court my name is earl invented representing the appellant that will serve two minutes for rebuttal time the city of brentwood tennessee enacted an ordinance that imposes an absolute ban on the transfer of newspapers and other items to occupants of motor vehicles of means of communication in holding that it did the district court erred by including means of communication that are not used by the contributor and it's bender's the analysis that district court should have used would have considered those me which are used by the appellants and then determine whether given those methods the ordinance leaves the appellant's reasonable opportunity to compete to communicate their message the problem is that the ordinance does not leave ample alternative means used by the contributor and its vendors for communicating its message the ordinance is an absolute ban without so much as a free speech zone used in other first amendment cases the burden of proving ample alternative means on the city of brentwood the first step is to determine what means are used by the speaker to convey its message based on the record the essence of the contributor message is to create a connection between homeless vendors and the public the message conveyed through the physical distribution of a newspaper which contains news reports analysis and cultural offerings that speak to the issue of homelessness the physical distribution of the newspaper creates a personal interaction between homeless vendors and the interested public through the sale of the newspapers vendors are then able to earn a living and support themselves consistent with its message traditional means of newspaper distribution are not used by the contributor so therefore it doesn't use news racks it doesn't use general distribution email it doesn't use an electronic website because those methods don't allow for the personal interaction between a vendor and a interested supporter even if we accept the premise that there has to be a personal interaction can't be an inert object like a mailbox or something like that why does it have to be somebody sitting in a car well because that is one of the means that event the you contribute is now i understand as one of the means but to say that's one of the means that some means we like we have never tried any other means so therefore you're violating our first amendment rights seems to change the standards here while the trigger does use other methods in the city of nashville the vendor vendors can use sidewalks and use sidewalks regularly the problem here is that brentwood has no sidewalks there was no proof put in the record your honor that there were any sidewalks in the city of brentwood from which vendors could distribute a newspaper and i will concede that if there were sufficient sidewalks in brentwood for contributor vendors to sell their newspapers we wouldn't be here today i misunderstood that i thought that i read that there simply was in your view in adequate protest or in traffic on the sidewalks in other seriously if i just go on google maps and look down on what i'm not going to see sidewalks your honor there's nothing in the record that was presented by the city of brentwood that quantifies that there were one hundred feet two hundred feet three miles five miles of sidewalk space in the city of brentwood that's not there but you're standing here as a you're standing here is an officer of the court you're telling me that whole city don't have sidewalks they just got roads and lawns that's it your honor based the plumbing based on our investigation this is not the record ok we found one space in brentwood that was maybe one hundred feet long but it's not in there but it's not in the record your honor because brentwood didn't present any proof of how much space there was in the record and it didn't and the burden is on brant from our perspective for them to show that there is an available means that's used by the contributor through which it can distribute its message and as i said if brentwood had let's assume that you're right the burden is on them they're relying upon sidewalks for their argument they didn't meet your birth right but if you're wrong about the burden of proof then you didn't address it you just simply say well we don't want to do anything else or your honor i believe that case was pretty clear that the burden of proof is on brentwood to prove that there are ample alternative means we don't have to come in there and show that we could at done it here were done if there we would have to respond to brentwood if in fact they come forward and they should demonstrate to us that within the existing means that are used by the contributor and vendors there are ample  e means but i think the the limb case even even the written case holds that the burden is upon the government to show that there are ample alternative means within the means that are used by the speaker within the means used by the speaker within through which they can communicate their message and what case do you have that conflates those two subjects that they have the burden and the burden is limited to with the in the means used by the speak r there there are a lot of different cases from which you can select different snippets shorey and then you combine them and has to say well that's just an accepted task that combines both disparate phrases from a bunch of case by the city which really doesn't get to the issue of ample turn of means but i think the say case does in fact have a reference in it where it just the six circuit makes reference to the fact that we're looking at the means that are used by the speaker nashville brown would also suggest that some other means through it that contribute could use the different sales public buildings private property door to door but the record is clear again that none of these means are used by the contribut r and and therefore should not be considered as part of the message and the case here the principle case you're relying upon that says this inquiry is limited to the means used by the person think that might exist and of course preparing for today i came across a language in say which i believe conflates those two the city of brentwood revise upon heavy revise upon the prime median bench board bill bench billboard cases but we would hold your honor that those cases are not controlling and in fact those cases are interesting and not controlling because again