when the case is called with the attorneys who are going to morally argue please come up to the podium and introduce yourselves please call the next case one half hour to argue appellant you're going to have to budget from your time whatever portion you'd like to have for your rebuttal ok thank you very good will proceed with the morning your honor may please the court your honour's this case in this case the city prosecuted defendants for violating park district ordinance which closes all city parks overnight between the hours of  pm and six am this ordinance regulates conduct being present in city parks without regard to any contents of expression it's therefore a content neutral regulation with only an incidental effect on expression for purposes of the argument this morning i believe it would assist the court for me briefly to set out what is no longer in dispute before turning to the issues that are the circuit court dismissed the prosecutions in this case because it believed the ordinance violated the constitution on its face and as applied and also because it believed defendants had proved their selective enforcement defense with respect to the facial invalidation we explained in our opening brief that that ruling was incorrect the defendants did not take issue with our arguments in their worst response brief and we therefore submit that this court should definitely reverse the ruling on facial invalidation facial invalidation is strong medicine that requires either that the organs to be unconstitutional in every application or to be substantially over  but because the ordinance affects people more people that are not present in the park for purposes of expression but instead are therefore not expressive purposes it cannot possibly violate the constitution in every conceivable application or in a substantially overbroad number of applications so leaving aside if there are no other questions about facial invalidation i would leave that aside and move on to the other rulings which are the ruling the ordinance is unconstitutional as applied to these ninety defendants conduct and also that these defendants had proved on their motion papers their selective enforcement defense with respect to as applied challenge there are also areas of agreement here there is no dispute that intermediate scrutiny is the appropriate scrutiny and there's also no dispute that one element of that intermediate immediate scrutiny has been satisfied namely that there are in fact substantial governmental interests served by the park district ordinance those interests are addressing the time period than the middle of the night when there is the most r for crime against the public and against our property also giving the parks a time to a daily reprieve which serves the interest in conserving parks or future generations and also providing a window of opportunity for the park to perform maintenance and beautification which makes the parks beautiful for the current people that wish to use the parks there isn't any dispute from the circuit court or defendant that those are substantial what it isn't just  the other two elements of the as applied test and that is whether there is a close enough fit or a narrow tailoring between the substantial interests and the regulation and also whether there are adequate alternatives available to these ninety defendants we explain in our motion in our brief bad o'brian the test which applies to regulations of conduct with only an incidental fast on expression is more conceptually appropriate because this is the regulation of conduct however the to time place and manner tath according to supreme court precedent is is largely the same there's there's no distinction that's meaningful in terms of the elements and so both of those paths could be used to look at this particular case so turning to first the narrow tailoring question the  court would be a fact it so it was speculating about other nighttime rallies large gatherings that might not be able to use the parks over night and that might not have anywhere else to go but on in as a play challenge that was not appropriate the questions on the as a play challenger deep respect to these ninety defendants and their tailoring is whether the the ordinance restricts substantially more speech than necessary to serve the governmental interests and whether the governmental interests would be served last effectively with out the regulation in place it's not enough just to posit a less restrictive alternative the supreme court cases teach us that the least restrictive means is not required and that it very the government may select among alternatives and choose the one that it believes fits the best so long as it's not restricting substantially more speech than necessary as applied to this case the time period and when the restriction is in place is the time of the day when the u s people wish to use the park there and that includes the general public but also that includes people who are protesting in particular because those people in general hope to reach others with their message and that's just the time of day when most people are not around so in imposing the regulations at that time but they cannot restrict substantially more speech then  facts that would establish the park district need for maintenance to fill all thousand hours however that was we submit the wrong question and not only only address one of the governmental interests at stake it didn't address the interest in crime or leaving the parks you know giving them a daily reprieve for abuse but also it was seeking out the least restrictive means and we know from ward among other cases that's not required it's not a question whether the interest would also be served by fewer hours and in fact in the the supreme court decision in clark the supreme court case it's actually addressed conservation in particular and the court made very plain that it was not up to the judiciary