good morning your honour's i'm keith mormon on behalf of the lexington fayette urban county government which for convenience today and maybe for two as the city or the city of like clinton i would like judge clay with your permission to pretty reserved three minutes from the city of rexton its counsel became aware through various complaints that there were problems occurring with unsolicited written materials being delivered in a haphazard matter to lexington homes the council then undertook to study that problem they looked at it for twenty months they conducted three public hearings and they determined that there was a problem that these and listed materials were washing into the storm sewers and creating health concerns they were causing visual blight by piling up and yards and on driveways and they were also creating safety concerns because it would tell a burglar or would be burglar that nobody was home if there were many of these accumulating  arm kind of council also studied a similar problem that had occurred in the city of will and they studied how the city of louisville had dealt with that problem including an ordinance that it had passed and which had been approved essentially by the western district of kentucky as passing first amendment scrutiny and the city of lexington then passed virtually the same ordinance which only impacts unsolicited written materials that does not affect for example the newspaper that you are paid to have to live or to your house and it does not ban unsolicited materials it simply says they should be delivered in a particular place one of six places either on the porch between the main door in the storm door attached to the door put through the mail slot put in the receptacle or handed to the homeowner now as you can see all of those methods deal directly with the problem that had been identified if you have materials that are laying out in yards and in driveways and washing into the street then the best way to deal with that is to require that those materials be placed up close to the house on a porch or next to the door so we're here today to determine whether or to discuss whether that ordinance is constitutional under the first amendment as you know the district court analyze the four factors that this court set out in job and  determined that the ordinance was content neutral and did serve a significant government purpose but then went on to find that it was not narrowly tailored because there was a less restrictive means available to the government and that it was did not leave ample alternatives available because in this case the herald leader had put on evidence that it was going to raise the cost of their chosen method of delivery and so based really simply on that additional cost the district court found that it was not there were no ample alternatives available so i think  well aware there are many many cases decided on the first amendment but i think this court needs to look no further than its own decision in the job versus city of catlett's per case to affirm or to reverse the district court and hold that this ordinance is constitutional job as you know dealt with a ordinance from the city of cats burke in kentucky that precluded persons from placing leaflets on private cars parked on public property and the court there went through the analysis that was this narrowly tailored and as the court said relying on the supreme court case and taxpayers for vinson because the problem was these leaflets being placed on cars and then blowing all up and causing problems of course it was narrowly tailored when the ordinance says you can't place leaflets on cars so you had a direct correlation between the problem and the solution and the same is true here the problem is unsolicited materials poly up in yards and on drug ways the solution was you have to deliver those to a porch it can't be any more narrowly tailored and we believe that the district court got off track because it's slipped into an analysis of whether there was a better way to do this and as our supreme court has stated and or versus rock against racism and the taxpayer for benson as this court stated in joe less restrictive means analysis is not part of a time place or manner restriction analysis under intermediate scrutiny is the communication you're trying to transmit by making it more expensive to deliver him in compliance with the ordinance yes try that that's the fourth problem on whether there's ample means available and that was the herald leader's argument was simply based on expense the cases we have provided to the court have said that that expense alone is not an aspect of first amendment analysis that the first amendment guarantees a speaker the right to speak it does not guarantee a speaker the right to speak profitably and so here there is no evidence that the placing on the porch the attaching to the door the handing to the homeowner are not a good way to deliver the message in fact i would argue common sense says that's a better way to get your message to a homeowner is to hand it to him than to put it in a yard the question only question is does it raise the cost cost to the homeowner there's clearly a cost to the urban county government because if the homeowner doesn't gather up the papers and dispose of them then they wash into the streets and into the storm sewers which cause other problems for the city so yes there is cost both ways and the question then is that as the cost incurred by the herald leader alone sufficient enough to make this ordinance unconstitutional and