the starting point needs to be the means through which the contributor and its vendors you are using to convey its message both of those cases involve companies that are involved in general advertising over already using alternative means of communication so then the question goes to what is a reasonable or ample means  means that that is left for the contributor and spenders the first point would make your honour's is that it has to be an existing method and again that's the weinberg case barry case as well some cases refer to an analysis based upon the percentage of sales in the burlington case which would have a site that was proof in that case that the hawking of newspapers only a trick contributed to three percent of total sales in the in the court in that case held at three percent wasn't significant in terms of the ample alternative means analysis and of course in the adult in adult entertainment cases the prove generally is that there are parcels that exist and there are insufficient number for the speaker net case to find a place where they can communicate their message now as we pointed out in our brief this is a case of first impression in two respects first it's a hybrid of two first amendment interests the first is we're talking about a street or homeless newspaper which has a particular interest in a particular way of communicating as i describe it also implicates panhandling and charitable contributions we're not aware of any cases state or federal addressing the first member challenge to government restrictions on the distribute distribution of the street or homeless newspaper and i go back to it certainly a moment ago about how the contributor does use a different means of communication in a different city i forgot which city is nashville so nashville you use sidewalks because there are sidewalks correct either any other means of distribution used in other geographic areas beyond handing it to be able in cars or handing it to people outside you know you're at they don't try other things any other place  that's i mean that's the way the tribunal has has built its gets distribution and the record does reflect i believe you do have a small subscription well the readership there are there even small i would say it's infinitesimal but they're really very particular they basically go to two two institutions they go to writers of the paper they go to prisoners and they go to one person who can't doesn't have access to a vendor so that's that's where those where those methods go so you know from our perspective this case presents the court with appellant unique first amendment interests in the face of a total ban of their protected activity by the city of brentwood jurisprudence is that the interest of government must be balanced against the first amendment rights of citizens the brentwood ordinance does not balanced in a certain interest in any way because it's an absolute band the brentwood ordinance impose unconstitutional ban on the street side sales of newspapers to the occupants of vehicles in brentwood without leaving ample turn of means of communication for its message for these reasons the appellant's request the judgment granted in favor of brant would be reversed in this case we m for your honour's robert burns of the national bar i represent the city of brentwood in this case with me in a representative capacity actually the man who wrote the ordinance in question roger horne the city attorney in the city mayor i didn't anticipate that this case was going to come down to a question of length of sidewalks or whether sod walks are present or not and we submit that that is not the issue and i would also suggest that the court can take judicial notice that there are sidewalks within the city of brentwood how can not be an issue the whole case deals with alternative means of distribution that is true but for four points of clarification to begin with there are sidewalks and brentwood and in terms of ample alternative means of communication the city's position is that the standard is not that the contributor is entitled to get the best or the only means of communication in which they engaged rather the question is whether there are reasonable opportunities for them to communicate and we submit that there are to begin with there are sidewalks and brentwood they do not avail themselves of any opportunity that the sidewalks may present their shopping centers in brentwood in the proof in this case is undisputed that they have never made any type of effort to interact with any individual or to try to secure or gain permission through a shopping center or in a private business area one of the issues that arose not unusual for shopping centers to prohibit solicitations and distributions if you're going to hold that out is well high civility to least have to know whether they're available well i think you do but the burden is on the contributor it's not on us we think that it's a little silly at best to suggest that the burden is back on the city for the burden for the city to have to undertake some sort of investigation as to whether this means is available or not when the contributor itself won't even engage in that type of activity in the record before you is clear it's undisputed on several of the points in terms of the activity that they have not undertaken and we think that it's it's weak it's disingenuous if you will to bring this suit and to argue the ample alternative means of communication or they are if they haven't even tried it themselves how is that the city practically on a logistical or some type of administrative basis how is it that we are supposed to put in proof in terms of vendors going out into the city and whether they can do that or not when the contributor itself will not undertake that activity and one of the issues that arose in the let me suggest to you that if you're going to claim that this ordinance is valid because there are alternative means seems to be at a minimum you have to at least say what those alternative means are well i understand that you want to be your argument is you then don't have to also go take the additional step of proving that those claimed alternative means are adequate i get that yes or but at least you have to come forward it seems to me and say what those alternative means are now if you're saying that the sidewalks then it strikes me then knowing whether there are sidewalks would be a nice thing