to second guess what the park managers were doing with respect to what the park district's needs were and with respect to what ends would serve those needs but the circuit court seemed to ignore that and seemed to doubt that the park just took official could confidently testify regarding what the park district needs were but he in his affidavit explained that as part of his regular duties it's part of his regular duties to be aware of these things and accordingly he was knowledgeable about what the practice what the what the interests were of the park district and also what practice were necessary  i want to just briefly mention that the in their defendants briefs in this court they seem to rely on cases that predate the war decision and that speak in terms of least restrictive means so they say things like if there's another alternative that could serve or you know three things could be done it could be done with last time that's not that's not appropriate the regulation is constitutional if it doesn't restrict substantially more speech than necessary and if the government interest would be served to festively without it and we know from clarke that clarke says if parks would be more exposed to harm without the prohibition and with it the ban is safe from invalidation under the first amendment and we know in this case that the interest absolutely in crime overnight would not be served at all by moving the time period to a different the closing time periods for different time of day we also know that more people would be impacted if parks were closed at a different time instead of in the middle of the night and these suspended don't seriously dispute that the parks need to be closed at least for some time period they seem to take issue with the number but that's going for a least destructive means protesting without interruption twenty four seven at the intersection of will salinger act and the police allow them to be there overnight all hours of the day but on the night of october the fifteenth they wanted to go over to grant park and the police allowed them to march from jackson and with sal through the loop to grant park and they were allowed to protest there up until the time the park closed at which point they were told the park is closed they were given another two hours to comply with the ordinance and it was only then when they refused to leave these particular defendants ninety of them refused to leave that they were arrested and then on that i believe a week later the same thing played out counsel what about  particular that would also address the preservation of the park without having a complaint began during those hours i have a several sponsors so that your honor first that doesn't address all the interests of that one of the interest is that part of the hours between eleven and six are the most fraught with risk for crime and so you can use that one and says but if you let people in the park overnight you're going to increase the risk that they will be exposed to crime th will traps criminals and that the parks that the public in the park district property will be subjected to crime so it doesn't address all the interest to begin with but also we say cases including initiative and referendum decision if the court has explained that just because a different alternative would also be permissible does it mean that the alternative in question is impermissible and that makes sense that these defendants want an exception that would allow their particular conduct but if you make an exception to a different kind of exception there would be other people subjected to that who also would want an exception so the government is free to choose among different ways of addressing the problem and so long as interests one other point i know it's tailoring and that is that the test is not whether these particular defendants want would have you know an exception for them would harm governmental interest the stake the supreme court's decisions and albertine ian clarke and have friends among other cases make clear that for narrow tailoring purposes you have to look at not just the want the defendants or the court but everyone who entitled to avoid the regulation if it weren't in place and that's because no particular person has a special claim to first amendment and title it so everyone in a like position to these defendants who would not be allowed excuse similar situation now we might have been able to enforce the against it so long as it's not facially unconstitutional we couldn't force that against people like the drug dealers or the people that are not there first by the purposes but these people are not the only people that want to express themselves for first and the purposes so we have to weigh not just would bear harm conduct would harm whether they on the concrete of grass there would be other people who would want to use the parks too that we couldn't keep away as applied challenge there are ninety defendants here and the question is whether there was an adequate place for them to go and the cases this phallus that the alternative doesn't have to be the first or best choice it doesn't even have to permit reaching the same audience in this case there were a number of alternatives for these defendants they could have returned to jack and without which they have explored explained is the primary focus of their message the financial institutions that are there represent the one percent that's where they were protesting twenty four hours a day they could have gone back they also could have moved across the street hundreds of other people who were at the same rally in grant park as they work who were there after the park was closed so once they complied with the ordinance and went on out across the street onto the sidewalk they were allowed to be protesting these defendants these ninety defendants also could have fit on the city of chicago sidewalks these defendants also don't have