because of his unpopular message creating three constitutional problems firstly unlawfully restricted his free speech activities second they importers given they enforced unlawful heckler's veto in third they violated his right equal protection of the law this case is before the court on it from a grant of summary judgment by the trial court in favor of the defendants runners this case involves the right of individuals to engage an unpopular speech on the public streets  sidewalks it's well established that the public streets and sidewalks have been held out as a traditional public fora open for the open expression of all ideas including public interest excuse me including unpopular ones mr happy with respect to the first amendment issues how is this case different than our decision starts it's going to thank you ron in start cell start telling farm it is different in several ways first of all the law that the court laid out in the starts of decision is very helpful and in cases and providing guidance for the rights of individuals to engage in the public streets and sidewalks and to engage in public i'm popular speech in the public for however factually it's completely distinguishable first that case involved speech was inside the permeated area of the event in our particular case the incidents that we have with one possible exception incurred outside of a pulmonary second the third circuit in this decision found that the plaintiffs had acted intentionally to disrupt the event there and because of that they found that the police acted not because of the content of the speech that was being conveyed but rather because of their conduct well there was actual disruption there the the court found there was actual disruption there yes and the court may in its opinion cited to a couple different factual findings that it made to show that disruption so the letter ye but what do you have do you agree that the first and then does not require the police to wait until there is actual disruption your honor i do agree yes i do agree that there are circumstances where the court where the police have the right to act before there's actual violence or rather how they know whether they can do it and when they can't where do you draw that line you know and that is to depend on the facts of the case but that's not the facts that we have here and what's well let's talk for a moment about the proposition eight protest yes from the police records there in the appendix show there were about six thousand people present at that event that twenty five hundred of those people surrounded marc habits and the repent america group i mean that that was had you have to agree that was a delicate situation that was a time bomb wasn't it may or may not have been a time when you know they have to wait to see if it is a time when you're on or if the time bomb explodes indicated i think yes there are some circumstances where the police can act proactively but i think when you're here on a summary judgment case and the standard is that the facts have to be viewed in the light most favorable to the nominee party and if there's any issues of material fact and so we judge it should not be granted and i would submit to your honor that whether that was actually a time bomb that justified the proactive response by the police is an issue of material fact that should have been submitted to the well sure but your honor yes your honor but remember the first amendment if it protects anything protects unpopular speech in the courts have held that the police have an obligation to print to control the crowd before they restrict that speech look at the terminal of a chicago case that's what the that was what that case was all about a crowd that was about to break out in a riot and the police arrested the preacher because he wouldn't stop speaking on how the supreme court pride fest and at penn's landing for example in those instances the facts are in the record established that the police single mr maher cabbage out because of the message in viewpoint that he was convey other people were allowed to move about freely to interact go wherever they wanted to talk to whoever they wanted to the evidence shows that there were people from an animal rights group for example that where they're allowed to solicit signatures and talk with people interact one on one allowed to wait and gauge people in conversation at those events he did his preaching with with no interruption he could display his signs hand out leaflets right you your only argument with reference to those events is that he wasn't allowed to stand exactly where he wanted no your honor i respectfully disagree that's not our only argument our argument is is that mr ma singled out for these restrictions because of the content of his message and as this court and because of that we have a history of being involved in this order of events absolutely not your honor there is and if there were again i would suggest that we're here on summary judgment and those would have been facts that would have been an issue that would have should have been submitted a finer of fact your honor one of the things that i want to point out is in its decision the trial court relied to the starts of the session and relied solely on the start sell the session to justify the grana summary judgment and in doing so it made a finding that mr maher cabbages speech was not restricted because of its viewpoint or content and again i submit that those first of all that the evidence doesn't support that when you look at the comments of mr that the  they know each other there's actually you could characterize them as you wish to characterize some of them that's