to know if you're saying they are shopping malls it seems to me whether there are shopping malls how many there are and whether they do or don't prohibit  handbills and that kind of thing that that would be nice to know why would why is that unreasonable for at least you to include in i guess we would call it an affirmative defense that's not unreasonable and there's proof in the record to that effect through the city's former manager mr mike walker there's an affidavit that we put into the record that includes that includes many geographical and pieces of information that mr walker signed off with respect to his affidavit there is a find a as in nashville there's less pedestrian traffic the communities in which we live in middle tennessee is largely based upon automobiles that is the reason that the issues came up to begin with in this case because while the contributor wants to say that they will engage in sales to pedestrians on sidewalks the practical reality is that the clear majority of their transactions involve motor vehicles and we've we've kind of laid waste to the issues regarding public safety traffic safety there's no dispute on that now judge mckeague i'd like to get back to your point about other alternative means of communication one of those that we have affirmatively put forward in the briefing in and before the district court in the record is the possibility of door to door sales there is proof in the record before you in terms of the size of the city it's forty two square miles population in two thousand and ten through the senses then it was thirty seven thousand people or approximately twelve thousand five hundred housing units within the city of brentwood that equates to nine hundred people per square mile there has never been any attempt made by the contributor they admitted this in their depositions there's never been any effort made to allow vendors or to encourage vendors or to suggest to vendors that they attempt to go door to door within brentwood and if if their modus operandi if their real goal and their real target is the that the ability or the opportunity to try to communicate to share their message to tell people what it is that they are about and what they're trying to accomplish we would submit that it is much easier and would be much more efficient and clearly without question much more safer to do that in a neighborhood in someone's yard on a sidewalk in a subdivision in a driveway or on someone's porch as opposed to trying to do it is distributors or homeless people right they say they are they're either homeless or nearly homeless but but that did not oh you really claim that this is as is equal or better chance that the person in this suburban house is going to look through their door see a homeless person on the steps and they're going to open the door engage in a conversation as contrasted with maybe rolling down their window taking a newspaper rolling it back oh yes that's your idea yes i contest that that's an opportunity that that isn't another means of communication in which they can engage another one that that has not been that that was not the focus is the fact that there are a number of churches in the city of brentwood there is a church literally with on it were located on every arterial street in brentwood there is a major church that is known as first baptist church of brentwood on concord road in the geographic center of the city within a half to one square mile radius probably a five to ten minute walking distance are four to five other churches of similar size brentwood baptist could be described as a mega church it has thousands of members in it it is a huge church when the church relocated several years ago and then added on with an expansion they requested and received approval to have their own traffic signal put in front of their church there are thousands of people that go to that church on sunday sunday services wednesday evening services there is nothing at all that would preclude that contributor especially with the goodwill that the contributor as an organization has generated in the national community of trying to make contact with church leaders to make arrangements to where vendors could go on to the private property but could interact with church members in the very large parking lots we're standing on the church property as people come in or out of churches now surely if there is if there is a captive audience or a target market that they would like to to to be able to interact with or to attract i cannot imagine a better a better group of people that are available but again limits and baptist well for the record i'm not suggesting that it be limited to baptists there's not a there's not a freedom of religion issue in this case as far as i know and brentwood is a multi denominational city if you will but the point is the burden is not on us to try to demonstrate how they should do their business or what they think is the best means in which they need to engage in that respect they are no different than any other type of commercial entity or business that comes into a market or comes into a particular community there that there are certain parameters and waltz in guides if you will that despite their claim for first amendment amendment protection and despite there they are admitted and acknowledged good will in terms of what their mission is they still have to comply with what the constitutional limits are and what the first amendment requirements are courts have consistently held courts in that circuit have held that the standard is that they are not guaranteed the best means that is out there rather they are given a reasonable opportunity and all of these other alternative means of communication which we have talked about be door to door sales be it sales through or at the various churches that are in brentwood sales that are in parking lots i'm sure it's the same here in cincinnati but throughout middle tennessee goodwill industries has their trailers that are set up in various parking lots in from the kroger shopping centers just up curiosity it and i've been a little surprised by your reliance upon alternative means of communication involving private property i didn't anticipate that turn that would argument that argument would take plenty of site this case for on this second circuit called barry versus city of new york in which the second circuit says that you are entitled to an adequate