any message and they've expressed nothing about graham park the best they could come up with is they wanted to be close to michigan avenue and reach the people the i ten or into might be there in the middle of the night and we submit in response simply that if that was the audience they hope to reach then it would be even better for them to leave the park at eleven pm and go out onto the sidewalk where other people from their movement were present to reach the people on michigan avenue they hope to reach again if the park ordinance is not facial invalid the park can be closed to everyone else so the parks are going to be empty there are the people that want to use grant park and there are not many people in grant park in the middle of the night to reach the audience for their message was found elsewhere but before turning on to the selective enforcement claim i just want to briefly point out that the circuit court also held the ordinance violated the illinois constitution and with respect to that issue we would rest on their briefs after just i want to point out that there is no reason that there is a different taft under the illinois constitution with respect to protected expression the test under the first amendment for intermediate scrutiny is also the test under the illinois constitution and defendants in the circuit court have not even bothered to try to explain why that there should be a stricter scrutiny under illinois constitution so that claim should rise or fall with the first amendment claim on the selective enforcement claim i want to just briefly explain the procedural const and of this case it was defendants who moved to dismiss these prosecutions they had the burden of proof to raise an affirmative defense of selective prosecution and to support it with evidence the circuit court incorrectly held on him of their motion to  iss that they proved their selective enforcement of fans and they were missing evidence on all the problems of their required case those bonds are they have to show similarly situated others receive better treatment and they have to show evidence not just that they were arrested because of their conduct but because of their methods we say cases that make a claim that it's not unconstitutional to prosecute selectively forward you know whatever reason it is only unconstitutional if it is done for an invidious reason and therefore proof is required to show that invidious reason the norm is selective prosecution unless requesting that you and board have reversed this period and the reason for that is that there are two elements to a selective prosecution defense they needed elements on they needed evidence excuse me i'm old and they even if you fit even if the circuit court found that there was a dispute of fact on whether the c p t intended to arrest them because of their message which we dispute but even if there was some question of fact on that element they needed evidence to support that someone was similarly situated than they were to them scuse me who was treated better than they were now they didn't actually put in evidence of anyone similarly situated in the cases require someone to be similarly situated in all material respect they point to the obama rally but they are just a number of differences between that rally and what happened with the occupy rallies moreover there is not evidence that anyone at the obama rally did something comparable to these defendants these defendants say well  rally was in the park after eleven o'clock two that's not the relevant time period because they were occupy protesters in the park after eleven as well between eleven and one the c p t did not in force the ordinance on these two occasions instead it allowed everyone who agreed to comply and conform their conduct to the law to leave the park and continue their protest plainly those people have the same exact message as these defendants but yet c p d did not arrest them instead it allowed them to continue protesting it was only when these defendants made plain that they would not going to comply with a lot that they were about it the supreme court decision and weights makes comply with the selective service requirements and supreme they said it was because they are their message that they were announcing because they had announced they were going to comply and the supreme court said no they can be prosecuted because of their conduct  refusing to comply with the law after being repeatedly warned so there was not one bit of evidence that anyone from the obama rally was in the park after one but allowed to stay there there was at a youtube video that showed obama people in the park at eleven twenty three so they needed evidence on that so that's why we say even if there is any kind of just beautiful fact they needed proof on all of it otherwise there is selective enforcement defense should have should be because they had their chance to come forward with evidence that some not someone who is similarly situated and they didn't do it now whether there's a dispute on the intent issue that's that's a separate issue but even that there is evidence there's there's no proper inference to be drawn that c p t intended to raskin because of their message and the reason for that is because there were people hundreds of people with the exact same message that they have who are allowed to leave the park and continue their protests good just shows that that was a millionaire restriction and not a time restriction and the supreme court in clark does not hold that only manner restrictions are appropriate it just pertained to camping it didn't pertain to the hours that camping could be you know you know that was allowed but it does not mean that there is no permissible time restriction in fact this supreme court in clark suggested that perhaps the time restriction would have been a better idea that perhaps twenty four hour vigils crew should have been prevented altogether which