and protesting and leafleting we're not allowed ross was two thousand and fourteen decision this case is different factually it's different legally it's factually different because there were two factual stipulations and ross that were limited to ross one stipulation was that the policy was generally applicable and that is contested here and this court found that factual stipulation determined the level of scrutiny that was a political and ross really but when you say that's contested here what is it that you've alleged about how the policy is not generally applicable well it's not content neutral on its face because the subject line states circus protesters and it says the purpose of the policy is to allow a person moment opportunities for circus protesters have you alleged in your complaint that and putting to one side th selective enforcement allegation but so is it your allegation that this policy does not apply generally to leafleting that before the police decide whether they're going to move someone along they have to look at the leaflet to see if the leaflet about a circus versus a protesting the war in afghanistan well we don't have to go that far we just look at are you alleging that because i don't see it in your complaint where alleging were alleging discriminatory enforcement there is a claim of discriminatory enforcement  you alleging that the content of the policy requires a police officer in forcing it or applying it to look at what is written on a leaflet before it certainly could be read that way yes or no count and count one  complaint i'm sorry counter of the complaint challenges the policy is applied to the flitters i'm just remembering a handle on whether we have a factual dispute in front of us about whether or not a police officer applying this policy assuming that the police officer is not doing selective enforcement is applying the policy does that police officer have to read what's written when someone's handing out a leaflet before he or she tells someone whether they need to move into the protest that well in addition to the facial challenge we do have a more knowledge challenge based upon the customer i'm sorry maybe i'm just maybe missing the question i feel like i wish i could ask it more clearly if there are truly fl or standing in front of the circus and one of them is handing out a circus like you nice to circus animals leaflet and the other one is handing out a us out of afghanistan leaflet is it your view that a police officer sort of properly enforcing this policy is supposed to move the starkest person into the separate spot and leave the afghanistan person there i don't know that i would say supposed to i would say that the policy refers to circus protesters and if one reads the policy in one way it certainly permits the officer to determine his or her action based upon the content of the leaflet and that's because of the way that the policy of people is written on its face referring specifically to circus protesters decide that one way or the other because he was arrested he does have a claim his constitutional rights were violated in two thousand and ten whether or not if the same thing happened in two thousand and seventeen whether it's relevant or not  was the stipulation that the policy was generally applicable it's contested here the second stipulation was that there was no mon el custom of discriminatory enforcement and that is contested here as well and on both of these issues and ross decision to read dictate how we're how we're do that also the decision of caylee recognizing that the content neutral analysis has changed in light of read now you just look at the face of the abortion protesters and then you had the same policy that doesn't make it content based that wouldn't change the outcome in mcallen the fact that a speech policy is issued and motivated by a problem that is caused by a particular kind of speech that doesn't make it content based on a read i don't understand your argument what makes a content based under read is whether you have to read the leaflets before you decide who gets to stay in front of the circus and who doesn't it doesn't matter why the state adopted the policy or the city i mean everybody knew in mcallen right that was the whole argument in mcallen this whole thing is about anti abortion protesters and the court was very clear it doesn't matter that doesn't make it con the difference between this case in mcallen was in mcallen the speech restrictions applied to a specific specific venue which abortion protesters wanted to protest in this case we do also have a specific venue in which circus protesters want to protest but we have the additional factual distinction here that we have a policy that is written on its face to apply only to circus notice that it replayed it applies to protesters the operative provisions apply to protesters then there's some other language that makes clear that the genesis for this policy was a concern about circus protesters but that's exactly the facts and the common there was an entire legislative history people got up on the floor of the state house and said we have a problem with anti abortion protesters it's the exact same thing in the courts and that's content neutral i would respectfully disagree i think the subject line says quote circus protesters and the body of the e mail refers express i agree the legislative history is really solid that these people were particularly concerned about circus protesters i would not challenge that but i don't understand what that has to do with the operation of the policy and that's what really tells us to look at it does application of the policy turn on the content of the speech ok well i like that if i may move on to the narrow tailoring analysis i i don't know that i can satisfy the court on  this court's prior law on content i'm sorry on narrow  the under mccall in first of all we have the substantial interest test which requires closer attention this court recognized in footnote four of reynolds that whereas there where there is no obvious relationship between the restrictions in the government's stated interest the government needs to present evidence that the regulation for others its interest and this is the district court and ross number three quote a clear disconnect between the this court you find that there is a lack of evidence that the policy for further as its stated interest mcallen also changed the narrow terra link analysis and affirmed everything