reserve two minutes for rebuttal the undisputed facts and this case compel at least two clear legal conclusions st the undisputed decades of popular use of highly visible mediums in arterial the city by campaigners activists firefighters panhandlers and other speakers to reach large community audiences of slowed and stopped traffic compel the legal conclusion that these mediums are traditional public fora to distinguish them mediums from others i think or do we have to treat them all the same way well i think it's consistent with the supreme court's approach sense the hate case in  thirty nine to treat classes of public property the same that share common characteristics and longstanding uses and in this case we have evidence that these mediums as a class are typically wide if they're open they're easily accessible and they hosted speech from a broad cross section the community at the st circuit in the current case similarly found that medians as a class or as a group or traditional public fora including the meetings that are in arterial streets that have a lot of volume that are particularly valuable to speakers the supreme court in the what was your answer to question that is to say if you have a median the word the speed limit is sixty miles per hour or versus one where the speed limit is twenty five miles per hour or thirty five miles per hour can they be treated or should they be treated well if i mean just take a step back i'll answer that question w h i think they should be treated the same but if i can take a step back the reason why it is st of all in the supreme court case is be the courts that streets are all traditional public fora and so there doesn't need to be a  into whether particular streets are trishul public fora and in our view it makes little sense to cut out that the heart of these quintessential trishul public for based on speed limit when the supreme court has not done so nor any other court with streets furthermore with respect to the sixty versus the twenty in our view the sixty would actually be more likely to be traditional public fora because these are high visibility high volume streets that speakers of tend to flock to because they can reach large audiences and little time and i think the factual predicate that the city advances that they're speeding cars that are zipping by speakers is simply not well founded or plaintive more testified without dispute that at least teeming arterial intersections particularly during rush hour when the speakers tend to try to make the most of their little resources and time the cars are largely stopped or they're slowed and so you have this large captive audience and what you can see from the photos in the record that we've submitted as well as testimony is around oklahoma city it's the streets that are forty or forty five miles per hour where every election cycle you see thousands of signs in the mostly clustered at the tips of these intersections where they're most visible and so that's the wisdom of the crowd and so back to your question judge hearts i would say that it's appropriate generally to classify this property based on its characteristics and uses as traditional public fora i acknowledge that there may be some exceptions in the case law such as in the grace case when they examined that particular side walking from the supreme court when the cook indicates when they examine the sidewalks in front of the post office but i think those exceptions prove the general rule so if we look at the medium as medias as a generic group for determining it's a public forum do we still have to look at the media individually or at least some categories subdivided for whether it's narrowly tailored for the narrowly tailored analysis why would you say we get over the public for a question that we say is this narrowly tailored do you think we need to look at the individual medias or at least categories of media media and for that judge you know i think we look to mccullough and what mcallen requires is a close fit and so for this category of medians if we assume that there are traditional public fora there has to be at least evidence of a close fit between the evidence that the city of the interest that the city asserts in the tailoring and if the city can only look to individual medias where these categories of individual medias which we don't need to look at medians we don't need to look at that for the germination of whether it's appropriate for them that's right and if we look at the mcallen case of course on the table analysis they looked at actual evidence of you know which side walks in front of which abortion clinic statewide had congestion because past was prologue and they found that because there was only one sidewalk in front of one  that was congested that there just wasn't evidence of a close fit in this case we think it was that was looked at in that case for the close fit analysis not for the public forum no that's right that's right because for the public form analysis the court took it for granted that sidewalk us and as far as we know from the record these mediums that are outlawed are all more than three feet wide and many of them are substantially more than three feet wide and close to intersections where our speakers prefer to stand their other paper covered with mon generally and political activists in fact there's a picture of tina kelly the former chair of the libertarian party on one of the outlawed mediums and she's standing about five or six foot back right in the middle of them the median so she's not actually within inches of the roadway that's a very wide media end eight to ten feet in some of them and up being quite wide but back to the evans i think the point is that in that case the medians that were legal that the court viewed as ample alternatives for mr evans are precisely  outlawed here and furthermore in edmund the panel said that the plaintiff speech was not effectively stifled because he could effectively walk down ten feet from a narrow median and still be just target audience and he did not  our campaigners and our panhandlers that sidewalks street corners and parks and other pedestrian areas in a home city simply do not provide the same access to a wide community audience just take the street corners and sidewalks for example just on the same arterial streets what the political activists say is that look you're so far off from the lanes of traffic on the other side that you're effectively only reaching the traffic near you in the st circuit and cutting noted similar testimony the panhandlers furthermore testify that when you're off to the side of the road it's ironically actually more difficult and dangerous to make the exchange because the drivers have to reach all across all the way across the car in the panhandlers are more likely to need to step off the road to make that it's a complete that exchange and again for circuit there were similar testimony that some of the panhandlers there actually got on the bus to go to other cities because of so few tile to panhandle from the road side now if we look at  cities what i think is the crux of the city's argument in this case which is that in the absence of any relevant accidents that they posit might happen on medians vance the argument that they don't need to prove accidents crashes at particularly problematic intersections we don't even have that here they get misunderstood judges is there any claim that regardless of whether