playing all right mr kirk or we'll hear from you st and please the court in this rather somber time in our history i think it's worth quoting what chief justice hughes said in cox versus new hampshire because i think in a special pertinence to this case and to this time civil liberties as guaranteed by the constitution imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses the authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways a never been regarded as inconsistent with civil or civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend and i think this case involves an ordinance in the city of st louis that was adopted in reaction to d a case decided by this court to stall case and we're at the confluence of this of several streams of judicial erudition because i believe judges college in and the woman were on the panel in the stall case and i believe judge college and wrote the policy ryan case which we rely and part  paraphrasing said that if stall had been standing in the highway stall would have been a different case in brief the plate if ms langford participated in a mass march in the city of st louis on market street the march proceeded without a permit the march proceed it and it was ending it was proceeding west on market street it was breaking up and the police were trying to reopen the blocked streets and they directed ms langford and others to get out of the street ms langford elected not to get out of the street even though people around her immediately were able to do so and she chose to remonstrate with lieutenant boyer who was trying to get the street reopened and all he wanted was for her to move to the sidewalk where she could have continued her remonstrance with him about the perception and role of the police  when she refused to obey his directive he arrested her for impeding the flow of traffic and just of being his order in the city ordinance which is quoted text is quoted in the brief as an expensive arrest marvelous job of trying to torture the text of the existing ordinance into the stall matrix i think they have failed i think side by side comparison of the text of the ordinances show that this current ordinance principle that over breath analysis is strong medicine to be sparingly applied it disregarded judge clark about whom we were speaking yesterday today i come to praise him he found th very ordinance was not they are overbroad and the admittedly his analysis did not explicitly address the st amendment context but i submit that the text of the ordinance is very close to the text of the arkansas statute that was him upheld by this court in doing versus city of little rock i i certainly cannot help but concede that there is no express see enter culpable state of mind provision in the ordinance the the preamble to the ordinance as as it was adopted by the city's board of alderman i think makes clear that the ordinance was intended to prescribe only intentional conduct knowing conduct that impeded traffic the purpose of the ordinance he has to promote the safe and free flow of traffic and it has three in or vehicular and there's langford was at liberty to go back to her parking lot better car plastered with signs about how bad the police are and drive down market street if you wanted to she could have just gotten onto the sidewalk and continue her or her idiosyncratic protest against the police is darker yes if you are in this as i understand the facts here the the this stretch of market street had not actually been reopened the police were in the process of trying to reopen it to traffic that's that's correct there are so so does he think that this ordinance where there is not traffic actually present that someone would have the ability to obstruct the think it's still at the moment the rest here well you know that certainly the plaintiff's argument in part and in my response is that if the if someone blocks stands in the middle of  street or highway and the police cut off the traffic to protect that person or to prevent injury i still think that person is impeding the reasonable flow of traffic and i think  boyer's affidavit clearly said that there was traffic in that he was trying the traffic was unable to move westbound and there was evidence that traffic had started to move eastbound shortly after  certainly agree that there was no traffic in her immediate vicinity when she was arrested with an eye i think it's i think it's has us to call to say that because the police blocked the street because people were in the street that those people in the street are not impeding the flow of traffic i think that the duty of the police when they perceive people in the street who are in at risk i think they have to they have to block the traffic but what's the causation i think the cause certainly is the conduct of the people in the street so i think that if the if the only way the ordinance can be enforced is to wait until the person in the street is actually as i put it in a brief between the headlights i think that frustrates the purpose of the ordinance and so i think that simplicity the city is victim wasn't evidence about the westbound lane here suppose the evidence turns out that she was not impeding traffic would that mean that the ordinance is unconstitutional or just that maybe she has a th amendment claim well if she was not in fact impeding the flow traffic she's not guilty you know it i think it's just like just like in the dewey arkansas case where if the noise was not in fact i can't remember if phrasing of the statute loud and raucous was not in fact that then the defendant's not guilty so i don't think that's relevant to the constitutional damages but i submit that the text of the ordinance is plain it gives fair notice it compares very closely to the ordinances and statutes approved in the barry but us supreme court and agnew versus district of columbia the c m to requirement the absence of a specific textual see enter requirement the plaintiff has it both ways that they say