today we present the court with a question of first impression it's a question about the constitutionality of a seven o'clock pm curfew applied to uninvited door to door commercial activity every other case involving a has not been logic it has been experience and that's true in this case it's about the experience of the town its elected representatives its staff and its residents to employ it there in their attempt to employ a common sense solution to what ultimately i constant yet practical problem the second theme that prevails in this case is that it's not about data the town with whatever limited resources it happens did is the supreme court allows it to be relied on and it goes consensus common sense beyond dispute that the town has done enough already and through that authority they can restrict commercial uses from residential areas and also with the authority to limit the times that which commercial enterprises operate under the same rationale the curfew offers a limited measure to avoid the practical problems that are attendant to commercial activity in a residential neighborhood to the extent this court considers the curfew a speech regulation that we disagree with it should bear in mind the supreme court's rationale for commercial speech protection outlined in virginia pharmacy for which is to ensure the public has access to lawful and accurate commercial information the court clarified that further in twenty four liquor more persons wrote on one said quote the state retains less regulatory authority when its commercial speech restrictions strike at the substance of the information communicated rather than the commercial aspect of it the curfew is entirely unconcerned with the substance of the information it's communicated instead whether it's characterizes the regulations speech or not the curfew is concerned with balancing the interests of solicitors in earning a profit in the interests of residence and maintaining their privacy you treat canvassers differently  structure and why do it why isn't that a distinction that matters well i think it is i think it is a distinction that matters in the supreme court has consistently allowed for the treatment of non commercial speech differently from commercial speech and the record in this case reveals that noncommercial canvassers are not a problem the town witnesses uniformly and in an uncontroversial manner testified that noncommercial canvassers had not been a problem i their experience in the experience of their constituents they did however indicate that commercial soliciting had been a problem and was it and what commercial solicitors were problem or they could be commercial solicitors they did not abide by the restrictions as to as a unconstitutional one so i think as long as you have to concedes that curfew is constitutional it simply places the poor in the position of being a super legislature or all this in other courts have certainly rejected you lou to the fact  view then it is it can grow with the spring course decision city of cincinnati so why so to the supreme court's decision in the city of cincinnati related to commercial news racks and so so yeah i and you had newspapers and people who were selling other stuff and in both instances there was some level of commercial aspect associated with them because people were buying papers and so explain to me what in that case they did not find that restriction to be content  so why is that not of what does that say about this case also so let me back up for a minute and talk about content you travel the in the realm of commercial speech so so what the supreme court is that is that content based regulations of commercial speech that is scrutiny so i think i think the use of the term content based in cincinnati discovery network is he is well relative to the fact that that whatever the newspapers that were being sold that were commercial there were two thousand and nine commercial news racks and then there were only sixty two commercial news racks and so when you look at what the city's interests were there which was is that it's essentially the elimination of sixty two out of two thousand news racks year in a town of fifty thousand people is not men now what that data also showed was that there were zero complaints about commercial solicitors after seven pm which certainly believes shows that the ordinance is working that commercial solicitors are appearing to the restriction and not not invading people's privacy or you know what about interrupting people's dinners or whatever they might be doing after seven pm so i you know i think the testimony but certainly well what if what if there would launching a missile the kill a mouse type of issue so it's so so i guess we disagree with your characterization of launching a missile and i think this is a it's a fairly limited burden on commercial activity but i appreciate that  but if that's their prime zone then that is a significant burden on them so i may not see how that works so to look at them and we'll talk about that for a second so so so that is their contention that that's that's their prime time their own data doesn't bear that out their own data actually shows that they sell more contracts before well before seven pm but even assuming the best they're primetime i think that there are there are a few problems inherent in that number one is what do you do when someone's prime selling time is eleven pm to midnight where it would have an even greater impact on privacy or even on safety what is the evidence of them no it's when it means that you have a stronger argument that there is fit with this regulation and you know that now and that's that and that's the point that goes to the missile to the launch to hit amounts i mean you say this case is not about data but there has to be some data and i mean references went for it government is entitled to rely on the experiences of other little governments there are there are there are other cases the didn't versus report kits that details in excruciating detail that the crime evidence on the ground and say because this happened in shreveport we're going to do it here too i think you have to look at that so castle rock is a community that has grown exponentially in the last twenty years and so castle rock is a growing city undoubtedly with looking to cities such as shreveport or denver or whatever other large cities and saying we're a growing city we want to avoid those problems well that sounds like preempted to me and it sounds like and the notion that you you decide well you know one day kasparov's firing will be right again or we aspire to be like them or so we're going to have we're going to regulate like denver so we can deal with dinner problems well that's ok you're not hurting somebody and if you're not impacting on some experience and you don't need evidence you need evidence when it's challenge what is challenge now we're live and and looking at this record it doesn't seem very strong i think the problem that that presents your honor is that in that case any old law where people aren't around to testify about the about the law when it's eventually challenging what would then fall under the first amendment because because how i mean there are speech restrictions that are under years old and so are i guess the