would have been left clumsy according to the court so that's it strongly suggests that time restrictions are constitutional as well and maybe even plan for a bill in that context but time place and i'd like to start by making sure we all understand the place we're talking about here the references in the brief and in the arguments so far have been to grant park and that conjures a picture of enormous  green areas obscure locations places that are hidden from the public view what we're really talking about here is a place called congress plaza it's bordered by congress parkway on one side by michigan avenue on another there's a piece of road that runs around right behind it and it is mostly paved itself there's a small grassy area there's a statue of a horse but it's mostly paved it is a highly visible area it is an area where anybody passing by either on the road on congress or michigan or on the sidewalk in front or on the other side can hear what's being said you can see what's being said it's also an area that in terms of public safety is indistinguishable from the streets surrounding it of the notion that closing that area is essential or necessary for public safety is if you if you think about the area we're talking about it doesn't make much sense again if we were talking about a deep recess of grant park that argument might have a little more traction but we're not we're talking about an area that is as public and as easily accessible to passers by as visible to passers by as the sidewalk itself out the advantage that it has for people like the occupy demonstrators is number one it is a large to leave the area that is off the sidewalk so it's not interfering with pedestrians it is an area where people can congregate can speak to each other can interact and it's an area where people can if they want to set up small structures if they want to speak have a public speaking ability they can do that sidewalk and i'll get to the ample alternatives and second the sidewalks crowded with people narrow are hardly an adequate substitute and in fact you really have to wonder what the of stinking and suggesting that hundreds of people because it was actually it was i think one hundred seventy three people one night who were arrested in the park one hundred thirty another night and the reason the numbers were so small is that some people had given up their first amendment rights to leave the park when they were warned by the police so it would have been even more had the police not run people to leave the park the notion that the city would prefer to have that enormous throng of people on the sidewalk adjacent to the road where pedestrians are having to move either in the street where there's a risk of people getting knocked in front of cars that that would be a preferable alternative even from the city's perspective doesn't make any sense at all  there's a it's just a sidewalk that's the problem that there's no park over there on the on the side of the street where the occupy people were there's it's not just a sidewalk although there is that too literally you know we we all were born and raised in chicago and there are number of times with let me ask you are you in agreement that there is not official challenge here no i think i think there is a facial challenge i also think that trying to parse the difference between facial and as applied under running the challenge does not have his own or her own conduct threatened or speech threatened but wants to speak on behalf of other people that's not the skids clearly the the occupy demonstrators are engaging in speech problems with the city's argument that there are two words that the city doesn't focus on and i want to i want to emphasize one word is narrowly yes to be narrowly tailored not just have some reasonable relation which is your honor's question sort of there have to be ample alternatives not just some hypothetical alternative they have to be ample and if you're thinking about what this demonstration was about it is it is people who are part of their message a key part of their messages is to occupy to be present on public property part of their message is being there full time part of their message of speaking to each other and to other people about the things that they believe  those are all key aspects of their of their but their speech and if you think about that speech and you think about the what's needed to have that speech i don't think you can find that this  is narrowly tailored to serve a substantial government interest and that the circuit court judge donnelly found that for several reasons if no i'll add another of them went to here's what i'm struggling with yes you have an ordinance purpose but chicago city hall the daily center this building are closed during certain hours now and may serve your purpose your clients purpose i can the protest in this building i think a critical difference is that the park is a public forum it was a traditional place where speech can be made i don't think this building would be considered a public forum or or city hall i want the courthouse i don't think it would be the parks are the quintessential public forum there the place where people go to speak their the place where people go and certainly grant park has a long history as as judge donnelly noted so you best be what's wrong with this with this ordinance and i'll give you the sort of a legal answer and slightly different answer it is not narrowly tailored to serve the substantial government interest and we don't dispute that keeping the parks clean and safe and all that is build a substantial interest but this is not narrowly tailored to achieve that nor are there ample argument is that closure impermissibly burden is the first amendment but i would say that if this were a one hour closure but say we have a much harder case then i think the argument that there is ample alternative form that this is narrowly tailor were more