there's no case law that would say that it does there's no case law that says if your preferred means of delivery is your preferred means because it's cheap that the you get to keep doing it all the cases say otherwise the kovacs opinion from the forty's the supreme court case that you can't get your message out by loudspeaker well that would certainly be a cheap way to get your message out but the court said cheap doesn't trump the constitution doesn't trump  rights to limit how things are distributed the same thing in taxpayers for events and it was a very cheap way to get a message out to put a poster on a lamp post but the court said the fact that it's cheap is not enough and is this course said in in job the fact that it it's cheap to put leaflets on to a car is not the controlling factor the factor is simply are there other means available this court also said in the m did they say that there is an exception in a written permission was given by the recipient to receive the material in seals yes then they are somewhere the court and the job case said that if persons who were parking their private cars on the street wanted to receive leaflets under their windshield all they had to do was put a note on their car that we welcome leaflets and the court said that was sufficient so theoretically your in the yard they wanted to if they did get that sort of permission then then they could do it would be fun and they wouldn't be in violation of the one that's correct your honor because if they have permission from the hometown homeowner it's no longer an unsolicited material it's essentially a solicited material as to that homeowner actually in the in this case there the discussion was the opposite where there was discussion and in judge caldwell consider the opt out right that he did you're right and opt out she thought was perhaps a leak less restrictive means she did and that was the basis for her finding an argument with oh it's the same thing as i welcome it or i don't you know either way a homeowner or a customer says don't get it or sure i don't mind it if it's on my porch well i would say it's not the same thing you're on because it who has the burden of shelf the herald leaders argument was that the city should undertake an education campaign across the city to educate people how not to have things thrown in their yard that they don't want and the question is does the first amendment required means is that the opt out i'm sorry by what means they should take undertake this education to tell homeowners that they can opt out that's what the herald leader argued and that's what judge caldwell accepted was that the opt out education policy would be a less restrictive way of promoting the government's desires that i would argue has never been required it is plausible  as the supreme court said in taxpayers for events and all of these alternatives may be perfectly good alternatives but the issue is does the one alternative the government selected is that constitutional and here it is people were calling and asking not to get the paper or not to get the community news and it wasn't being honored second while the community news had an opt out provision on it publication phonebooks pizza coupons other unsolicited materials did not and so there was no way to enforce that opt out only works if people are aware they're getting something if you have a paper being delivered to a bush in front of your house you may not know to opt out because you know you got it or if there's an elderly or disabled person who doesn't go out in their yard they may not know to opt out and finally the opt out i would argue creates a potentially worse politician because if the government starts calling its citizens saying tell the herald leader not to send your their paper to you that wrist and argument that they're now interjecting their views into the content of a delivery here it's completely neutral  arab leader wants to solicit people to request their delivery there's nothing to stop them and i say i'm out of time if there's no further questions all i'll sit down thank you thank you  the publisher of the lexington herald leader is that that's part of the purpose of distributing free newspapers he not only distributes the main herald leader that is circulated paid subscribers but he subsist but he but he distributes that in that main publication the daily newspaper in lexington to people who don't subscribe as a way of persuading them promptin marketing to them why they ought to subscribe and that's proven to to him and to his operation to be more effective than trying to go one at a time to to make personal contact with with with potential subscribers so this t m c product this total market coverage this free newspaper distribution both in the form of the herald leader itself and the community news which is the central focus of what the ordinance  impacts are time honored methods of distributing a constitutionally protected vehicle the expression the newspaper so long standing communicative tool in the words of the joke or this is one of those things that wasn't present there this is just fine in little this is the same kind of restriction the citizens voted for it or i don't know whether it was a voted on thing was it by the city by the city ok only be council anyway it was passed by the council in wall and it was up help it pass constitutional muster same virtually the same thing is that not the the two ordinances are nearly identical your honor and the and the district judge in this case went to great lengths in the twenty