objective of the first amendment is not efficiency in efficiency is the reason why pittsburgh passed this blanket ban on speech on thirty feet of a public sidewalk and they did so without considering the less restrictive alternatives that this court said that it was obligated to that is enforcement of existing ordinances a narrower injunction trying an injunction first or adoption of an ordinance like face or new york's anti that this court said that taking the allegations in the complaint is true that the burden was significant community strip with that cohen and for that reason it would be the same burden if that was substantiated when you when things move past just the stage but here we're doing a willing one summary judgment and so on that threshold question of whether the burden is indeed a significant one a serious one as the court described it in mcallen triggering this requirement that the legislature considered alternatives or tried alternative  what do we have in terms of undisputed facts in the record that support the existence of a serious or significant burden well there are multiple understated facts but i think the first thing to take keep in mind is that in shank the supreme court said that a fifteen foot boppers on there was a significant burden on speech and that was confirmed in hill mccollum and recognized by this court and really one and the second thing to keep in mind is that it's a very low burden this court said in really one that if it makes the speech more difficult that's a significant burden on speech and it certainly didn't case the my clients testified that it makes it more difficult for them to identify who is going in to planned parenthood there's some disputed now but this to court discounted that but i believe the court got that wrong because the supreme court in mcallen said that was a significant fact and the reason why it was a significant fact is they have a difficult time establishing first of all who it is and then being able to engage in a quiet one on one conversation about an intimate five steps and two to three seconds to move through that has developed in discovery that the speakers can actually cross that zone they're not limited to staying what they can but your honor my clients also testified that it's difficult to cross on first of all you can't have any literature in your hands when cost so i'll be wearing a shirt that says anything you have to go all the way around difficult understand it it doesn't say you can't be there and you you could walk through and say something to the to a person you could stand there wait till somebody comes every  mean i don't understand it no matter what you're against the only thing you can do is congregate but troll that take it or demonstrate it doesn't say you can't talk to a person even if you're in the fifteen foot barrier i just don't what what what's the restriction on speech i mean well i mean it's a minor my clients can engage on the one one on one conversation inside the zone that they would like to that's why not because of the face of the statue right this is a facial challenge i understand your answer to relate to the designee of the city saying yeah on behalf of the city right they're saying that they're saying you can't talk within the zone you can't leaflets you can't speak within the zone unless it's about the weather or something or sports or sports or time of day or directions that set those for things but but they have interpreted it to apply to any sort of counseling yeah but but i on occasion not so many years ago when the city of pittsburgh passed an ordinance and it was challenged under federal law that you couldn't live in large parts of pittsburgh if you had certain criminal records and we ended up deciding it's one state all that the state law didn't permit even though the challenges were primarily federal well if i were the judge and somebody was just talking to somebody in the fifteen foot so they were challenged because they were standing there and i saw somebody going in and thought long the laws pretty the law was written in a very weak way in a way your honor i just would submit to you that at least according to this court's ruling in brown on page five seventy four that brown versus pittsburgh very first time this ordinance was before this court said that the city's interpretation is taken into account when the court considers a patient claim and here it's undisputed that the city interprets it to prohibit presume a narrowing construction of a law to which it's fairly susceptible rob so i to the extent that there's been that interpretation of the terms demonstrate and picket why wouldn't we give it its it ordinary meaning the meaning that the supreme court itself and hill made clear that it understood the terms picket and to demonstrate to exclude casual conversation well i certainly  for the content based aspect of our challenge absolutely that comes into play now i have to read and mcmullen we think that you certainly have to read hill in light of those but at least as to intermediate scrutiny whether or not there is no dispute and certainly viewing the facts enough and a light most favorable to the plaintiffs there's no dispute that there their speech is prohibited in why does it also go to the extent of the burden on the because if it is permissible under th statute for your clients to engage in one on one communications in longer conversation levels within the buffer zone then would you agree that the statute would pass intermediate scrutiny certainly absolutely but it but to date and my colleague can you can speak to that when he gets up here they have in their brief said that that's not true they said at the permanent injunction stage that that's not true and certainly the way that it's being applied you know are and we still hear that but this is a facial challenge or that that's what i was getting at right i mean i guess what i'm trying to get my mind around is demonstrate could be interpreted to mean demonstrative action right waving your hands in somebody's face you know just accumulating that could be demonstrated right but when you read the record in this case the sergeant homo's says no no demonstrate means talking to somebody right but congregate i think when i think congregate i think a group of people getting together he testifies that someone can congregate by themselves and that one of your