credibility but let me give you a different hypothetical suppose that the courts were closed twenty three hours a day for safety and maintenance and clearly this i don't think anybody in this courtroom would be defending the constitutional whatever that some reason it isn't it isn't it isn't reasonable if that's it is it is not narrowly tailored but the standard is not reasonable it's it is narrow tailoring and it is ample alternatives way i do respect for disagree that that is a standard because i think that then invites a sort of weakening of the first amendment protections the reason the standards are so strict narrow tailoring ample alternatives that because we're talking about very important constitutional rights and if you start talking in terms of reasonable dust i believe that considerably weakens the protections that those rights are supposed to have but let me approach you in a slightly differently to the  cases are quite clear that where there is a time place or manner restriction that burden speech and we clearly have that here the burden is on the government whether that's a city or state or the federal government to sh tailoring and to show ample alternatives they have the power and the reason they have the burden is and i think the rena case from the seventh circuit talked about this the weinberg case talks about this they have the burden again because interest amendment rights are so important they don't want judges or officials relying on speculation or sort of a general sense of things to uphold regulations that have this sort of impact and so you have to ask yourself has the  and the only thing the city said that to meet this bird is the alarms or williams affidavit and if you read that affidavit judge donnelly did not give it any weight to speak of and he was absolutely correct in that because it but yes i do believe that the practical option but but the other thing it apart from the the thread bareness of the williams affidavit if you look at other parks around the country you know just thinking about what you just said it if the city said that we will have an ordinance that allows the park yet the sixty third state to be open twenty four hours a day i can play feel free to go would say that not directly refuting but but yes in the sense that all we have to do it for example from the i believe all from the occupy people talked about they were keeping the park sleep they were  interacting regularly with the police to make sure that they were not causing a problem but that's that's not that's not a statement refuting the purpose of the ordinance and the needs of the government correct that's just sort of their statement that they are complying or voluntarily trying to keep the parks in good shape there's not a statement from a park expert saying that this is unnecessary but that's correct and you don't think there is any overreaching when there was no counter affidavit to mr williams this affidavit for the court to make a conclusion contrary to the affidavit i think it probably was well within his rights to say that this is a conclusion point to this case it is interpreted in illinois law and in fact an ordinance and what that case stands for is that it is not sufficient to simply state that there are sufficient interests we're not in this case contesting that is the city of chicago has an interest in the beautification the pipes i maintain in a safe environment that's not the issue but what we are contesting is that as the city has sufficiently shown through their alonzo affidavit which is the only proof that they set forth that those interests are implicated in this set of facts that they have failed to show that the occupy chicago demonstrators on these two nights in october in two thousand and eleven were in any way interfering with their ability to keep grant park clean or safe or maintained they didn't put forth any evidence of any cleaning schedules or construction that had been postponed that day or that there is proof of more violent crime between the hours of eleven and six on public property to be clear we're making it as applied challenge where was we are saying that we're not we're not raising a challenge but with respect to the deficiency you're claiming mr williams this affidavit what is your contention what would have sufficed as evidence to establish their interest that it's a legitimate interest sure that there was some kind of interference with the to show these incidences always have a higher percentage of occurring between the hours of eleven and six sure i understand i think i understand not your honor but i think would suffice in this case was for example some evidence that district ordinance which curfew essentially in next to the first amendment of the constitution our position is that it is insufficient for the city to simply say because we've decided that we need to close all the parks for this number of hours a day you have no first amendment right to be here this moment and this time and that's the only thing we're contesting in this case and it was their budget and this is very clear in the in the case law to set  some evidence some real evidence that there was an actual interference with their substantial rights there are significant interests right and they have failed to do that and it's important to know that they had ample alternative  rty in the lower court to provide counter affidavits to the affidavits which we provided in order to address the interests in order to address the deficiencies and you didn't raise the the judge donnelly and the parties agreed that it was more important to proceed on the substance of the claims and not to get caught up in the procedure we offered several times and the judge then also offered the judge the city several opportunities to feel have a certain to file responsive affidavits because we wanted to deal with the real issues and we were certainly willing to allow them the opportunity to respond