question is if if we're going down that path the more requiring the local governments to maintain records over one hundred years to just a little inconsistent here i think first you said you don't need to have the evidence when you pass it you have to have the evidence when it's challenged and now you're saying that you can't have the evidence for this challenge might be cloned protrude years we will know what happens without it what when do you you need  challenged well certainly i mean we're ok here ok so so now you have to have evidence and our concern is that there's pretty skimpy evidence here so so so let's again go back to  residents indicated that there was about one complaint per week about commercial solicitation and that many of those complaints related to the hour at which that occurred she then testified that that became less of a problem after the  is very clear on this that under it's under compelling supreme court under control and supreme court precedent and a precedent from this circuit in order for you to read late speech you have to do two things to use your metaphor you have to prove that number one there are mice that need to be killed and then second you have to kill them with match traps not with us and both of those go to the second and third prongs of the central hudson tet and both of those are reasons why this ordinance and this curfew is constitutionally in her first it is an unworkable solution to a problem that never existed there is not and never has been a problem in the town of castle rock caused by registered solicitors operating after seven pm the record is devoid of any evidence on that point the only evidence they have that supports it is the conjecture and speculation of witnesses who said things like it might single up anymore for this complaint about a nine forty five knock on someone's door by a solicitor or canvasser gardener it certainly no one that was registered because because they couldn't track who that person was the evidence of the dog with all of these permeating and background checks and all these otherwise normal constitutional restrictions but then add this curfew because there's a medal that was given by the colorado and this will lead that says one of the may consider it is at a time machine and so one of the council members of the meeting says well we did have this complaint about nine forty five and they talked about eight thirty curfew and they said well it gets dark at eight thirty in the winter time so let's just pick seven o'clock that so you have a retirement community older folks to get up early to go to bed early they don't want to be full of food for money it will be commercial solution after nine o'clock that unconstitutional for that community council city council to just say look we don't want to be bothered after nine o'clock we're going to bed and so on  do they need to show what do they need to show that to avoid being alone constitute well i think under this court precedent in the pleasant grove case which applied to commercial solicitation they would have to show two things because it regulates speech they'd have to put on evidence that there was actually a problem with commercial solicitors knocking at times that created privacy issues that's number one they couldn't just assume it and then the second thing they have to be true if they did it for a living pm well  wanted to be a nice community where people sleep peacefully and are bothered by commercial solicitors they no matter what time they put they need to show that there's think i think to answer your question judge i think because it involves pretty beach i think the court has created a burden that's on the city and the answer is no they could not do that they would have to show i thought that the restriction that allows you to you know that stops people from from knocking after eleven o'clock that you're resolving a problem it could under a circumstance where you've just told me that there was a community where people were knocking after eleven pm and insufficient compared to that which was of value laid in wait for it and if you want striking is when you compare the evidence that was put on in the pleasant grove case with the evidence here which was insufficient for this circuit purposes and in the pleasant grove case it's is and this is from the court's factual findings which can only be reviewed on of it under abuse of discretion standard there is no evidence this is from the court's opinion that commercial solicitation after seven pm would decrease crime or increase public safety in fact the court found precisely the opposite based on the testimony of the chief law enforcement officer of the of the of the sit he testified among other things there is no evidence suggesting solicitors commit more crimes after seven pm to the contrary he testified crime if were coming during the day when people are home then to your point i think if carson are actually judge jones you ask about canvassers he testified if there was a problem in the city it was a problem with unregistered solicitors and soliciting signs that are on the doors finally and this is the most telling admission of all the chief of police testified that if the curfew had been repealed it would not have a material impact on public safety that's the chief law enforcement officer of the entire city that's case set match all of that on the on the crying justification on the privacy side of things as i mentioned before the evidence at trial was that the single complaint from a night forty five complain that they say that they use what i have what i call the sides of the fence which is that if you believe it's true that it's ok they put witnesses on the stand and they said as long as it's reasonable for me to believe that something is the case then and then i think this is the second most important point is well in the truck or didn't get this because it concluded that it didn't meet that they failed to meet the second burden of the second problem but as it is it's an independently sufficient basis for the corps to also  validate you were once and that is it's not there are less restrictive ways to do it here's the test as articulated by this circuit in a pleasant grove case quote the regulation is unconstitutional the government interest could be served as well was a follow up to his offer to his boss who explained the situation and there was never a problem again so there is no record here of the kind of rabbit violations of the no knock list in fact to the contrary with the evidence shows is it works very well that in order to be able to be that they have to know who you are where you're going the color of your car your license plate your permanent address and the notion that these people would be inclined to violate the law or commit crimes it's preposterous which is why the i think orton stratton the second is that that the interest that was at stake the public interest that was at stake in that case was solely public safety and had nothing to do with privacy and then the third is that the reason what what what this court found has be problematic with that restriction was that it was a thousand dollar bond requirement that applied to any commercial solicitor in the community and that the city in that case did not even have a means for anyone