favor of the point i'm just saying like judgement saying what you know and if the judgement was that you were seeking was for a permanent injunction then i totally understand why you're here you're here because you didn't get what you got thrown out  and when your honor was referencing that tucker can't overrule the supreme court precedent that's precisely are concerned with the way but of course you didn't rely on clerk against community for creative nonviolence either and i would have thought that the supreme court there's both your honor i think actually the case of dover says the prosecutor of marion county does a nice job of laying out numerous supreme court decisions that are on  point i would say perhaps taxpayers for vincent in my mind is one of the most important here is the fundamental difference of course is that the approach the narrowly tailored test in the tucker majority opinion focuses very discreetly on a given example of bloom and whether under the specific facts of that case and the characteristics of that balloon that there is a harm presented and whether or not th focused on that very specific balloon if there is any inclusiveness of a balloon that the tucker court thought was not presenting those harms we disagree we believe that even a temporary structure does present those harms and let's hope that there's evidence in the record to show that you're not consistent about that that's why i was asking the question if you really just had you know a consistent practice of no structures whatever they look like clark be one wouldn't have any concern about disadvantaging any kind of expression but you don't you know the record is has evidence to suggest that the town is not as pure as all that and is instead it seems to be drawing lines between permanent straight you know things that are staked into the ground and things that are leaning up against you know an easel and you're looking at you know th muscular dystrophy campaign versus temporary union objections simply you know with with the rat being there to to symbolize the expression so  concerned that especially given the timing that the rat sits there until somebody from collage so calls and complains about it that sounds like it's a message a content based reaction not  just let's keep our town beautiful or clear of of any kind of sign so i think there are two points there that i would like to address one is the leaning sighing concept and whether that evidence of some form of a discriminatory a content discrimination in this case and the second is the concept of the community complaint the origin of the enforcement action in the first point of leaning time concept there's really no connection between the content of the signs and the basic distinction of whether they are structural or whether they are leaned up against something the town has tried to as something that can be taken down in five minutes is structural because there are a few stakes in the ground i mean that seems like a very fun persuasive line actually you know if you put an easel and you lean something up against it that's fine what's the reason for the distinction there are differences in the safety hazards presented by safety here so for example one of the safety concerns that the town raised to the union is the presence of fire hydrants in nearby so i think this is part of my discomfort and the town's concerns about looking at the specific individual i didn't understand you tell me  other signs you know so what what is the problem what if the red is too close to the height true for the fire firemen to be able to attach their poses to the hydrant and you tell them to move the situation in which this field was so covered with fine with with signs that the fire department couldn't operators there was some other problem created by the signs no your honor i don't know you reject added difference it sounds to me like you do reject the difference between temporary signage and permanent structures i'm not sure i understand your honour's question i believe i agree with you well i'm not i'm not taking a position i'm trying to find out what your position is and you think there's no meaningful difference as i understand what you're saying between something that's a temporary you know you put up an easel it's temporary you can take it down in five minutes or for that matter the rat which we have a record to show you was in fact taken down right up twice a day at least so you don't think there's any difference between that and building a little log cabin on the side of the road that you know advertises what a wonderful place in wisconsin the appleton area is i agree with your honor that there is a distinction but it's one of degree it is not is the tucker court found an absence of the harm it's the difference between my grabbing a bite sized candy bar a whole says candy bar the harm is there either way it's a matter of degree so what about the idea though that the public parts you know sidewalks rights of way are in fact the place where people express themselves outside the first amendment is very protective of the right of our public to express  say you know there'd be plenty of alternatives yes your honor there would be alternative locations but if it completely for bait all speech on a sidewalk that would be a different scenario no one is forbidding all forms of expression in th or no first amendment protected speech is fine in a goes further to say that even though there are alternatives the most effective way of getting the message for the people in mcallen was to be able to approach people on the sidewalk and have a discussion they didn't want them to be carrying placards they didn't want them to be further away yes rianna minimal kallen however the ordinance made it a crime to enter of a buffer zone to even be on the sidewalk so i have four close all forms of expression i think that's more similar not outside the buffer zone why wasn't the time place or manner supreme court rules that it wasn't thirty five feet or thirty trying to remember the party time thirty five feet that's not very much but the buffer zone i solved back to the courtroom the buffer zone itself however within the buffer zone it completely foreclose all forms of expression and that was the trouble that the protesters are that those who did not want to characterize themselves as protestors and wanted to engage in different forms of discussion were completely forbidden from any form of expression within the buffer zone you're free look right at book the very same location there are other alternative forms of expression that are permitted under this ordinance in the very same location it's still not what the supreme court said though they were talking about the inherent nature the type of speech at the abortion protesters wanted to have and that it required one on one conversations a one on one conversation thirty six feet away from the front door wasn't good enough it had to be a one on one conversation where the appellant's wanted to conduct it i do agree your honor that there are cases which do give special recognition to one on one to leafleting to the ability of communicating thoughts directly that would not apply to the construction of a rap alone when the rap alone they said you know