to our affidavits and this was actually on two separate hearing dates they were granted the opportunity by the first amendment burden is is a red herring they had that opportunity they chose against it and and so that's why we are here so the city has failed to show the narrow tailoring of this because they have failed to show any nexus at all between the interest that they claim is substantial and and the application of the organs to these defendants the occupy chicago protesters in that area i do want to address for a moment the ample alternatives argument the city keeps saying ample alternatives that's not the fault test right the real test is ample adequate alternatives in this case there were none available to occupy chicago demonstrators those two nights in chicago and in order to truly evaluate that i think it's important to discuss for a moment what the speech here is what is good it was that occupy chicago was doing both those nights in grant park and it's important to know that the occupation of the physical space was it was not only  a method or a platform for speech it was also the speech itself and what i mean when i say that is it was a platform for speech because within the occupation within the holding of physical public space that around the space for the traditional first amendment protected activity leafleting the picketing the speeches the teach ins things that we wouldn't question right our first amendment protected activity and so that that physical space is where those other types of first amendment activity could proceed but also the occupation itself that twenty four hour physical presence was an important speech itself and it was important because the occupy chicago movement was it was taking a stand against economic inequality in this country was taking a stand against the the corporate the emphasis on the corporate speech and the power given to corporate speakers in this country now they don't have money to go buy an ad at the super bowl right they don't have money to illuminate a building with a twenty four hour big blue sign with its insignia like the chase building which is illuminated all night long the only way for occupy chicago to reclaim their right to speech and to emphasize that we the people have the right to twenty four hour speech and it is just as important if not more important than the corporate speech is to reclaim that space and they have a twenty four hour presence on the street and in doing that and showing that the message was so important that they would sacrifice their own personal safety there was value to that and when was it because there was coming to a point in this movement in occupy chicago when jackson was out was no longer sufficient and that's why the city put forth to potential alternatives for example alternatives for that night jackson lasalle or the streets outside of michigan in congress they're both absolutely inadequate was ours inadequate for a number of reasons but was effectively in the process of shutting down jackson unless south as an adequate return it to an amp for occupy chicago through their increasingly tried kone and rules and regulations which despite occupy chicago doing everything to comply with the city would was playing games with imus actually telling changing the rules one day i think i would do their best to comply changing the rules the next day making it more and more of a hostile environment there and so in the correct what i'm saying now is sad because the police have been systematically making it more and more difficult to engage in any kind of first amendment speech activity particularly occupation at that that was no longer an adequate or ample alternative for the speakers for occupy chicago demonstrators that was it because it was getting larger it was more  grant park and jackson must now work equally important to occupy chicago movement they were both part of the daily speech they had a presence at jackson and last hour every single day occupy chicago would march to yes we would go back and forth demonstrators did absolutely everything within their power to cool rockery with the police in order to ensure that they were not causing a problem with traffic or making it difficult for  occupy chicago considered themselves to be a movement of the people and for the people and that includes the people of the city of chicago in fact many people throughout the day would come and join them there is no interest in in making an those comes a point with the west michigan in order to move to the west side of michigan avenue they would have had to there was no space on the sidewalks of michigan avenue to engage in an occupation which again if they would have facilitated the speech which is their duty to do putting all hundreds of demonstrators just jammed along a sidewalk takes away from their message because it prevents them from being able to occupy prevents them from being able to counter this twenty four hours each and it also i think most importantly prevents them from even being able to talk to each other there's no reason to be able to tell you patient different if it's it's about occupying chicago and having the right to have the physical space how is this physical space how is the message different just because of the maybe shape of the occupation it takes away from the demonstrators ability to communicate with each other because they're all at different ends but the city not going to communicate with each other are they or aren't you trying to message to everybody else well there's still one per yes they did and those were very effective i don't know if you ever purchase a pated and one but being able to having to do that from one side to the other means that they can't actually have any kind of community in terms of determining how to proceed that demonstration in the democratic decision making i have occupy chicago is essential to their message and the fact that they did that publicly was