that ross had argued leafleting is differently fitting is special and you cannot post mcallen just tell someone to stand fifteen feet away and shout at people if that's what they want to do that's fine if you want to protest you can still protest but if some someone wants to approach and be w con's conversational voice and offer a leaflet you cannot tell them to just stand over there and hold a sign and they can see and hear you and that's good enough and frankly everything that this court wrote and  ross you can look at mcallen and find the supreme court stating the opposite and i cite some of that in my summary of argument based twenty eight of my brief in mcallen the supreme court also recognize that you must present evidence  that the government tried less restrictive means they did not do so here you feel like that means that the first thing the government does to respond to a problem like this is per se unconstitutional have to try a bunch of things  first you have to if there are less restrictive alternatives available than then i would say yes so you think that after mcallen the rule is that the government has to use the least restrictive means possible because i thought mcallen went out of its way not to disturb the rule that that is not true i don't understand how to square up your argument with the continued rule that the government is not obliged to use the least restrictive means possible i don't know i suppose it could depend on how much common sense and obviousness there is between what you try first and the alternatives that were available that were readily available you know certainly in and reynolds this court was quite clear that they did not try less restrictive alternatives that there needs to be evidence of efforts but there might be an exception if there's if it's just so obvious and common sense i suppose but in this case you know we have a very wide area we have a hopkins plaza covers a third of an acre where the box office is we have a twenty nine foot wide sidewalk you can see on page seventy three of the joint appendix mr  in two thousand and nine standing a far from the people the distance and then on seventy five and seventy six standing within about nine feet inside the buffer zone and actually able to reach the people  being substantially reduced in your both your quantity and the quality of your ability to reach people and to leaflet people is a constant can stated constitutional claim and certainly in this case we have stated  that not only was there a reduced ability to reach the circus attendees where you could reach five but five percent of the circus attendees from this distance to be able to be within arm's reach in conversational voice and i just asked you a question about five percent  what's that compared to what was the sort of percent you know i mean in a vacuum how what percentage of circus attendees could your client reach if there wasn't a buffer zone potentially access the hundred percent and get one hundred percent of those people wellness and access to one hundred percent i mean he's want one person if you have multiple leaf litter as you can certainly have access to anyone who has access entering the arena as opposed to five percent sure because to get into the circus venue you would have to go into the buffer zone so certainly you could be reached prior to getting into an entrance or to the box box office area i'm just trying to figure out  how you would get to one hundred percent coverage without creating a huge pedestrian problem like would there be a line of people that you have to push through i mean how could you possibly get one hundred percent it's it was having access to one hundred percent rather than having access to five percent  very i mean that it's no different than what was going on and mcallen and bruni in the third circuit they had a fifteen foot buffer zone and which was previously up held by the third circuit and then in bruni they took another look at it and said ok post mcallen we got it wrong and in that case they re mandate for further factual findings they found that they found it rather incredible that someone would not be able to state at least a factual issue at the motion to dismiss stage and they remanded for further findings early they went straight to linda barclay after having tried the b p t legal counsel the year before and he rejected them and they went there and she just drafted up without consideration or attempts to do any please the court steven potter represent the respondents in this case this panel should not overrule the court's decision roster says for early which upheld an untenable time place and manner regulation of protected activity in a public forum as narrowly tailored but what about the fact that in were ross there was a stipulation that the protocol was generally likable that's it that make a big difference in know your honor i think that the generally a if it's the question of being too broad for example we've got we've got the problem arose in mcmullen right so it applied to many locations and it was but it was over was too generally applicable it applied everywhere just like reynolds it applied many places but it burdened more speech than was necessary because the congestion problems arose once a week in one city at one clinic so it was more and in and in ronald's we had something was generally applicable to all streets and all islands throughout the throughout the city so that was that was the the problem so but but what we didn't and that it would be treated like an injunction because it was somehow targeted and that would be targeted in this narrow tailoring context and and i think that as a proponent out it is content neutral  when we look at the tailoring look at the target so called targeting in the narrow tailor in context now we know from a column that says when selecting among various options for combating a particular problem local government well we might know that from  but we still have to decide the court still has to decide that here because it wasn't stipulated to here in the way it was in ross you know you rightly write about mcmullen but the court below still needs to reach that issue right i'm on my own much sure that they do i think they just treated it as a regular regulation of protected activity is the question was this idea applies generally to speech or whether it only applies to circus related speech whether you're only going to be told to move along if you're leafleting about