so start us versus the city broke a morning may please support we're here about an ordinance that the city of brookhaven has adopted it is a content based ordinance i think i guess my problem with this case is that it seems to me that if we if if we analyze it as you argue that this is a first amendment case and we apply the it seems to me we apply the written test and that this has really informed the public that central hudson has some teeth and i'm not so sure rotten has the teeth that central it's in as written would apply would assume that the law's purpose was unrelated to suppressing a message central hudson of course when you're regulating speech you are absolutely regulating the message the advertising in this case the city with this you know order to allow the operation of this kind of business and in portions of the jurisdiction and polite censure for it it's not a ban and it says that it's to regulate the secondary effect they compiled a big legislative record to support that it's not every burden under the case a lot to do that what am i missing will judge this particular first of all those th legislative record we're talking about two cd rom's with as you as you point out hundreds of anecdotal studies and this which is what the federal courts have told him they have to do that well in those deal with entertainment adult entertainment  they deal with bookstores video arcades strip clubs what the city of brookhaven has done it is created a brand new breed of what it calls essentially it's a business a sexual device shop  see year on the the week before the third saturday in october to celebrate alabama's annual victory over tennessee and i can assure you that when i go to buy my cigar i've never seen sh running people peace and tranquility in the kingdom he uses and that's fine nobody stops you with that the manner in which you place your product or you put them in the store where you put them at the front of the back whether you whether you put them all in argument according to the supreme court saying it's a doubtful argument but it's there seemed to me that this is a sort of a volumetric they chose to define york your store by what you do write and so it's this special prominence that you say legion advertisement right right in the record reflects that judge they you know they they looked at the content of the commercial side the twenty  outside the store outside the store and determining that the store is in fact giving special prominence to these devices or that ordinance speaks to whether it features features but the truth of the right right yeah i agree with that and it features one meaning of that would be to give special prominence to it you know i look at the photographs in the record of of the shelves it i'd be surprised by an argument that devices in a back room at back in the stores broken into different rooms one could argue and believe that that's not featuring their tucked away in the back of the store and yes the shelves are stocked you know i'm confused by this argument so are you now saying that your client does not feature and therefore is not engaged in first amendment activity or is well judge we think the law is vague we know vs the problem with that the vagueness argument is there's no facial challenge to vagueness and it when i look at this record and what your client does i don't see the vagueness we believe there is a fate maybe somebody else it would be someone else  be uncertain but the supreme court the united states has said that that an actual plaintive specific inquiry and looking at this record i don't see how it's vague or uncertain as to you  are saying it's also beggars applied to us it seems to be the city seems to say in the court it sounds like it might be agreeing that just that the number of devices translates into whether they are given special prominence to the devices  that if the city were going to do that they could write a law that says that you know if you stock more than five hundred devices years sexual device shot now that would invariably lead to another and they haven't interpreted regulation they did they did after the deposition we took of mr song where he said for a business the size in the scale of start a sort of similar size i would say about maybe one hundred or so devices might be a threshold and then yes they submit an affidavit on summary judgment that quote unquote narrowly construed their warden it's our position under state law under george state law they are not permitted to essentially recast the city's ordinance that's sixteen hundred eighty eight sexual devices on offer at stardoll if we were contemplating whether to to begin with that number but we wouldn't we wouldn't dispute that there were there were  least a thousand some of these very small that's misleading a little bit but that is may not surprise me that we be that as it may be getting sick i'm having trouble with  your take on the occasion of the first amendment is implicated in all by this is only right relation and my concern is that if we agree with you that the mere definition of your company by virtue of special prominence and it's a definitional thing that raises the problem that we agree with you it's the first amendment is going to commercial speech is going to be involved in any store that behaves almost in any fashion they have they have first they ticketed the business repeatedly they moved the holding contempt in state court and as evidence they are pointing to the content of the signs on the windows on the mobile signs on the have please the court this case is about a recalcitrant sexual predator mr morrison who set out to do something that was prohibited by brookhaven law and continue to do so and he basically says three things one i won't operate in any of the seventy three locations in the city of brocaded where i could do whatever advertising whatever signage in his many thousands of sexual devices i want then he says number two i won't reduce my inventory to below one hundred sexual devices even though if i did so i could keep never did and now there is a business that has long done that it applied for an update and a license correct that's correct so if they were in a proper one of the seventy three proper locations that's not too close to residences and so forth they could do all the things he's talking about so it's clearly not a content based or a speaker based regulation all the cases like surround that he talks about are if you market into pharmaceutical companies and certain data from data miners that applied across the board lorillard tobacco every merchant of tobacco has to comply with the specific display practice is in fact the only reason that the district court assumed that there might be a first amendment interest at play was because under lorillard there were specific regulations about display practices for cigarettes amendment activity it involves