just kind of banter back and forth i mean these are like little friends i don't mean to suggest that they know each other i mean this is a situation what you're dealing here this is not one event and then you know the speech we look at both words this is a pattern a situation you know this is what they all know exactly what's going on here your honor and you're looking at it under a microscope we have to examine this one discreet you exchange of words you do have to examine it with all due respect on a with respect to the evidence and the facts that are in the record related to that event if captain fisher was relying on his experience again that's an issue that should have been presented to the finder of fact not decided on summary judgment what we know from this record is captain fisher's statements to mr mark cavitt that i have to put you concerned how the crowd's going to react to your message and i submit to your honor's that that's a viewpoint discrimination as a matter of law is unconstitutional and even if it's not viewpoint discrimination under the mctiernan versus city of new york case because the  the office or was imposing a time placing man or restriction ad hoc on site it's subject to a strict scrutiny analysis not the lower standard that the trial court provided in second i it's entitle to a strict scrutiny analysis because it clearly was based on the content of mr maher cabbages message shown by captain fischer statement that he was reacting to the crowd's likes or dislikes if the police console the restrict speech or honors because they're concerned of the seat the the speaker how the crowd right might react then free speech means nothing because they can tell anybody part of the test is the ability of ample alternative channels not underage and not under strict scrutiny analysis ron and i submit that it's the strict scrutiny analysis that applies in this particular case for those two reasons mcternan versus city of york says that when time place and manner restrictions are imposed on site by an individual police officer strict scrutiny applies not the mower standard in the trial court applied the lower standard second it was a content based restriction because captain fisher was imposing the restriction out of concern about the crowd's reaction to the massive in the forsyth case tells us that when the court when the officer read responding out of concern about the messages being conveyed that by definition as a content based on this district court description did not rule on the defendant's motion for qualified immunity as the first amendment claim only should apply here i mean this is these were unpredictable volatile situations where you had huge crowds hope divisive subject matter and  anything could have happened here you know and isn't this precisely the kind of and this is not just one two three four events ms history of these things is an art isn't this situation the whole picture the kind of situation where one really has to do for two a police officers discretion to a great extent you know i do see my time is up as are going to answer your question you know first of all i'd like to remind you that mr mctavish was singled out by the officer for this particular restriction first of all second of all it's really hard for the head of the civil affairs unit of the city of philadelphia police department to argue that he's not familiar with what the first amendment requires concerning the right to free speech and engage in free speech in the public streets and sidewalks also in the record there's a training video that in which captain fisher states in that video that he's well aware of what the rights are that people have on the public streets and sidewalks and what the police are supposed to do to write about a pat we're talking about a pattern we're talking about these guys or they've known each other for years because of all of these events we're not talking about what happens when one guy goes out on the street with a sign that doesn't go to come qualified immunity your honor that may go that you whether we know what the clearly established law is with the one guy goes out there with his with his honor but this is a this is a volatile history i mean on that and i would also if i may the law i would also if i may just note that you'll see as these things progressed that mr mark cabbage has made an effort to follow the guidance that your court has given him regarding how he should behave in the situation he took start sell to heart he didn't go out and do anything that would result in disruption in the events of pride fest he would try to go inside the festival area is where you are again if my my time is up it is ok if i answer your question please i think your honor that it's first wrong and i don't think that that's the question here the quote the burden is on the city to the government to prove that it did not interfere with his right to free speech under the appropriate standard but second of all i would suggest your honor that mr mike cabbage is his ability to communicate that message was affected because he was singled out and treated differently than other people who were similarly situated to him how were they similarly situated they wanted to go was in direct opposition to the view of the speakers who had earned that he speakers at these events they weren't sure holding their sign but their message was allowed to be conveyed while his was because of the content of the message that he was seeking to confine i don't i don't agree with you that morning morning mate place the court i'm jane yesterday and i represent the city and the individual defendants i'd like to pick up on the judge various