the circus district court said that was a hotly disputed factual issue it was resolved in that case because the parties stipulated ok fine it actually applies to all speech not just circus related speech so there was a stipulation but there is no stipulation in this case so what do you want us to do about that factual question which is applicable or or targeted it was not a question of whether it was in the application in terms of whether we're evaluating the content it was whether it was should be considered generally applicable as a as a non legislative i understand that the legal point to which this factual question was connected in ros was different it was about should be treated as an injunction or should be treated as a regular regulatory ordinance that's all gone now because now it turns out that the question the answer to that factual question determines whether or not it's content based under read write whether if this only applies to circus related speech then now it's content based because of read but the question doesn't go away well i think that i think that the question now it was more i think actually it's not now we can we can talk for read it wasn't but now it is well right like we agree that under wheat if this policy only applies to leafleting about circuses then it's content based so my question for you is does it only apply to lea about circuses no ok now how absolutely not ok but that was at one point factually disputed issue watt has resolved it for us now i think that the it was not a factual it was actually not a factual issue because there was ample evidence in the record including a film of us and forcing it against everybody that was present and and that was never understood that way certain where it was anyone convicted of if they passed that something other than the police officer have to let him go to court couldn't convict him thirty on a protest no and no one was considering whatever it said in the leaflet it was simply a question of are they engaged in protected activity within the dedicated channel of the sidewalk that was set aside for pedestrian traffic and public safety they never no one ever looked at any leaflets they were concerned with whatever it said it was simply whether they were offering leaflets or where they were  so they don't they don't bother because the power they want to protest as well i go to jail if i protest but the person who's for that animals being in the circus can go down and without fear of prosecution not a message or to hot as protesters that means something it doesn't mean that we're in favor of anything i would neutral it means against something yes i do said i don't i don't see why this is not just viewpoint discrimination well your honor it was never understood to be viewpoint discrimination was never enforced as viewpoint discrimination making a difference mcmullen doesn't well i look at what the words say the the language and the way it was inforced was that it was considered to be applied at the at that location at that time to everyone that was engaged in protected activity regardless of whatever it said and there there protocol ever been enforced against anyone besides animal rights activists yes your honor and then and in the record it reflects that it was a force against religious people and in fact i think there's photographs of it you know still shots of the new israelites that relining up to engage in their proselytizing in the middle of the section and the security immediately ran out there and told them please you know move your activity you know outside the brick pavement  and and you can do it there because we've reserved this area for for protected role for pedestrian safety and for traffic flow and the religious protesters i guess i see but i mean i do have the same you really enforce this against someone who is say handing out commercial leaflets he would say what are you talking about as i understand the court's trouble with the imp but in other they used the word protester as simply as people i think it was barclay's testimony was anyone in gauged expressive activity within this area and that's why it was applied and that's why no one ever looked at any leaflets or considered you know whatever the subject matter was because they just were simply trying to preserve space as this court found that you know it does no more than target eliminate the exact source of evil it seeks to remedy by reserv space by reserving space within that area for pedestrian traffic flow but but but i think that in terms that the in terms of getting back to the question of whether something is generally applicable or tailored i guess at the time that this is at the time those that that that issue was i guess generated it was simply a question of whether it was going could be treated more like more like an injunction or and be subject to heightened scrutiny and here and here in fact we now know that maybe that we did all we did was limited no more specious was necessary based on the fact that this court's found that we responded precisely to exactly what the problem was but but looking at the content neutrality part you know leafleting the way the regulation operates is that the leafleting it depends not on what the leaflet says but simply from where mr looser is offering it it no it doesn't say oh you must review must review the content of the message first it's simply anyone gauged in expressive activity or protesting of of any type for any issue you know it has to be moved to certain outside a certain area so there's restricted areas while confining circus demonstrators to the designated areas is a decisive and fervently disputed fact i think it is still decisive under read it's it now goes to a different point not this madsen issue but but now that is dispositive under read as to whether or not it's content based i would i'm trying to figure out if there is some sense in which it is no longer disputed and i was trying to still have questions about whether it's actually there's an allegation one way or the other in the complaint but i don't understand how how you know and then the the fact that the protocol on its face appears generally applicable is not determinative that to me also seems to be remaining true so how can we do anything but send this case back to this district court who would be so unhappy to see it again and say now you have to make this factual determination well one way is that you know the application of the specific of the