essential the other point to this is also that it wasn't  part of this there was comforting to gather of people from different backgrounds in order to discuss and strategize about the about the economic system and about how to take back the power and it more to do that they had to be able to communicate and that why the space was so perfect for general assemblies and why they marched there that night and i believe by the police track to them there to begin with because they could is thank you for your honors in this case the the speech that we're talking about is the most fundamentally protected speech and is the supreme court tells us is that we hold a high a space at the top of the hierarchy of the first amendment jurisprudence not only that when the public for the most guarded of locations in this country in order to exercise your first amendment rights and the fendants really must understand the applicable legal standards they want to focus on their own conduct and the particular night in question on the narrow tailoring song and it's not just about what they would have preferred to do and the manner in which they would have preferred to do it because intermediate scrutiny allows the government it requires looking at not just the effect of the particular on everyone who would be entitled to avoid the regulation and i want to just read this from clark it is evident from our cases that the validity of this regulation need not be judged solely by reference to the demonstration at hand absent the prohibition there would be other groups who would demand permission to deliver and asserted passage by camping in lafayette park some of them would surely have his credible claim and forward the question is not whether those particular defendants would have harmed the concrete or whether they would have been impeding the interest in overnight crime it's about whether everyone who could avoid the regulations who's in a similar position would impede the governmental interests and it's not an acceptable answer to say we could have done it differently because the question is whether this is the way we did do it is acceptable and that question requires looking at whether substantially more speech the necessary has been impacted and it simply cannot be held that substantially more speech than necessary is impacted by closing the park in the middle of the night these defendants wanted to occupy in the middle of the night if a defined exception were made different people would have a clue the message depends on and exception to that particular regulation that's why the government can choose a different way of going about it and it's not just a focus of what these particular defendants write why the first amendment does not require the congo to allow occupation of the parks in the middle of the night the same with respect to the child it is still cased loss makes clear that it doesn't have to be the speaker's first choice for a day or preferred way of doing it there would be a question about ample time it is if it always had to be the way they wanted to do it obviously there isn't it's not the way they want to do it otherwise it would be cases about the speakers are not they don't have to have their first choice it doesn't even have to require reaching the same audience and it doesn't have to actually require them to express themselves in the same way we say cases and i briefs that a whole different ways so there was twenty four hour expression available to these defendants outside the city's parks they could have gone across the street onto the sidewalk it's strains credulity to so for to claim that ninety people could not if it on the sidewalks of the city of chicago and it there was this is also one o'clock in the middle of the night so these people there were there was other places they could have gone we expressed the plazas of the city are available we also explained that they could have gone back to jackson with al finally i just want to discuss a couple of the miscellaneous issues that they raised one in the facial challenge came up and i just want to express that i think show invalidation of an ordinance the test would be whether every conceivable application of the ordinance violates the first amendment and it simply cannot be said that the first the there's just no first amendment right to be in the park to play soccer to picnic to deal drugs to rollerblade numerous reasons people go to the park that are not there to express themselves and it does not violate the first amendment to close the park to those people so it cannot be the case that these this ordinance is unconstitutional in every application and the defendants have conceded they're not bringing a substantial robust challenge so the facial invalidation should be reversed and then on the burden of proof points this is again the procedur posture of this is that defendants have the obligation to come for without david support there formed of defense then the city met its burden when we came forward with our affidavit from the park district official and these are regal issues that require commonsense narrow tailoring and ample alternatives we are after david supported that we have these interests and that these interests were served by the regulation the court is not required to take evidence  whether in the middle of the night products are dangerous it can use the common sense and we say cases in our brief in which court did use common sense and said it doesn't take a lot for us to believe that the parks are more dangerous than the sidewalk in the middle of the night and that was a different occupy case so we satisfy our burden of proof weinberg which they rely on was a summary judgment case this is a motion to dismiss u regulation violated the first amendment rights as applied moreover defendants didn't even challenge the selective enforcement defense was improperly ruled on below we submit that that should also be reversed we