clients can't stand leaflets right right that's the record we're dealing with so we've got this strange dichotomy between what the plain language seems to suggest and what the city's designee is saying all that means so what do what do we do with this do we need more fact finding on this or or we haven't even gotten to gilbert you know we'd be time to gilbert right which i think is sort of the polygamy question which is is this a content based statute or is it a content neutral ordinance well it's not and i'd like to clarify just one thing this is not you not what it's not content i also like to clarify that this is not just  done and maybe maybe a person least in theory could stand outside and see a child being taken into our spittle and wonder gee maybe that person is going to get that tonsilectomy and i better officers could take the statute that was so narrowly written and say twice so broadly and then we're supposed to accept that reading and then throw out the statute when the statute doesn't say that you know the statute only talks about ticketing patrolling to me i think of a good showing is like a policeman's walk back and forth have a jewelry not it's also as applied if you look at twenty nine foot no one of our brief explains that all we dismissed was be as applied to the discriminatory force me and didn't dismiss the as applied as interpreted by the city combine that with the brown statement if you take into account what they say for the face of good or at least for reasons whites content things the first is there is an impermissible mode mcmullen said that it's not content concern for the impact on the listener that's not content based in the record is very clear that what is trying to be done here and this is a quote from the chair of the committee that heard this is protecting the listener from on one of communication and that's per that's intended to justice thomas opinion in in re says step one we don't look too intent our job or our task here isn't to try to discern what was in the mind of the might the task is to look at the language of the statue ordinance it has thirteen whether it is content based or not right and so that's one reason why it is and i don't think you have to guess that's in the record with their intent was secondly it discriminates based upon the function a purpose of the speech and after read function or purpose of the speech could include demonstrating picketing congregating or patrolling and what the way the city has interpreted it in page fifty one of their rule of law from hell and so i think that's important obviously this court can't overrule hill and i'm not i'm not suggesting they can i'm just suggesting that this court read hill invite of we'd read scuse me reveal invite have read scuse me  mccullough because mcmullen also said that if you have to look to the content of what's being said then that is content so what you really have is whole that that any ordinance any any restriction on demonstrating within a certain perimeter or picketing within a given perimeter i is subject to strict scrutiny i certainly would if after a read but of course i don't think the i'm sorry we just advise judge greenberg's connection ended so we're going to have to take a pause until we get him back on the phone or any restriction on picketing or demonstrating would be deemed content based and there are subject to strict scrutiny which would in essence mean that even a case like snyder which just dealt with  is my understanding snyder versus phelps is sort of the first amendment as a defense to a defamation claim because they were picketing at a funeral of a soldier and the court said that that speech was protected and they couldn't be held liable for defamation because that speech was pretty acted under sniper suspects that's my understanding and maybe i'm misunderstanding what your honour's talking about but i think there difference is first of all there are multiple reasons why this is content based and i've already mentioned the fact that the impermissible motive certainly has  judged hartmann pointed out you don't even get to that if it's unconstitutional on its face but it is unconstitutional on its face because of its function and purpose also because it discriminates based upon speaker identity so interestingly the way that it's been interpreted by and the injunction that was issued by the district court is that my clients can't go into picket to demonstrate and either can planned parenthood police but they can be in that zone to patrol and to congregate and no mistake that is making a statement as a matter fact of their training manuals says that page thirteen thirty nine of the record that just the fact of them being there in their yellow base bests makes a statement and under read the fact that it discriminate based upon speaker identity makes it content based and then of course we have as we've already discussed that it the fact that it discriminates based upon topic certainly in hill the court said that it was just  the casual conversation didn't mean that it was content based on justice kennedy's dissent is interesting he said that's astonishing and i agree with them but there's some there's some support for that now and read to say that it's astonishing because especially on this record where they've conceded that you can talk about the weather and you can talk about sports it's not just it's not just asking the time of day and asking and after read which talked about directional signs and time of the event i think that that is significantly distinguishable enough especially in this case where you have the other factors indicating that it's content based that goes back to the interpretation of the statute one on one communications in normal conversational levels are indeed prohibited within the zone under the terms of the statute i'm and i want to ask you because as i understand but the district court's opinion and one we explain why that is we still have an as applied challenge we just dismiss that aspect of our challenge that had to do with disparate enforcement and that's on page eight so you see it in footnote one that stockett's numbers twenty nine and thirty one of the docket and so that's a due process or you know it's not just the selective enforcement viewpoint discrimination that was withdrawn in the district that's correct we didn't withdraw our as applied challenge to