sony building in broadway in seventy third street the city zoning resolution prohibits the display of illuminated signs above forty feet of foot height restriction prohibiting even traditional illuminated holiday decorations and political symbols likeness busey's peace symbol exempted from the heightened illumination restrictions our flags banners and penates displayed from lots used by civic philanthropic educational or religious groups  electric sign saying vote for trump or vote for clinton and you wanted to have it be on stilts and limited because otherwise you couldn't see it from the interstate that's a few miles away would you have an absolute right to do that such that it you know that any environmental concerns about such a sign would be trumped i certainly don't think so your honor this case can be looked at in a couple of different ways on the one hand with this case was remanded back to the district  because of the strong language in lieu do which said homeowners have a special interest it's actually like intermediate scrutiny plus there's a little extra level of protection given to homeowners because it's your traditional cherice means of political expression of the supreme court you know they all live in suburbs and they were thinking about in that case was about suburban type lawn signs and window signs that aren't illuminated and the don't have the same issues as either the cabin in the woods or intensely populated urban areas but i think a lot of distinctions can be made and practical distinctions certainly make sense in this context but i think that the overriding concern has to be th first amendment doesn't stop at the second or third floor of an urban highrise especially in this case there is no other interest that's my state in terms of danger in terms of destruction or destruction of drivers or or that you know the traveling public i think that the cabin in the woods example would be perhaps extreme if there was some limitation generally on billboard's which was totally neutral on its face and certainly that could be regulated have that element of sort of the highest level of expression protected under the first amendment and so but that's not an issue here and we're not talking about speaker based or content based discrimination which was addressed earlier and of course this in a negative way through the back door right because the the question of whether how this applies and how broadly it applies is relevant to whether it's a legitimate time this a core polow didn't address the fact that we do ask for a little bit more scrutiny above intermediate scrutiny and the court below didn't address really adequately address the fact that we do says when there are exemptions and this is sort of the more narrow approach to this case as opposed to just a generalized constitutional right for homeowners to display science we have a situation here where there's a clear statutory exemption it's incumbent upon one of these and he says there's not and  it's a very complex statute trying to trace through the way all the exceptions interact and i was wondering if there was anything at all in the record about how this is  the city but the city is actually taking the position that it has prosecutorial discretion so for instance with the proliferation of holiday signs around you know various seasons we don't have any indication of any prosecution that we have researched the cases and haven't found anything so this isn't a menorah or a christmas decoration or something we haven't seen any cases where they've said you know you're going to get an eight hundred all recognize the burden of proof is on them but it seems to me it wouldn't be hard if there weren't lots of santa clauses  windows and it wouldn't be very hard to document that and if there were civic organizations that had spotlit american flags on the tenth floor of a building it wouldn't be hard to know about that and yet there's nothing that suggests a limited flag and that's right but i just remind the court that these are motions for summary judgment there has been no discovery you know our position while these are these are motions for summary judgment pre discovery that's correct yeah so there was no development but i think the final point that i'll make here i see my time is one is simply that requests for more discovery you know you know your honor we get any of the other thing about this case a little frustrating we came into this our client had been fined for having a sign about the height restriction restriction and other i mean this is again the car cation reading the zoning regulations there's a height restriction but it only applies to illuminated signs where there's an exemption for limits there is an exemption for civic philanthropic educational religious groups from all of the route height restrictions which include the illumination provision within the height restriction it's absolutely clear i've spoken to a number of lawyers about what you want but what happened to his boss he went to your client's problem you said they said it was a violation of the height restriction and then the judge figured out or claimed that it was a violation of the illumination provision but aren't they the same one of the same thing in that for get the civic people for your client it's it's an illuminated sign above the height restriction that's the problem if it were non illuminated it would not violate the height restriction is correct but the exception for those groups including except anderson elimination provisions but finally and perhaps most importantly it where there is this suggests it's going to karalee products footnote for where the courts are we have to have a more exacting scrutiny when individual liberties are denied or discrete insular minorities are discriminated against there's a very important case and what happens here is if you do have this exemption and i say to the court this statute should be analyzed i think it's very clear on the face the exemption exists the city's absolutely wrong here there has to be an explanation for this and not at all it's a credibility argument doesn't go to speaker credibility of the substantial government interest it's being asserted if the government wants to ban illuminated signs and that's such an important governmental interest the fact that there are exemptions the fact that a y m c a or religious organization could have a twenty by thirty review of the record correctly determined that this the challenge regulation is a reasonable time place manner regulation that does not violate the strictures in law do and in fact  plaintiffs have conceded that there's a significant governmental interest here but then they go on to question the credibility are rational and they also go on to claim that we are punishing city but they do so without support the city's