squarely went rotten and should be upheld absolutely your honor and i think on that principle question which i do want to focus on for just a moment about whether the first man is implicated by this sexual devices saw versus georgia that we cited from the supreme court rejected the idea that the sale of sexual advice is implicated the first amendment judge ross found that in her thorough eighty page district court opinion but judge clemens or today points up the real reason why there is no limiting principle on that idea if the idea is that you feature a product and by giving special promise to it no matter what the product is the thereby trigger a first amendment scrutiny then the then every single business would argue that every zoning avoid that problem is to write your ordinance differently well your honor we could say you don't have to use features right potentially your honor but think about it this way let's say we define a liquor store as a stablished that regularly offers the alcoholic beverages or barbershop as an established that regularly offers the service of giving haircuts where you're still engaging in that speech of the offering and for the transaction another way to do it would be stops or sells stocks ourselves that's true but in that case we're still in the same boat where every business is going to do something of speech incidental to the selling of their products it's almost impossible to do segments or gets what you refer to it that's true but that's why we have cases like rumsfeld and other cases that say only when speech is inherently express events why i'm just defending why the district court would game and it goes it goes in the medical device business has crutches and wheelchairs and all the kinds of things that i believe would be within medical products and it is primarily dedicated to providing they could possibly make that argument your honor but how would you would you what would you do to them would you make them go get a license under this ordinance if they were primarily dedicated to providing health care products  issue thank you guy you're in the second sentence of the definition is really just a recognition of reality in other words drug stores pharmacies and other establishments primarily dedicated to health care products and services you don't regularly feature any sexual devices and halves of i want to know what what happens if c v s suddenly discovers that the best way to make a lot of mine is to sell sex toys if they did that then they would likely fall within the exception i mean that's why c v s is not right to regulate it because i mean you could have a drug store and it would be would be you know giving special promises to actual devices and you wouldn't run a lawsuit against them if they fit within the exception of the that no you're right we would not bring a lawsuit against that entity that is just an animal that doesn't exist and that's partly why the second sense is really just a recognition of reality that pharmacies to do not give special prominence to it on the flip side stories like this based on the pictures that judge pryor was referencing earlier in the argument don't dedicate themselves to medical products in fact i think the district court's finding on those two points is streaming important because there was no evidence that there was any ban on advertising or display anywhere in the ordinance that was at page thirty eight of the district court's order she also found pages one for a record entry one of four pages twenty five to twenty six of the order that there's no evidence in the record that sexual devices quote are featured in any way at any pharmacy and quote in the city of brookhaven so that's why they are you sure you're challenging them  renowned well your honor the district court probably concluded that signage is one way to give special promises something but also as you mentioned you can have a huge wall from floor to ceiling that doesn't have any signage but it just has a thousand dildoes it very much would fall within the realm of of what they're there doing that just the vast quantity and numbers show that they are getting special prominence is something that sort of like judge scalia's concurrence in after p b s vs city of dallas where he said it would be bizarre if there was such an animal where business regularly featured something but then they did not carry that product or make that a central focus of their business so this is language this language by the way exists in dozens and dozens of adult entertainment cases for example those defining adult cabarets as an establishment that regularly features new dancing you have that regularity requirement because you don't want to have the occasional salome's dance of the seven veils or some hair production trigger the regulation but what happens is the first minute scrutiny comes into play not because of the definition there's no case law on the regularly features part triggering the first amendment it's because the underlying new dance scene or expressive conduct it's inherently expressive the it conveys a certain message is what triggers the first amendment scrutiny and arrest and so there are a lot of cases your honor that makes those cases each year so they don't need to get into the argument about whether it features or not because the underlying conduct is expressive that's right but that doesn't mean necessarily that they they wouldn't still have a question if the underlying conduct was expressive but the ordinances regulating the featuring other products in the district courts looking at the signage it's possible but it's more attenuated to any first man interests it's more like a run of the mill is zoning type of business and the business is defined and others where they say adult novelty stores are you know are not engaged in first amendment protected activity even though they're selling objects as an sewall the case that the supreme court decided by dismissing for  substantial federal question the claim that the salient and the selling of sexualizes like these triggers first amendment scrutiny so we think that was the proper holding she did do the alternative analysis based on the lorillard case that she cited about actually regulating display practices but you're correct we would win under either renton or central hudson and she elucidated that pages forty to forty five of her opinion let me ask you this how does that how does the display of sexual devices as opposed to the sale of sexual devices relate to the goal of preventing secondary effects well and that your honor the business the goal of preventing secondary effects is geared towards the business as a whole it mr mr wiggins has you know artfully tried to make this about the city doesn't want these unsexual of the devices to be displayed or featured that's not the case it's not an individual regulation of sexualizes or they would