eight nearly twenty page order to distinguish  the passage of that ordinance in louisville and what then the district courts treatment of that there doesn't hold any water when in and looked at the third circuit decision upon which the court in louisville hung its hat and said look this doesn't even implicate the right to distribute newspapers and so to to try to say that therefore that makes the statute constitutional just doesn't hold water here and i'm going to show you why the analysis caldwell went through each step and everything she found no no need for a preliminary injunction no no carrying the burden until the one factor and she went to analyze least restrictive which cases ward and others say one needn't go there but that that has no place in time place and manner with intermediate scrutiny right and that's the only place and she said but it's we can't tell whether it's least restrictive so am i right that's how she in life that she actually won through two of the factors at the end the the requirement for narrow tailoring where she found opt out is a less restrictive in the words of the u s supreme court and less intrusive tool to address the problem that decision came after all the ones we been talking about after wards after taxpayers vs vincent and it is the opinion in two thousand and fourteen written by john roberts the chief justice in the mcallen case where he said that's exactly what nailed narrow tailings all about  his words there was no showing there by the state of massachusetts that the state had seriously undertaken to address the problem with less instrument in less intrusive tools so that's where judge caldwell went with that second part of the test to me that she she said less restrictive means judge roberts same concept of use the words less intrusive tools but that but it was all the narrow tailoring part of this task that has to be applied so she found a likelihood that the herald leader would prevail on the narrow tailoring test because this is in their narrowly tailored enough because the opt out was clearly there and the county didn't seriously look at using what had already been working really well in the market a million and a half copies distributed in the three months before the hearing only one formal complaint l with the paper as you know mr mormon the argument by your opponent is that in with with analyzing and under intermediate scrutiny one needn't evaluate least restrictive means so what cases there are cases against you on that or it cetera so what do you how do you best counter balance the mr mormons trying to say that what judge cobbler really did was  strict scrutiny and use the requirement in that test that that there hat that there had to be a finding of the least restrictive means when in fact what judge cogswell did was use intermediate scrutiny and she took a look at whether there were less restrictive or in the in the words of the supreme court in mcallen less intrusive tools available that the county didn't really take a serious look at to solve the same problem as as chief justice roberts said over and over and over again in mcallen it's not enough to just sort of say it's out there you've got it you've got to look and analyze it mr mormon argued to judge caldwell  that the intermediate no tailoring test doesn't require the county to sue to do a good job in analyzing the problem there just has to be a reason that it's held up to the light in a judgment calls made now what's what the chief judge just to send him a call and there has to be proof that the that the county took a hard look at less intrusive tools and that they wouldn't work and there was that out in the i mean i don't know i mean i thought that there were six ways one could distribute this without running afoul of the ordinance they put out six you're right your honor the one that you wish to use your client  doesn't fit within those six it's the time honored way of distributing newspapers in this country by putting throwing them in the driveway sense from the time newsboys did it on bikes to the way it's done clearly out of cars by people who  d for which there's no subscription and visual last exam thing with a lot of i would that be fair it's it has pages of stories news stories with a lot of ads but it qualifies as a news product because it's an expressive tool and judge caldwell so found that it qualified as not commercial speech but you got some stories in there we have stories in but of course the ads can be you know commercial as they are in the main edition of the paper and judged by yes there are a lot of a awful lot of ads to more and more these days more and more ads and listen listeners in the main circulated paid subscription newspapers all across america and this ordinance also applies to the free distribution of that main newspaper in lexington their leader which is lord free to get subscribers to to come forward either warden or any other supreme court case indorse is the concept that you have to that there has to be a utilization of the very best w what would be a better way to do it that's not the test well you're right against submit that what the social united states supreme court did more recently than all these other cases in mcallen versus coakley says that the court's supposed to do exactly that look for a a a tool that burden speech last substantially than the one chosen by the government so that the government is not completely free to pick any any burdensome tool neutral we have left for another day pending discovery and that's what's important here this was