points if i may the theme of mr harvey's argument  repeated refrain that we can impose a heckler's veto we can't tell him he can't speak we have to control the crowd we have to protect mr mark cabbage and we have to allow him to make this point where we part ways is this judge perry points out in my mind that's exactly what my clients did we held back the crowd we protected mr mark haven't we allowed them to speak here with only minimal restrictions and this occurred admits huge crowds at permitted gay rights of them and if those events we protected him so that he could express his point of view w bullhorns with large signs by interacting with crowd members by using an airplane with a banner that stated for homosexuals dot com directing them to a website all kind and all kinds of ways and  but that is not that that is apparently not enough for mr mark habits mr mark have it mr mark have his claims is a right to a perfect location a right to go wherever he pleases pleases that these events without any direction whatsoever on where he can stand  but the but the starts ok so and the mark have adverse the city of chicago case both establish that that's not what he's entitled to he is not entitled to his preferred location he is entitle to a location where he can reach his intended audience and that's what occurred yelling drowning out the events that were going on that the different factual setting is the new one here it is your honor but but as mr happy agrees it would make no sense to have a rule that says we have to very relevant on qualified immunity it's rail is relevant on both points where i part ways with mr hobbes he seems to suggest that because there wasn't a melee that therefore we can't be entitled to summ judgment and i submit that there are i'll take each i think that we have to discuss the events probably in three different categories so i'll do that and i'll address first the pride day events where we had minimal restrictions and we had a videotape and as you suggested judge barry where we have scott versus harris where we have the facts pretty much laid out force there this court can make an assessment that no reasonable jury could have found that our restrictions were reasonable and i would say that as far as the the standards you can use are things like the minimal nature of our restrictions here that we as the court and i guess i would invite the court's attention to the liberty bell case and mark cabbage versus park service the person upon whom we impose the restriction or that we have to take cognisance of the content of the speech the question and our content neutrality is whether we've displayed this whether we there's evidence that we acted out of disagreement with the speech as opposed to acting for the reasons that we stated which here would be in the case of the two thousand and two thousand and seven and two thousand and eight events that we needed him to stand to the side rather than right in the middle of an entry area where you have large numbers of people who are on market street entering into one being filtered into one small area and that's an area for entering that's not an area for engaging an argument that's not an area for whipping people up that's an area where they can go in and yet mr m because we acted to restrict him out of concern about the crowd's reaction to his message and this court and starts all said the more germane question is did are we acting because we're afraid of an anticipated reaction the more germane question is was it  apparent to us did we act because of disagreement with the speech and where it's apparent that we act that we acted and had respect and understanding that he had a first member right to speak you can't draw that conclusion and i would submit that that's the case here liberty bell case the court made a similar comment when it was discussing whether it could draw a conclusion that whether it could conduct question content neutrality and it said it's pacifically said in that case where they had told him to move away from  sidewalk adjacent to the liberty bell rather than continue to stand there because they had told him to move all the way away from the area they had a problem and the court said if they had merely told him to move a short ways down the block on sixth street maybe we could still draw the conclusion that they were acting for their stated reasons that congestion concern about interest in aggressive protection and i would submit that that's exactly what we did here we just told him to stand a short ways down the block we didn't tell him to leave the area we didn't impose other types of restriction and i would invite the court's attention to a case like startle where the court said and cases like roll the pattern the d c circuit where they where the court says just because we have to take cognizance of the content of your speech as long as there's evidence that we're acting for reasons that are not related to your speech such as concern about ingress and egress such as concern about maintaining safety in order and according to start all this is particularly the case at a large permitted event like like these events that you can draw the conclusion that we were acting in a content neutral manner and i also just wanted to jump to the prop eight event for a moment because there was some discussion about judge perry relying upon the police reports and whether there was a disputed issue  fact there and in his brief mr hall in his reply brief mr hopper you complained that i was relying upon captain fisher's affidavit and i can't do that on summary judgment and it's wanted to point out what i rely upon are the deposition testimony of mr mark