if you have little placards people whizzing by on college avenue aren't going to see this and the rat is it immediately sailing in visual way of conducting the message there are other alternatives beyond alternatives now is true in the color of the truth well with in the particular location though there was not an alternative at the time under the enforcement agent of the ordinance in mcallen there is here they could been standing inside this thirty five foot room with their signs and their chance of so much difference the difference here is that we have not the town has not relegated the union to a particular distant whether whether thirty five feet five feet are longer than that away from their location they are allowed to engage in the types of activities that the district court together a sign and just had two people holding the rat actually that was how about that suppose they inflate the rat instead of using stakes they just have for union members who volunteered to hang on to the  lines for the requisite couple of hours in the morning at that point you just have people holding this big giant balloon is that ok under your view i think i think they're my answer to whether that's ok is it perhaps a different answer than whether it violates this ordinance i that's what i'm asking you know would have if that's what the union had been doing no stakes in the ground just for early volunteers who are have agreed to hold on to the same ropes that were connected to the stakes would that make it not a structure more like the flat bed truck except in the location where they want to deal with that if violated this ordinance would that have been permissible i do not believe it would have violated this ordinance what i am not prepared to tell your honor is whether it would have been acceptable under all of the other laws on the books in the town of grand shoot i do not think i do think it would make any difference if the rest were filled with helium and floating six inches off the ground i do not believe it would be a structural sime the falls within the the ambit of this right of way ordinance if that was the case again whether it's advisable it was perhaps a different issue whether it's ok but i do not believe  not believe there's navigation of the town to enquire about the reason that it's not really bad in my wiring i'm just saying the company comes to the that there's a town manager and says get rid of that we there's absolutely have to my question how do we know this isn't that because all of the factual evidence in the record of all of it none of it suggests that the town did what you would your honor described and said because of the reaction of colossal we aren't forcing this as opposed to because of the ordinance language that precludes this type of structure i'm sure that's true though because the rats up for a couple of dispute that what what created to be what sent to the enforcement officer to the site to look at the rat was a complaint from colossal that's undisputed what we don't have is that second piece of information that would suggest that then that it's hounds reaction was based on a discriminatory intent or the content of the balloon when it got there for the town to inquire of every citizen complaint whether it's based on some discriminatory animus and what if it is then to somehow grant immunity to an otherwise illegal sign that that was likely on the basis for the inference would be the fact that the rap is rather visible and you would have expected some police officer or some city employee to have noticed it during the two days but it was over more but until the importer complained that might be the basis for an inference of hostility to the union honor i think that would be an example of imperfect enforcement and there certainly is that but it might be the inference could of course be disputed but i understood the question to be do we know enough on this record to resolve it to resolve or reject that possibility but we don't know the content of the communication from colossal to the town so i'm not sure there's enough to give an inference that it was some discriminatory animus on their part we certainly don't have any evidence that the town's reaction was driven by the content that it had been aware of if we had the facts your honor that they had driven past and they had seen it multiple times at this one and only  it was were of a race discrimination case if supervisor says to supervisor b i don't like black people please get rid of that this and supervisor b then gets rid of x this or that ordinarily the basis for an inference that b is acting on the basis of race if the inference might be wrong right the possible argument could be refuted but it just that information the action that was taken by the supervisor and here when we look at the facts surrounding the action taken by the town we do not see any content driven action because the rat was very ugly the rat is not for well i don't i don't necessarily hold that view personally or honor but they might have that that's one possible reason look do you think they would have done the same thing if the veterans of foreign wars around the ve heard beginning of this that college avenue is one of the busiest roads in town pretty much everybody in town must have seen it over two days i'm not i'm not sure that while our city is certainly not as large as  chicago it's not it's not that small and there's no evidence that the code officer they only have one actually saw there sir that someone had brought it to the town's attention i think it would be a different case of those were the facts before us but they're  not have any cities that's close to zero i think it's higher than zero but i would hazard a guess but but the point that i did want to make is you were asking some questions that i i think are really troubling for the town in in terms of haphazard inconsistent force is there any has there ever been any traffic accident those attributed to people staring at the road at that not  my eyes by the or not to my knowledge and that's actually why the police went out ahead of time or they went out and they told the police this is where we're going to be and they checked ahead it's the record show that they alerted the police to the fact that they planned on using the rat or did they just say we're going to protest colossal those you know payment you know wage policies i do not believe they told them there was going to be a rat there i mean i would assume that if they if they had to get police approval before they put the rat on there that would be a there's all of these different signs and there's not a real rational basis for making these distinctions but by the way a large was the cat if the reddish fifteen feet shouldn't that be off hundred feet or more that would present some speech and not others beach and that's exactly what the town is left with with its arguments about leaning signs and stakes signs leaning on these olds or being held by protesters and that's really what's going on here there is no evidence whatsoever that the town ever tried to through evidence through traffic patterns or anything tried to show that community of statics or safety were implicate you thank you very much thanks to both counsel take the case