well there is non and even if there were it wouldn't help well i think there is one in this very court of appeals has said that city penal ordinances care or are subject to such a requirement and the city is bound by that and frisbee versus scholtz the supreme court of the united states and you know picketing case involving abortion protesters accepted the representations of the prosecuting authorities as to the scope of the ordinance here if i may going back to the point about whether she was impeding traffic if the traffic wasn't moving you say well that must count because otherwise if the police blocked the street in order to accommodate the pedestrians are you say that would be the reason why city councils impeding but you get anywhere close to a vagueness problem there if the person doesn't know that the police are trying to reopen the street or that the police of close the street because  while you're on mine my response that is twofold number one i am guilty of or practice i was out of out of practice too long and i could have made the record clearer on the state of the traffic  westbound but i don't think that makes the ordinance vague i think that's the same issue that we just addressed i think that the ordinance is clear i think it's a question of whether in fact ms langford was guilty but i think lieutenant boyer had probable cause to believe that it was being violated and i think that's the standard he had he did not have on bridal discretion and so i submit that the ordinance is not vague it is not over broad and  i think that you know that the officer had no more discretion in forcing this ordinance than in enforcing a speeding ordinance and officers may be wrong about whether somebody speeding or not they stop their estimate of his speed but that doesn't invalidate the ordinance and i think that you know that is the situation the city judges lay in posner d and i never thought i'd use those names in the same sentence before but they municipalities for not accommodating permitting of spontaneous protests it's pretty difficult to figure out how we could do that except the way we do do it which is if you stay on the sidewalk and otherwise obey the traffic laws you don't need a permit and so i submit that the ordinance is valid it is not over broad the district judge far exceeded the equitable authority that it has and we submit it should be reversed and i will reserve my should regulate traffic but they cannot categorically ban people from using the streets and sidewalks for speech which is what this ordinance does on its face it applies to all streets and all sidewalks at all times and it applies to the use of those traditional public for for all purposes and because it has no exception whatsoever it has an incidental but quite large burden on speech and in this context where st louis has no workable permit system there is no way to avoid enforcement of the ordinance taking what jaggers said earlier about close streets the whole women's march was illegal from the outset and the police just tolerated the speech until they didn't any more so anyone who wants to march or parade or stand on a sidewalk and we decide is always risking arrest and is always dependent on the government's noblesse a bleached on the unfettered discretion of police and it's true that absolutely the police often do tolerate speech they let some expressive conduct go on without interfering but when they decide th over it is and there is nothing that an individual citizen like miss langford can do about it or even tell ahead of time what will fall within the law is incredibly large and uncertainty and it mentioned several cases today but he did not discuss the case law that it is most amendment and then i'll turn to due process and discuss why this law really isn't any different from its predecessor struck down in this stall case so st looking at cox versus lisi and in that case the supreme court examined almost an identical situation in that case the protesters had congregated with others in downtown baton rouge and the sheriff tolerated that action for a while while the group marched in saying and gave speeches just like happened here and after a while he commanded cox to  long cox refused and was arrested and charged with a couple of offenses including obstructing public passage is a louisiana law that looks pretty much just like the st louis ordinance that issue here like in st louis the baton rouge authorities sometimes allowed expression and sometimes didn't and like here that law did not mention speech in particular and in fact it did contain immense requirement but the court still applied the st amendment and found the law wanting ultimately the court such a system by selective enforcement of an extremely broad prohibitory statute unquote but that is exactly what st louis as done here it has an act of the law that looks the same as the law issuing cox and then given its please no objective criteria by which to decide when to enforce it the supreme court made clear recently in the united states versus stevens case that at least where speech is concerned governments can't pass an overbroad law like this one and then just promise to use that responsibility which is what essentially  very broad on its face and regulates everything a person might do in a quintessential public forum like this one including but not limited to speaking but now it has adopted a test and discuss that test in the colon so why can cox  mcallen sidewalk counseling law the law creating a buffer zones around abortion clinics did not mention speech in particular it applied to a specific segment of sidewalk and it was enacted nominally to prevent sidewalk congestion just like  st louis is interest is here but the law had an incidental burden on speech on people who wish to engage in sidewalk counseling and so the court applied intermediate scrutiny this court has since repeated that mcclellan rule  particular on the rd prong of the intermediate screen to test the tailor