our first amendment claim that it violates the ordinance violates our rights by restricting our speech inside the zone so i think that's very clear in the record i think we made that clear in our brief that hasn't been challenged by the city include normal conversational speech you are winning by losing right because then your clients can leaflet they can speak they can go in council they can do the sidewalk counseling etc right if that's what demonstrate means of demonstrate means you know just to kill a thing you know being physically active in your clients are not interested in being physically active they're interested in counseling and trying to change hearts and minds then the ordinance statute sort of narrowly in in the normal wording to say that it doesn't prohibit speech it doesn't prohibit leafleting it prohibits demonstrating and picketing congregat wrote it the way it was written well i think you oughta makes a fair point because the part of the ordinance that is no longer in effect specifically refers to counseling and education and all counsel for the city and said i don't think this even prohibits what with my clients sidewalk counseling and the counsel for the city reiterated no it does and since then they've said that it does now if the court  you may please the court my name is matthew mchale i'm here on behalf of the city of pittsburgh the court should uphold the city ordinance against plaintiffs facial challenge and and i would begin first by just addressing that issue it is my understanding as i believe is reflected in the proceedings that the point is have dismissed as applied challenges obviously that's up to the court to look again at the record just to clarify as the city said in its brief we take the position that as applied challenges our own and it's just a facial challenge right in the facial challenge is a different standard than  first amendment cases right it's easier for the plaintiffs to meet its if a substantial number of its applications are unconstitutional judge in relation to the statute plainly legitimate sweep right the court the court has said that in in the earlier decision in this burden to me there's also the principle that the court should avoid constitutional questions where fairly possible and that would also i would suggest go to the issue of the readers down of gilbert argument whether it's content base account and well let's let's address that because our questioning of mr terry and i think sort of posits that there's a possibility here that the plain language of this statute could be construed as content neutral but yet we're looking at a record here that it appears to me to be full of content based interpretation starting with the city's designee you know the city's designee said congregate is can be one person correct he did testify to that i've and he also you also said that you can talk about the weather and talk about sports well i guess i would suggest that  there's it should not be conform just because one way to look at whether it's content based or continental i would suggest is is it possible to imagine certain subjects being discussed you know in a certain manner where the ordinance would prohibit does that kind of manner of expression and what i mean by that is this the sports question the sports issue is a good one i believe that if you were having a demonstration that involved sports like let's say you had pro con tom brady factions or something like that people who wanted to have some sort of public now would environmental issues or or health care or any number of things while it's true that if people are discussing that subject in a manner that is just casual conversation that's not prohibited by the ordinance if people are attempting to persuade others of their views in the manner of in a manner such as denims demonstrating then that would run afoul of the face of the ordinance and i mean is that how the terms demonstrate and  involved stay one on one conversation that is designed to persuade someone of something that's a fair question and i would so i would say two things one i mean i would agree that with opposing counsel that as i would suggest as written and i'll get to that and certainly as as understood now by the plaintiffs and by the city sidewalk counseling sidewalk advocacy has been considered demonstrating at least and and second not so in direct response of that question i would say that the supreme court in the shank described i believe the phrase was the form of can't impair the ability of the speaker to convey that message right on a public street and you and i would say that but i guess the point is and we don't this is the way that our brief tried to communicate this point about what is the meaning of demonstrate i would suggest that the however much shank has been undercut the use of the term imad opinion was is instructive as a matter of what is the word and what's the word demonstrating mean involved traditional demonstrating right i mean that that was not what is being advocated here by your colleague on the other side of the aisle that that the pla represented what they seek to do is engage in in one on one carrying personal conversations in conversational tones and volumes right so that's that's a far cry from the conduct that was it issue in shank and when the quote was describing the term demonstrate there is something that could be that any reasonable person would understand what was prohibited they were  facts of the case and in the ordinary meaning of the term they seem to be referring to the conduct that goes along with demonstrating as we generally understand it well i  suppose i would i would push back a little bit on on the notion that it does not that there is a consequential demonstrating that there aquinas preferred methods of advocacy somehow but that somehow wouldn't fall under the term demonstrating let's look at another way because we we have from read and read makes clear that if what you have to do is examine the actual content of the speech to make a determination about whether falls within your means or not that it's going to be content based if you have to do we could saree examination to determine that it is signage as opposed to another matter of communication then it's going to be content neutral if you're telling us that the statute as you when you understand the terms or the city would construe the terms