people or injured it causes congestion people slow down  to talk to a protester or to give him their money and so on is that has that been raised as a ground for this restriction a couple of responses to that st of all the city did not raise congestion safely furthermore i think we don't want to lose sight of the bigger picture here which is even if there is a marginal increase in risk from standing on the median versus the road side and by the way the record shows that over the past five years and more people hit on the last five years versus about twenty one on road sides and that's consistent with what our panhandlers testified which is that on the road side it's also markedly more dangerous because you're further off from the driver's line of vision as opposed to being on the median roadways a small number on roadsides but none on medians but i don't want to give the impression either that if there's an accident on a meeting that suddenly became is up and we lose because these traditional public fora have so have hosted so much beach safely for so long i think it would be incumbent on the city if there were a handful of absence happened to look to see why they happened if they happened at nighttime in less restrictive alternatives may very well be to limit their places where the demonstrator some are some are not judges are i think the record reflects that regard there are photos also on the record and you can see that some of those meetings of crosswalks some of them don't but the record also reflects plaintiffs have had no problems accessing these mediums waiting for a red light to cross the road safely and get on these meetings and they've been on there for decades without any problems at all and so i think this is a kind of risk that in the traditional public fora and i think also that the city's common sense and logic arguments may very well be appropriate under rational basis review if it weren't contrary to the evidence in the record but certainly under title may it please the court man to carpenter katherine campbell on behalf of the police the city of oakland the city and police chief william city in his official capacity this case is about me and safety there is a discussion of form analysis and we believe that this court should consider the individual medians at issue here which are median in the middle of streets with speed limits of forty miles per hour or more the testimony presented at the trial was from our witnesses city engineers explaining the arterial roads are meant for moving traffic not only mediums that have been hit by cars showing the tire marks in our expert witness testify in the trial of this man or that those were in fact created by vehicles smashing into the sides of the median but as well as pictures of vehicles going pretty regularly oh your honor actually the testimony at the court by expert witness was that the indications of the tires do show that they went up onto the median it wasn't simply that they drove by and rubbed which just as a matter of point even if they were just going by a route they still have mirrors that hang out that or potentially dangerous to food restaurants but that didn't show that they actually went up onto the medians there were pictures of accidents were vehicles were stopped on the median after an accident in the intersection there were police reports that showed vehicles traveling on to an over the median for long distances and not there but in fairness any of these  involve panhandlers or other demonstrators that were injured or in any way through likely during those it at those accidents there were and there was not a person present on the median but they were location panhandlers and other political activists have been known to stand in the past so it was lucky the at that time no one was harmed and that's why the city of the los case has indicated that mr palely is not required to wait for a death or an injury before they take action speech here one of our most valued values highest burden values so is the fact that i mean it's not all surprising that there are over the so many miles driven that there's go some connections with medians but it just seems that there's there's really burge little or nothing that shows that a person on the medium was threatened or had the dog or or anything and even though there was one when you consider the miles i mean even that i wouldn't think would be a very compelling argument against free speech so i'm troubled about the impact on this high value of free speech that this ordinance is well two things to that your hon st it was testified by our police officer witnesses both chiefs that he and sergeant valor that often the people who are involved in these activities such as panhandling do not come forward to police so that possible that there were interactions where a person had to dodge vehicle and did not report it but secondly the reason i agree with you that free speech is very very important and the reason that the city of oklahoma city has taken action to protect those but yesterday and it recognizes that speech is that we've narrowly tailored our ordinance to only applied to the most dangerous situations both chief city and started valor testified that there's a range of danger they would tell you that if they were standing here today all meeting in the middle of the street  dangerous if you're standing in the middle of a street however in the in the range of safety the safest location is on the side of the street where a pedestrian has more room to get out of the way should have vehicle be approaching the nd dangerous location is on the median where traffic is surrounding them on all sides and where they may be they may have their back to traffic not paying attention not be able to respond and the rd location is standing in the lane of traffic which are ordinance does per in this situation the city of oklahoma city was presented with complaints of dangerous conditions very similar to what was in evans if you read the evans case it talks about several close calls where  in evans there was alternatives available you could often move just a few feet down the median to get a broader median here the alternative is to move off the side of the road where a to the edge you do the sidewalk side where the signs are less effective and more panhandling is essentially not allowed or distributing brochures and broke and pamphlets would not even be effective because you're on the passenger side of the car well your honor i would submit that this is very similar to evans because in evans we had the plan the plaintiffs who are able to move down to a wider portion of the median here tell them across testified that he previously before the ordinance went in place used to panhandle a rd inmate at the corner of the sidewalk location he's still able to do that george marshall who's a peon handl if you don't mean where the median is next to the intersection you mean on the sidewalk correct he previously used the corner sidewalk and he continued can continue to do that george marshall testified that he used to stand  activity after the passage of this ordinance markel testified that he used to stand at rd in class and in order to present his petitions in political advertising that he would do during campaign times again not a hornets that is perhaps a bit under this ordinance the city of oklahoma city has provided the alternative channels they can still stand on medians that have