ha and that's why that's why we're entitled to summary judgment on that claim even though there is no tape according to the embassy to deposition testimony of mr mark have it he was an event that contained thousands of gay rights supporters he drew a crowd nearby crowd of hundreds of those supporters who were agitated by his message of opposition to gay marriage and at that point the officers didn't force him totally out of the area they forced him according to his own testimony forty feet away and i would submit that under his own admitted statement of the facts we had justification to act there and we didn't act because of disagreement with this message we acted in order to maintain order and the need to maintain order that was obvious why would not the question of whether the motivation was the content of the speech as opposed to some other factor be a question for the jury to decide and in this case judge in ascii i think that you can what to most importantly the minimal nature of the restrictions because again the germane question the most or main question on a content neutral on a content neutrality analysis is whether we've acted out of disagreement with the speech whether we've acted to squelch it or to shield the gay rights supporters from the message which is what the ruled could have happened in the liberty bell case which is why it with a rule that was it was inappropriate to impose criminal convictions whereas in this case you can't draw that conclusion where we just told him to stand over here not there and actually for  sight and sound of his audience right yes your honor and i believe that mark cabbage versus city of chicago echoes that were talks and it's discussion about ample alternative channels where it says you have an ample chicago case expresses skeptic mr uses the same standard i want to be able to make sure that you're reaching your intended audience that's what a sight and sound standard is i want to make sure they can see you i want to make sure they can hear you and that was certainly the case here  i'm wondering since i don't have much time with this is the court interested in hearing argument on the fourth amendment claim judgment grant that that we did have to alternative grounds that we did have the policy that immunity argument and even if the court concludes that there's not enough here to support the grant of summary judgment on the on the merits claim surely there is enough evidence here to say that we made a good effort here to balance the need for safety in order with mr mark of a disability to express himself that all of these aunts and i also just wanted to remind the court that the city has an alternative claim as an alternative ground for hermance on the municipal liability issues that even if the court determines that there wasn't enough to grant the individual summary judgment here that there was enough to grant the city summary judgment on the issue of municipal and thank you if there are no further questions are asked of my grease thank you and as i started out saying this case presents an opportunity for the court to affirm the well established right of individuals to engage in unpopular speech in the public for mr maher cabbage has been accused of claiming a right to unfettered speech on the public streets and sidewalks those words have never passed his mouth nor any tourney was argued for him i don't know where that idea came from what mr maher cabbage does claim is a right to be able to engage in free speech on the public streets and sidewalks in the public square without unlawful restrictions placed on him and without being singled out because of the content or viewpoint is the is the i'm off a restriction here that he had to engage in his community good communications no more than forty feet from where he wanted to be you know out of the un office in no the unlawful restriction your honor occurs when mr maher cabbage is singled out for restrictions that are imposed on anybody else because of the content in viewpoint of his speech council mention the chicago markets or chicago case again when you look at that opinion the court mention the fact that the reason the police acted was not because of the content of mr mark cabbage a speech but because of the conduct that they found in his group impeding traffic and nothing to do with anything else same thing with starts out of focus of the court in that case was not an analysis of whether the action was taken because of the content of his message the court never got to that issue because it found that the police acted out of the context in response to mr maher cabbages conduct that the court found there you know honors again i come back to the fact that this case is governed by a strict scrutiny standard that's a standard that was not imposed on the government by the court and i completely agree with mrs mn that this court should look at the videos of these events and when you look at the videos of the pride festa bents it clearly shows that there was no impeding of traffic he was on a bridge that's two sidewalks and two lanes of traffic why there's nothing in the evidence to establish there was any even a threat of impeding  said is that the government can't simply rely on a monitor and just repeat we have to impose restrictions because of we're concerned about traffic being impeded we're concerned about pub safety we have to protect the speaker then mean anything this court held in us versus marcab it that there has to be something more it can't be a hypothetical concern and has to be a real concern i submit to your to your honor that if this court applies a strict scrutiny standard that the city will not meet the burden we