means that we would have to a court would need to distinguish and police officer would be asked to distinguish between a speech that was persuasive versus speech that was simply informative that seems to grapple head on with this concept of the actual content of the speech and making very delicate determinations about whether something is persuasive or informational and it if we think that that makes it content based on we that that supports the ordinance there are also aspects of the organs as written that further show that it is a content neutral regulation on location and manner of speech like congregating for example  or or picketing or patrolling which as to how would how could one person standing stationary in how could that be congregate well to the extent that person is approaching someone else bruni said she would actually stand in the same place others other at least one other did say that she will she or he would choose to stand a couple feet a few feet further toward the doors statute can be construed could do surely but in the actual case where there's actual facts you might have an unconstitutional application of the statute but we don't have a because we don't have in the application of the statute is really understand what law you are i would that but i want to say one thing in response to that which is i appreciate the concern about  parade of hypotheticals which is a useful exercise but i would actually just say that i do actually think that there is a there is a rich factual record here a big goes to a critical issue in the case now that there have been a factual you know bruni had received from some of her allies in terms of engaging in the sidewalk advocacy and i think that reading that gives you a sense of on a very while the plaintiffs sort of focus on the available alternatives issue you don't get there i would suggest unless the plaintiffs have shown a substantial burden on their free speech rights and we think that one thing that that log shows them that they knew of that complained about a buffer zone being a problem and further that they had never heard from anyone but they spoke to any of the patients or people company patients or anyone th bad spoken to in the years that they've been doing this work no one to their recollection told them oh i'm glad you know anything about how the buffer zone was an impediment of some kind to the  message back just to say that there is some lack of collaboration that could lead to a credibility determination at trial by a trier of fact as to why it's testimony that they are not as successful as they otherwise could be were that they cannot be heard over the fifteen foot distance or that they are not able to leaflet because patients are surrounded by ask or it's there's also there's there is country testimony from the city's witnesses but we have disputed evidence in the record that goes to the question of whether the burden here is significant and house what is the extent of the burden the plaintiffs testified that they instead lightly different ways that they have a feeling that they would be otherwise more successful without the buffer zone but when you dig down a little bit underneath that and look at number one compare it to mcallen in mcallen there was also a developed factual record but the difference was stark in the court's opinion because after  right there were there were to be sure that there were there were findings that were made by a trier of fact and a fully developed record we're on summary judgment and where we have a district court who is making statements and that include for example that the district court itself is drawing what it believes is the reasonable inference that the reason women are not taking coming out to get literature is because they don't want to as opposed to they aren't able to hear or they i the at that distance the they're suspicious of someone on the other side of the boundary isn't that person a reversible  as i recall mcallen and two and two other plants in that case describe i believe something like after the massachusetts law went into effect they were able to have something like it like one percent of their previous success rate and that wasn't really disputed in that case and secondly here i don't think it's enough to just say essentially  speculate and to say i feel like we would do better without the buffer zone when the basis for that is no comparison to other locations without a buffer zone no experience with situations before the buffer zone existed in pittsburgh and then when asked why you know what why do you feel this way why do you think  you would be having more success i want to characterize all the responses but one response was well there's a i think there's a mental or an emotional barrier for people to come and talk to me but where there's there's no of the dozens of people who have been recorded in the plaintiff's own log of talking to them and the conversations that the plaintiffs and other sidewalk advocates have with with women and people of all sorts patients and non patients are quite you know intense and in some places for no one to say anything about this perceived this i would say speculative or you know inability or difficulty and sort of hearing the players message and that that is not reversible error i would suggest but if it's speculative it does seem to be the inverse of the summary judgment standard because of its speculative then the speculation should go in favor of the nonmoving party not the moving or right well i would maybe then go beyond speculate because as we began our brief and which i think  sort of disparaged it almost as i think stale but i would just and by saying that going back to what ms bruni said in response to the question about whether she had evidence that willing listeners are not getting her message and she said that she didn't have any and it is important to the city that the plaintiff's first amendment rights and they are able to exercise their first amendment rights and we believe plaintiffs there is at least their own testimony on the record that they can't be heard at this distance that they are not able to give literature because patients are surrounded by escorts that they're not as successful as they could otherwise be and that that women are not coming outside of the perimeter because to t literature or to communicate because they view people on the