alternative public for for your means of communication so how does that square with say i'm not sure how going door to door fits with public because you're on private property but search surely saying you're going to go to a private maw are you going to go to a private church doesn't seem to square very well if we want to talk about the public areas that are in brentwood that would be available one we can go back to the sidewalks to the extent that they are considered part of the public right away i would also cite the court's attention of the fact that brentwood has a very extensive and very very well developed public park system there's an extensive system of trails bike trails hiking trails and the like that are throughout the city the city has a very active program of a concert in the park type series virtually all of the ball fields the sporting fields that are in the city  used in various times by soccer clubs baseball clubs lacrosse clubs those parking lots that are associated with all of those areas are public areas that would be open and available to any vendor that could come in as long as they comply with the terms of the current ordinance the revised ordinance in terms of no direct interaction with individuals that are in cars from either being in the street or being in part of the public right of way mr burns were  s accidents involving these people in brentwood that led up to the citations no so what's the legitimate government interest in  this case well it's preventing the type of horrific accident that can occur and will likely occur by having someone standing in the roadway engaged with someone in a car and open normally encountered these  a red light in the cars or stop they do and in the record there is ample evidence that we've put in that demonstrates the literal risk of vending itself that is not an issue respectfully respectfully judge because they have admitted that vending in the street is dangerous can be can be it can be certainly in conclusion i would offer that one we do not believe that the burden is  the city of brentwood to the extent that contributor wants to make it out is difficult to conceive how it is that the city could go out and essentially do the work that they all to do themselves in terms of there being other alternative means of distribution or communication i think common sense and logic also dictate that if their true goal is to have an opportunity to be able to interact and to be able to speak and to have the time and not be under the pressure type situation that they run into if they're vending on or near the street then certainly door to door sales sales and other less hazardous less risky types of environments be it be it other side areas other public areas church grounds in front of other commercial entities your honor one point to get back to with you on an issue that you raised is that yes i certainly acknowledge that  owners of private property or shopping malls or developments or things like that they can certainly have the right or certainly may exercise their discretion to say no we do not want a vendor here but that is no different than an occupant of a car not rolling down his or her window and saying i don't want to i don't want to deal with you right now i don't want to buy a paper i don't want to hear your story i don't want to talk to you but i think we can all take notice of the fact that there are circumstances for example salvation army the cub scouts the boy scouts there is certainly the possibility that there are owners of private property that would be open to an organization like the contributor and i would further  opportunity to go on to the grounds of churches within brentwood is another ample alternative means of communication were there citizen complaints that led to the change of the sword not really  there were some that were generated through e mail the discovery that we had there were a few but the reason that it was generally the reason that the change to the ordinance came about was because of the citations that were written in the constitutional questions and recognized the issue and decided to revise it and clean it up and produced what we believe is the constitutional ordinance today thank you thank you  no specification regarding public buildings in the specification regarding parks it makes reference to twelve thousand five hundred housing units talked about or housing density of nine hundred persons per square mile talks about retail sales that's it nothing further i would also suggest to the court that the whole argument that mr burns made this morning regarding churches is nowhere to be found in the record this case nowhere that's new information for the court and your no control over what happens in the private in the private market permission today could be taken away tomorrow what we're talking about is the accessibility of the contributor as vendors to the public flora brownwood imposes an absolute ban on the distribution of the contributors newspapers documents and motor vehicles with not even an effort to provide any kind of free speech zone for that reason we believe the court was in error below we asked the court to reverse the decision instead of here yes you know how in the context of your desire to distribute these papers to people in cars going presumably going to work or going to shopping wherever they're going what would be an alternative free speech well for example your i would that i understand maybe a side somebody that's standing up on a box of eking on a corner but how do you provide it for what you want to do well there there are areas of brentwood i think this is in the record drawn of where there are areas less traffic and more vehicular traffic now it doesn't take too much to say well if we're concerned about traffic what's first of all carve out you know say we're not going to allow this in the downtown area brentwood to the extent that it was a downtown area that you'd be satisfied meaning what the whole idea here is it's dangerous these people are going to get run over by a car or your honor we disagreed with the the position that this was such an inherently dangerous practice that it should be absolutely banned we recognize that there is obviously danger any time anybody walks down the street there was no proof in the record that really focused on the number of accidents that occurred to individuals who were standing by the side of the street now