and that's required as the culling court put it intermediate scruton t demands a close fit between ends and means so here's st louis espouses an interest in traffic safety but there is really no fit between that interests and this incredibly broad law there hasn't really been even a serious attempt at making a fit st louis could have limited enforcement of the law to certain streets you know well your honor if you look at the law that massachusetts enacted in the wake of mcallen i think that's a good example of how a law could be narrowly tailored without being unduly you no longer technically as you mention all city streets your honor although the city of course has an interest in regulating traffic it also has to allow for the use of for a st free speech and assembly on quintessential public forums like streets and sidewalks so it has to engage in kind of a narrow tailoring it could as you suggest create a law that applies to small streets if there is a danger of something more than what happened to miss lynn and for its case where is the court pointed out she was on a close street she was also not in the middle of the street but in a curb lane and as we've mentioned in the briefing of course the law applies to both streets and sidewalks and so it's under the law as written if you wanted to for example pass out leaflets on a street corner in in the city of st louis and somebody slows for an instant to take a leaflet from you that is impermissible under this law that is illegal and there are any tools for the police to decide when to allow that kind of thing and when not that is a kind of arbitrary in encouragement of arbitrary enforcement  most cities if they have an ordinance like this one of blocking traffic law they also have some kind of permit system so that a person can tell from the outset whether his or her speech is going to be allowed or not allowed but in st louis well i don't think that that's what happened here your honor but even if it is no i don't think so not under the st amendment because the city hasn't engaged in the kind of tailoring that is required of a law that that record demonstrates that this is that a continuing problem in the city of st louis that the city engages in arbitrary enforcement of this law and that all protest marches are as the city's police command testified and as that testimony was submitted to the square in this case all protest marches are illegal from the outset but just permitted allowed by police when they feel like it that kind of leaflet you said they would be guilty of violating the ordinance and should only protects reasonable movement in that case of pedestrian traffic i'm not sure that they would be enforce that testimony as part of the record any any march that takes place on any street is illegal from the outset whether or not there is traffic waiting and as the court pointed out there is no evidence in this case that there w that i don't think that that language and the law states that were nets for either vagueness or the the great burden that it has on speech and traditional public or well if there was no traffic waiting but if she was not guilty and she didn't violate the ordinance you know what i'm trying to understand is if you're really arguing this woman didn't violate the arguments although he arrested her for it why isn't her mcallen case that law was not aimed at speech it was just presence on that area of the sidewalk and yet it was very clear to the supreme court that the incidental bird and version of intermediate certainty applied to that statu and so it should also apply here especially where the kind of conduct that is criminalized here is limited to conduct in traditional public fora that are traditionally held open to people you know just make their views  i remind the court of justice white's comments and cold in the kentucky the principle is not designed to convert into a constitutional dilemma of the practical difficulties of drawing criminal statutes both  general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prevented i think common sense tells you you don't stand free traffic but there is no categorical ban on speak record i think you know ms stephan understandably put her spin on the record but i think that the record clearly shows that when you have thousands of people all taking over a street in broad daylight a major thoroughfare under this ordinance it is it legal all right away but the city does have a permit scheme and that was part of the record also the city's approach i had mit it can be somewhat confusing because the city attempts to deal with spontaneous un permitted protests and marches by allowing them to continue but the city does have a permit ordinance and this ordinance is aimed at the impeding ordinance is clearly aimed specifically at conduct and clearly aimed at promoting public safety by keeping the streets and sidewalks clear of obstructions and the example of the leaflet here and the citizens stopping to converse with the leaflet here you know i think that is a distortion of the plain meaning of the ordinance about the commonwealth points to a substantial public safety risk that is however an example of its failure to look to a less intrusive means any such obstruction can readily be addressed through existing local ordinances and he quotes no person shall stand or place any obstruction or any of any kind upon any street sidewalk or cross walk in such a manner as to obstruct a free passage for travelers there ought so chief justice roberts is alluding to this shelly that that's a very strong case that if it applies is very strong on their side of the d equation but i think this is cox of the new hampshire and colt and be kentucky not cox the louisiana which ha exemption a content exemption for labor picketing so we ask that the district court be reversed and i'm glad it didn't take thirty five years for me to see judge woman again the years do pass by a good college and probably tired of me already though well we