other side of that as suspicious given the distances that the district court concludes that there is undisputed evidence in this case the plaintiffs are able to communicate their enti using their preferred form of expression how could the court conclude at this stage that that evidence is undisputed well the players need to show there's a substantial burden on their right to communicate and what the record shows is that there is not a substantial burden on their ability to communicate that message just make sure that there's a genuine issue of material fact as to whether it's a technical you know because the again there is not that there is not the kind of concrete evidence that a plaintiff would need to get past the summary judgment or to defend off a summary judgment hurdle it's not enough to just say it with no sort of specific basis for the feeling that there is some sort of you know barrier to communicating their message that there needs to be some  some grounding given to that and where there is not anything like the kind of evidence in mcallen that led the court to call that the supreme court to call that an extreme law and has you know put the plaintiffs in that case like across the street and well well down the sidewalks here the the point it's all agree that at most you're talking about like two steps to conversations with people who are in the zone people take leaflets there's there's ample evidence that leafleting continues to a large degree and and again that the plaintiffs have communicated their message in a way where at least it's not the relative success or failure rate that they may have is not being substantially burdened by the ordinance the questions i have a couple things i'd just like to point out and that is first of all that the burden is not doesn't have to be substantial in order for intermediate scrutiny to apply all that is required as this court recognized one is that the speech be made more difficult and that's enough to shift the burden to the state to show that they considered less restrictive alternatives the city in this case has had the state apologize and they simply haven't done that's right and this supreme court talks in terms as well of the of a serious burden so when you say just making it more difficult are you suggesting there is no materiality standard at all that that less restrictive alternatives it would or are and here's why it still has to go through the process now it may be easier to establish that substantially less restrictive alternatives were tried and or didn't need to be tried because they weren't substantially less restrictive but the standard on page three sixty seven of bruni quotes mckown it says when the government makes it more difficult to engage in these modes of communication in imposing that it imposes an especially significant first amendment burden and that's enough to trigger the process of having to shifting the burden to this to the city so that they have to show that that's restrictive offhanded and i think it's undisputed on the record that they didn't consider less restrictive alternatives so we should survive intermediate scrutiny block to also point out with your honor's permission that the facial challenge that the salerno standard doesn't abide stevens doesn't apply and in this court said very clearly and bernie we don't have to dream up some hypothetical situation where the ordinance might be hype might be constitutional all that's required is that you apply the test and the difference between a facial as applied challenges really as to the remedy not in the test as applied i think that's made very clearly very clear and bring in bernie one and the supreme court case and stevens i think i just wanted to also clarify that the this case is very much like mcmullen when it comes to the evidence of significant burden and we've as i've said we've catalogued that in our required the page is forty eight but they also had success over eighty successes in mcallen and they they didn't  have any of these deep statistics basically witnesses mcmullen said is had far fewer instances of people being persuaded even though she had eighty that were so the evidence is very similar to mcallen as to the actual burden and of course when we just wanted to point out too that in shank that certainly there was a prohibition on demonstrating but the injunction in that case which was which is much narrow up brod ordinance that applies three sixty five days a year twenty four seven did it allowed to sidewalk counselors into that fifteen foot buffer zone and then i just wanted to reiterate i know i've already said this that that shank was very clear that a fifteen foot lockers all made it very difficult to have one on one conversations and to exchange literature and the supreme court in hill was very careful to point out that that would have problematic but eight foot zone and eight foot zone wasn't which was what it was an issue of hill and more importantly as as judge hartmann alluded to in hill they could stand right by the interests long as they did move and they could say whatever they want to and they could hand  literature to whomever they want to they just couldn't approach someone and even in hill one thing that's distinguishing this from hell even in hill the court was very clear that if there was discrimination based upon topic or gay had to look at what was said in order to enforce the ordinance then it was unconstitutional i think based upon what my colleague said just now and the way they've interpreted it so far and that is that they prohibit advocacy you have to look at the content of the there isn't any reason why it wouldn't your honor other than the fact that the way the city is interpreted it the way the district court interpret it applies makes it applied to sidewalk counseling in this particular instance and and i think that's problematic and it gives you the same place that they were in mcallen where actually they've banned even standing there here here they're making distinct distinctions based upon speech content and i think the court mcmullen said that a paint sidewalk on a painted line on the sidewalk is easy or easy to enforce but the prime objective of the first amendment is not efficiency and that's really what this is about it's easier for the city to enforce the painted line on the sidewalk that's why they passed the ordinance that's why they