a temporary timeout by the trial judge pending discovery and a full development i would prove that it's not appears to be content neutral and for the purposes of the argument here today we're conceding that it's content neutral and therefore the test three part test applies the judge ca from ward a regulation must be narrowly tailored to third the government's legitimate content neutral interest but that it need not be at least restrictive or least intrusive most definitive statement on what a narrow tailoring is had for other justices on the court join his opinion and he went on to say now they don't have to pick the least risky intrusive one but they have to consider take a serious look at whether there are other lesser intrusive tools available to accomplish the same thing and in this case the evidence is uncontroverted that's what judge cobble had in front of or that this county didn't really take a hard look at using the opt out the opt out was working according to the testimony mr friday at the hearing one complaint in a million five hundred thousand of these papers delivered in the three months before how do you get around different about this case is we don't have a time honored mean means of communicating to the public you know we know we're dealing with somebody that was putting flyers underneath wiper blades on cars this is a newspaper being distributed in a driveway the way that it's been done in this country for one hundred fifty years so we have that it's after it addresses only really the convenience of the property  having the yard littered the city's ordinance addresses its interest which is not have a knob this stuff there at all in a place where it could easily end up in another place and just be generally unattractive or dangerous litter in the in the area in which they were dropped so i'm not sure how opt out gets to be so terribly relevant to this dispute or so much better because i don't see how it serves the city's interest i mean your notion that there's been one compliant would establish would tend to back the city's interest in doing exactly what it did stronger not weaker the opt out again was mentioned and backed in response to your question judge givens and judge clay as the op that was another thing identified in the last paragraph to joe r and just so we're talking about competing interests and understand it's not just the government's interest in controlling litter that newspaper as a constitutional right to to reach it readers by a variety of means that's been protected that has to be balance that has to be built and that's what we went through in the in the in the case of the sister newspaper against the raleigh durham airport authority and judge wilkinson in the fourth circuit said that's right at some point the constitutional right to do to deliver newspapers to readers however the newspaper chooses to do it has to be weighed and can't take a complete backseat to what the government professes or interests especially when those interests can be do dealt with in ways that are less burdensome on the first amendment right to distribute newspapers so those interests have to be put side by side her discretion in calling a temporary timeout and granting the motion for a preliminary injunction just until we can get to the trial and the judge's ruling of the trial for should be affirmed thank you me follow up and i'll be jumping around but on the the question of can a newspaper choose how it wants to deliver no matter wot that's been answered by this court in the contributor versus city your brentwood case in which that involved the homeless newspaper and they wanted to sell it by walking up to cars at stoplights and this court said well that isn't the effective way for you and we realize why you wan it but the fact that it works for you doesn't mean that we have to let you do it or that the first amendment has to let you do it and in that case the court found that there were other means available to distribute the newspaper so there is no argument here from our point of view that the government or i'm sorry the newspaper gets to deliver things however it wants mr friday testified at the hearing that while he didn't think it would do it if he wanted to this the arab leader could drop its mailer from a on a low flying plane but the supreme court says no of course you can't so there are limits on even how you deliver a traditional newspaper the arab leader frequently talks about the time honored tradition of dr delivery there is no evidence in the record that there's a time honored tradition of dr boyd delivery i think today they even said going back one hundred fifty years i don't think there were even driveways one hundred fifty years ago so i don't think that that you can read i don't think you should recognize a driveway as being the same type of public forum as a as a street or a park which is really what they're asking you to do and this court found in jo mcmullen case that's really the only case they rely on for this idea that you do you should look at the lesser intrusive mcmullen cases are really unusual it's the thirty five put the boundary around abortion clinics the interesting thing there is that boundary included sidewalks and streets so it was precluding people from being in traditional public forums in order to deliver a message when the court called the restriction truly exceptional really exceptional here ironically the ordinance requires and promotes having these things deliberate to a traditional form a door or porch and not left in the yard and i see em