rationale for zoning regulation of signage is set forth throughout the zoning resolution the case law is clear that regulation of lighting is is a job of government and is zoning regulations for a film that the proliferation of signs in this city above of illuminated signs could wreak havoc on the quality of urban life and judge lynch's question concerning the issue of residential life i believe goes right to the heart of this case here we have something where an issue where the city has narrowly tailored a regulation which doesn't address or targets  we're not punishing this abbassi for displaying a piece of what we have there's a regulation concerning illumination which serves the city's interest to protect urban quality of life and neighborhood aesthetics and vi clutter and despite her repeated arguments that these rationales are not credible she shows nothing to support that but it's not really a probation road the regulation or we can see the in other words i think hers is a hundred sixty feet from the ground something like those on the record right so maybe forty feet can still see you know until it's signed but at one hundred sixty feet if you put a peace sign in her window nobody could see we can say well your honor i actually think the record doesn't bear that out i and i think we're going to just buy the pictures this is a a large window and twelve feet i actually i think factually the district court made a factual determination that you can see it i think the photos show you can see it was it's not at night but i mean not at night necessarily it depends it's not the red l e d illumination the plaintiff would like to have twenty four hours a day and the so the city has narrowly tailored its regulation and as this court is well where we do not have to have provide her chosen means of expression we it does not have to be the least restrictive means we have and acted as zoning resolution which attempts to protect the early polity of life while preserving her rights to free expression and her alternative does not have to be her chosen choice and that's well established in ward and many cases in this area and even the more recent decision in review the supreme court recognized that there can be restrictions on location lighting illumination size and that's what's happened here we need district there are certain districts it's not simply forty feet throughout the city there this is a tailored regulation where the illuminated signs are in the th and that is of course and frankly i recently learned that in times square there are some requirements to read wire illumination illuminated signs for certain size frontage is because that is that neighborhoods character but the rest of the city is entitled to have preserved a residential quality of life and so in certain districts there are height restrictions above forty feet in other districts there are restrictions above twenty five feet and in some districts there are no restrictions and that's what the city under its police power is entitle to do to make reasonable time place manner bagul ations that  ultimate measure and here we have to preserve residential character character and quality of life and we have done it in a way that provides ample alternatives of illumination but i would note that a lot of the read first of all it did not involve a homeowner and a number of the cases cited by the city did not involve homeowners the rich people it's really like many first amendment rights you have to own a to the same thing and indeed my client has to go back to the condo board if we prevail in this case to make sure that she's clear to continue displaying her side how far up does this go if i lived on the top floor of one of these new bloomberg ground on there i'd have to have a pretty dramatic light and it would have to be it probably couldn't be seen from the street right underneath just because of the shape of the building so what i'd really need to be able to have an effective can't credibly the city when this city has the power time place and manner and excessively large sign a sign which is you know perhaps dangerous in some way distracting to the public or may have independent bases for banning but here's the irony of this case the city's position is that a flag banner panic cannot be illuminated because the nature of the material that it's made of that means that and the court below basically said five it's having been exempted she didn't have standing in the first instance because she wasn't flying a flag banner patent implying that if she had banned it would have been it legal which means she could fly a twenty by thirty foot flag brightly colored with massively powerful floodlights and it would be legal under the city's interpretation and i thought the city's interpretation was not with floodlights now the city's interpretation is that because the the definition of an illuminated sign is one that projects  ability to fly this very large brightly lit flag under their interpretation under the court's interpretation and that would be perfectly legal what you can't do is a small you know peace symbol illuminated by l e d s but it is the critical point here is that the laju asks for more than we got from the court below the court below this court and the corporal of the second time that it reviewed this case has not yet thoroughly examined the zoning resolution between think on its face as a matter of common statutory interpretation exams these groups from the elimination restriction as well as the height restriction and that exemption undermines the notion that this is narrowly tailored it undermines the significance of the governmental interest at stake and most importantly at least in my mind perhaps not in constitutional doctrine maybe there is enough out there to say that general lumination restrictions or sufficiently understood the court could take notice of that there doesn't need to be a huge legislative record on that although there are obligations and we have we've set of cases which say that this should be clear from the text or there should be an explanation as to why they do this but even work that way bishan it's just an acquired right that's correct it's correct but if there are exemptions on something like this illumination where the issue is comparable in fact could be more severe among the exempted groups in terms of creating more illumination i think that the public deserves to know why i can't put an illuminated menorah or a christmas day decoration my window why i would be subject to an eight hundred dollar fine if i were to do that because i'm perhaps a few feet above my neighbor who is below the forty foot restriction and yet the y m c a down the the road i shouldn't pick on the y m c a s wonderful organization or any other civic not for profit philanthropic religious organization is allowed to