have prohibited this sexualizes under the circuit's authority all of the same springs case that we were about a couple months ago they didn't do that the secondary effects is from the operation of this kind of a stablish mit so for example i wanted to point this out in the record we cited page twenty three of our briefing notes six a number of places he says that these studies deal with these types of stories that's not true on the first of all as a national matter nothing in the secondary effects case while requires the government to have research that targets the exact activity that they wish to regulate but we do have that anyway at page twenty three footnote six we cited a series of cases that uphold adult retail only stores they don't have new d n c and they don't have peep show booze or on premises video operations that still flying negative secondary effects one of those is the world wide video of washington vs city of spokane case from the ninth circuit the entire legislative record on retail stores that all sell adult some adult media and sex toys was included in the city of brookhaven voluminous twenty five hundred page legislative record some examples on answer exhibit four which is the cd rom that contain the legislative record this is that the documentary five dash for the sixteenth p d f file and that was a study out of fort worth texas done by a national top notch lane he's playing for and called duncan and associates where certified real estate appraisers overwhelmingly concluded that adult novelty stores and adult media stores adversely impact residential and commercial property properties in the proximity of where they're located didn't do any of those sources pertain to the regularly features aspect that you have here well your honor that they don't the studies don't get into the featuring but they assume that a store that carries a thousand sex toys actually you know advertises and features them and holds themselves out as as that type of the stablish night and the case is fine secondary effects from these retail stores that  have sexual devices in there in the tour as one of their main product this place and some of the others for example that's ubiquitous in the industry at record entry sixty three dash for mr morse and deposition transcript from april third two thousand  fifteen page fifty six lines fourteen through twenty four he says well i've opened up thirty five adult stores and seventy five percent of them sell these sexual devices in other words it's not as though when you reference an adult book store in the case or in the studies that it separate from establishing themselves and is documenting the adverse impacts on the community from a retail sex shop that sold many things including sexual devices the base numbering on this just for the record is that twenty seven seventy six twenty seven seventy nine twenty seven eighty on that and then there was a jackson county expert report which was document or p d f number fifteen on that cd rom seven fourteen seven fifteen talking about the higher crime rate that was associated with this chain of stores this lines denson which is a retail  very clear that when a party engages in conduct that's clearly prescribed by statute even in some conduct that's clearly prescribe by the statute that he cannot complain of vagueness from the statute and that exactly what we have in this  does and that's like this case the ninth circuit there said look it's not illegal to be an adult cabaret dancer in brookhaven it's not unlawful to be as actual device shop to write would be to do all these things carry thousands of vices it's illegal to do so within three hundred feet of a residence hall residential district or without the license and the court said there is no rule of constitutional law that says tell me how i can have thousands of sexual abuse thank you mr bercow and say thank you we understand your case thank you  minutes thank you started as did indeed ask the city for whatever licenses the city deemed were proper for his location you know when it when it obtained a license as a tobacco shop right write an occupational tax out business never saw this kind of license never never applied for their license to operate a sexual device shop that appears to me to be indisputable where on this record that's that's correct they did not file a paper application for an s o b license they were trying to be was quite a percentage store and i hear this repeatedly this kind of establishment you cannot come in and give a step and shut down and take it in establishment just because you think it is manipulating the adult entertainment re not manipulating the store doesn't need to sell if that if the store is operating that kind of business that is regulated by the zoning ordinance and for which a license is required for which it hasn't been applied you can certainly come in and shut it down the only issue is the saying there is nothing wrong with that operation  this is a this is a high end store that has good operators they did everything right the only issue in boils down to this judge prior are they giving special prominence to the devices now how many know what color they are are they giving special promise to the devices if they were not given special prominence to the devices they do not need in the s o b license they can operate and you talk about renton it renton assume that the justifications unrelated to the message and i thought europe but you have a claim in this case that this is a first amendment violation right we do judge can you do because your business engaged specially features sexual devices and now you seem to be arguing that you don't we do feature we do not feature that's a vague term we do sell try our business we're trying not to feature them it is part of the inventory is part of the concept here's what's lost on me i understand why is it that a store that primarily sells help care products can sell ten thousand sexual devices what is why is it assumed we have a record that t drug store that sells ten thousand sexual devices now there is not judge but i'm talking about the validity of the regulation the studies behind the regulation and if you look at the studies the fort worth the two thousand and four fort worth study it's a couple of questions to some appraisers it is a glorified review and it doesn't as judge pryor pointed out or asked about it does not include a stand alone sexual to wash up every single study anecdotal evidence people testifying at planning meetings they're always talking about movie theaters or book stores or strip clubs not this idea of a store that selling female breast pumps or had touch a magic wand or the pictures that you saw in the record there are selling the devices is does not make one an adult bookstore and defining the finding my client by the mode of advertising and then lumping in all the secondary effects the evidence