regulation specific application to the location is actually not a problem are no grounds for inferring content based discrimination and applying the buffer zone only to abortion clinics or simply because it applied to bush and clinics didn't they had content they simply and here we have simply because it's applying at the circus that's not what the district court said that this is a factual dispute because it applies only at the circus he said it's a factual dispute because and then he lists all the stuff in the record the affidavit of the person who says the youth group got to keep going people who say that they saw vendors in the area that's what he's saying on the facts of this piece there's a question as to whether this only applies to circus related speech or not well i guess this this court actually found that there was nothing to suggest at least in terms of from two thousand and four to two thousand  nine there was nothing to suggest that officer early purposely targeted leaf leaders because they were protesting the circus this only applies at the baltimore arena during the circus correct it doesn't apply i think that but i think there's also testimony that the way it was understood was that this would be the plan whenever there were protesters at the arena yes there is no more circus there's no more ringling brothers whenever but but whenever there are  four and because of the bus stops because of the rush hour demands of the area they would go to this particular set of regulations that all of these questions and issues in arguments you're making are still in this issue because they were not resolved in ross right well there was no there was no determination in ross with regard to from someone doing the same thing in the same location an error you know that was generated for the same purposes and for that reason that's why the district court found that that that it controlled mr listservs claim as well but i think that with what is significant also is that on the screen already found that that for the time period of you know two thousand and four to two thousand and nine we are already on which mr de realized that same record we already know that that has been insufficient to show that somehow that was purposely targeted so to speak by officer early or that there were a sufficient instances of you know numerous instances of similar situated in individuals we already know that that evidence is is insufficient so so really we're left with what will does it make any difference what happened in two thousand and ten and you know the presence of one woman that may have been engaged in protected activity or the presence of one circus vendor who arguably is really a different completely different because they are on their engaged in commercial speech but secondly it's part of their commercial contract with the arena operators to have the use of the arena the fact that they may have been president some location and we don't really have direct evidence of this as to when it was or where they were but it's certainly a different can tiredly different context so we so we really have a very small finite amount of evidence that would actually be controlling a relevant with regard to whether there was some sort of content based enforcement or or or selective enforcement because we already know that the earlier time period has already been reviewed by this court in the context of the other case and made a ruling with regard to that  originally understood and so therefore you know the reason that we had a stipulation was for supper purpose and now the question now becomes whether there's some sort of  tell us that simply because it's say targeted at a specific location or may disproportionately affect speech on a particular subject matter that we now know that that is content neutral and so if that's where our general  in targeting issue has gone mcmullen answers those issues for us and so we don't it's really not a it's really becomes not a relevant issue thank you thank you that other approaches have not worked instead the government must show that it seriously undertook to address the problem with a less intrusive tools readily available to it and must demonstrate that such alternatives would fail to achieve the government's interest not that the simply not simply that the chosen route is easier and we know based on linda barclay's deposition that they did not consider much less try alternative less intrusive means to achieve the government's number three was somewhat suspicious of that judge mots noted that the officers were aware of the fact that they were being videotaped at that time and that this was this was going to be a contested issue i do see how  judge that that was a disputed fact at the time but i'm still going back to the complaint in the current case and just trying to see if you really put this question at issue in this case i and let me just because i think this is really it's least it's very important to me  and i understand in your brief and in your complaint this sort of argument that look because this thing that e mail references the word circus it's not content neutral that's not what i'm looking for i'm looking for whether you have put it issue that in application this policy requires police officers as i already said to sort of look at the content of a leaflet before deciding how to apply it not generally applicable in that sense not that it says circus but that as it includes circus protesters but the question is is it limited to circus protesters and all other protesters and have at it well i would say that to the extent that it is not that if it's vague in the complaint it was certainly put out issue in the district court and it's not for dependents but it is e c f number thirty eight which was the plaintiff's motion to reconsider dismissal and that that was decided prior to this appeal coming to this court  in which we allege that it is not a content neutral policy and that was in section one page twenty starting on page twenty six of e c f thirty eight where we put it at issue before judge matson and had that argument rejected and hence we are we are here on that issue perhaps the complaint should have or could be amended to clarify that but certainly it was before judge mots by way of that motion if not the complaint  and i have no for the argument or any other questions now thank you ok thank you all right we'll come down and greet counsel and then we'll be adjourned until tomorrow morning