speed limits of less than forty miles per hour because that danger is not going to create a death of a that danger is not present because like it is in medias res in the middle of a street with forty mph they can still stand on the corners of intersections they can still stand on the sidewalk they can still see and in other areas of the city that don't have mediums that have parks and sidewalks and parking lots this was found to be an acceptable alternative channel in the city of de los cased where they held the allowing of distribution from the side walk to a stop car did create a narrowly tailored position unlike in redondo beach or and they are oklahoma city's does not apply to the sidewalks unlike in cutting and reynolds this is not a city wide medium ban which was the problem in those cases so from the side of the street although it may be difficult or they could say that they did in so the it goes back to it doesn't have to be the most the best for the speech it has to allow alternative channels of communication which here we have done that and as the district court pointed out in a fundamentally facial challenge the court to rely on should not rely on plaintiff's individualized circumstances in evaluating whether there are adequate channels adequate alternative channels of communication and this is citing doe however the plaintiffs representative representatives of those are speaking to their specific locations their specific and since this is a facial ie applied challenge that would not be appropriate to look solely to their determination that it's harder for them in this situation they have alternate channels they have a case that they've used before and can continue to use even though the ordinance is in place the difference is they won't be in locations where if they are hit by a vehicle they're likely to die do you think that the adequacy of alternatives needs to be looked at either on a medium by media big media by media basis or at least by categories of medians or do you think you can look  we're talking about the alternative methods of expression in that case the alternative methods of expression were determined often to be easy just by moving down the median where it was a little bit broader in similar in this case they can stand in the same location they previously used to be able to on on those streets where the forty mph zone is is present they can stand on the side of the road or in the corners of the intersection and still reach the same high speed audience just in a safer location you're at you asked whether or not we need to look at these as a distinct difference in when applying for malice you need to look at those characteristics we believe are different in the early tailoring discussion like in the evans core they were the court the panel in the opinion stated that what we need to look at is is there risk we know from the case law and cutting and reynolds in mcallen and evans in price that a public safety risk is a valid risk we then need to look at what is the analysis of the of the area that you are attempting to regulate and we looked at that and we did the research in oklahoma city and determined that speed was the number one factor of determining whether or not pedestrians who are involved in auto vehicle auto pedestrian accidents are likely to die and so that's where we felt that it was appropriate speed dictated the volume of cars speed dictated the trajectory of the vehicle how far they would travel speed dictated the ability of a pedestrian as well as a passing driver who is that issue in our ordinance to be able to respond to a hazard speed indicated the severity of the injuries to the pedestrians here the city of cities expert testified that when you're taking active measures to stop the vehicle in response to that hazard that doesn't include where a vehicle in is engaged in a auto collision and is being trout is traveling across a location because of its energy or inertia and as the expert testified that is what we're trying to protect against the situation where vehicles are distracted because we did a search  one of our government interests we've said that the pedestrians that stand on the medians do creative destruction in fact plaintiffs all testified that that was their intention their intention is to stand at these high speed high volume intersections and distract the driver away from the act of driving and so that is a condition because at those high speeds the drivers can't rebut act as quickly it takes one hundred and fifty two feet at forty mph verses ninety nine feet at thirty and a fifty seven feet at twenty miles per hour additionally we had eric winger testify that these are streets have a heavy intent a moving traffic they're not made for pedestrians they're not created for  although appellant has argued that many of the pictures indicate these wide open grassy medians i would encourage you to look at the pictures because the pictures presented are are of mediums that don't fall under this ordinance the pictures with park benches in playgrounds those don't fall under this ordinance many of appellants are plaintiffs the pictures presented in the lower court are of the streets at twenty five miles per hour thirty so we don't believe that it's appropriate for the court for the appellants to present to this court that all of them are these why grass median and are terrible streets they're not their traffic control devices or that you know i was just trying to put the hands on the ordinance but d ordinance cover all medians or just certain dimensions you enter the ordinance covers any median that's in the middle of a street with a speed limit of forty miles per hour or more and even if it were a wide median enough little confused about this one street is was a jefferson or with a thing in lincoln st i don't quite understand what that with the status of that is in this case just explained is is there a dispute about that is there or you can see  one per graph how does it fit in with all these other mediums well your inner link isn't actually is actually a state highway it's not a rather i know but how are you are you asserting this ordinance on that or not i mean no we do not  i think the authority for them to take it is because there's a state law that says cities have the authority to operate and control the uses of streets roads and other public ways within the minister pelosi and so what they've said in their brief is that the state owns lincoln boulevard medians and the state maintains lincoln boulevard medians but they don't say that the state rather than the city has traffic jurisdiction over lincoln boulevard but putting those aside they're not apple turn of channels for the local political activists who need to reach the voters in the precincts wherever they vote across the sprawling metropolitan area and speaking of just the photos and what my sister on the other side of the table said that some of them are under forty mph they were when this case was squawk i don't think your honor we can judge that in the abstract without actually evidence that there are traffic safety problems with that class of medians just take that as a dancer that the answer is no and if i if i could conclude just one very quick thought you know life is full of risks and you know we need to balance the risk that's proven with the fundamental value fundamental value of free speech and we think we know which way the balance should just end up here