it please the court my name is david mark a zero present the appellant's john mclaughlin and jeremy peters and i would like to reserve two minutes for rebuttal the issue that will be decided by this court is whether a municipality can issue a permit to a private organization that creates for that organization a safe space in the courthouse square where no one who offers a message contrary to their message is allowed and i argue that the first amendment does not permit that that's exactly what happened in this case mr mcglone and mr peters were sharing their religious message in an area that was permit it but not ticketed it was right outside  the festival area apparently this is an area that's set up for people to queue up and buy tickets wait for other people to go into the festival they were approached and told that they had to leave and go across the street the only reason that they were given the only reason that they were ever given for why they had to leave was that the area was permitted they were told this before the festival even started by metro nashville police lieutenant now captain david corpsman they were told that by officer crowe the one who actually moved them at the time in the we're told that by metro nashville police sergeant petty after they had moved could they  have bought tickets to go into the park area well again they they were presumably the they could but they were they contacted metro p d lieutenant korman before the festival started and told them that they wanted to set up and preach and they were told no you can't be you have to go across the street so i presumably if they can even stand outside a part that's not ticketed police the metro p d would not have been happy with them buying a ticket and actually going inside the us did they indicate that they wanted to use more and i don't think that they told  in their e mail that they were planning to use bullhorns i think they told them that they were planning to preach would that make a difference if either if they had said they wanted to use bullhorns or if in the past  know that it would have made a difference that they did use bullhorns and there's no evidence in this case that there was any interference with the message of the festival and i would point out that the district court itself noted at at the hearing on the record this is page seven ninety nine in the record on appeal there's no evidence that there was any interference with the actual message of the festival so clearly it didn't make a difference that they were using in the in the district court's own view i argue that this is a viewpoint specific case they were moved because their particular viewpoint interfered with the safe space that was created for nashville price a space is not my term that's metro's term metro contends that this is a time place and manner restriction subject intermediate scrutiny  restriction here doesn't satisfy intermediate or strict scrutiny so the police here the government seems to have been under a mistaken impression but an impression on the left that once you had a permit that converted public property into private property so they didn't understand the the public form aspect of the case they didn't understand the amendment but there if they are under a mistaken impression that once you have a permit the whole permit area is like your backyard and you can obviously eject people from your backyard if there you know saying permit makes something private property and can the government be mistaken and and use that as a justification well metro are sergeant petty is the one who said the permit creates basically private property metro says well he was he was mistaken as to that there's no indication that lieutenant corpsman who actually told them they had to leave was under the impression that it created private property  now i think it's it's it's telling that no one was asked to leave except for these individuals well as anyone else actually speaking though other than having a private conversation or the i mean i guess delivering nobody else was there with the purpose of delivering a message that right no one else was i can you know well i know that metro concedes that at the hearing i don't know if i can give you a cite specifically to the record the show you're saying that metro conceded that there were sponsored they were sponsored tents and there is a video that's part of the record as well would you have had a spot you know competing tend well i would say no because it would have violated the safe space that supposedly was created by this this permit they were they were told you with you would you have to go across the street you with your contrary message have to go across the street so long as your message is consistent you can set up a tent that's fine everyone record well they were told they couldn't be there at all this again the metro concedes this is a traditional public forum it's not ticketed it's open to the public there in this public area and they were said they were told before they even got there before the festival even started you can't be anywhere on that side of the street because it's permit you have to go across the street so if they weren't even allowed to stand there i don't know how they would have been allowed to put up a tent and again that they didn't try to put up a tent they just wanted to stand there in and share their message so it's a small area right at the entrance to the to the festival and that's where they wanted to stand right well the district court actually said it's a relatively large area in fact he said there's plenty of room for them to set up without blocking anyone he said that on the record at the hearing and sergeant petty also testified there was plenty of room for people to get around without going into the street so it wasn't there was not congestion and again there's there's there's simply no evidence that they were blocking anyone the district court stated himself they're not there's plenty of room for them not to block anyone and notably in the order granting summary judgment there's no finding of fact by the by the court that there was any blocking of ingress and egress that there was any interference with the message that there was any threat thirteen that i have is that you keep describing things but with the omission of the bull of the extreme as the message as opposed to doing what other people were doing i you point out tens if there had been a request by your side to have tens or two we flip or to do something like that and that had been rejected that would be a different case but here your clients were using bullhorns very loudly and there wasn't anybody else using bullhorns so far as i could tell you in the video no no one else was using bullhorns  but i think what's important is again there's no and the district court noted this there's no there was no use the word suggestion there's no not even a suggestion that they were in any way interfering with the message of the festival again there outside this is the festivals going on behind the fenced in area and the fact that there were there is no for finding of that in the district court order granting summary judgment i think is also and that's consistent with what the district court stated at the hearing there is no evidence that they were interfering with the message of the festival the only response that metro gave at the hearing when the judge made those statements was well they interfered in the general sense with the safe space that was created by by the permit meaning they interfered by offering a contrary message and again that's a viewpoint that's a specific viewpoint that that's the most egregious form of content specific restriction but of course no we don't know  because no one else they're trying to broadcast a particular message to me might be a much easier case for you if someone had shown up trying to broadcast a message in favor well and judge larson and judge moore i think we're in which you're you're what you're suggesting is will wasn't there interference because they were using bullhorns they were being loud again this is a summary judgment case where's the where where's the  evidence of that where's the evidence that even using bullhorns they were interfering with the message of the festival i don't think this cordon stg said government interest can't be conjectural you can't just state this is something that's important in the abstract it has to be an actual real interest and if there's no evidence that even using bullhorns that they were somehow interfering with the message of the festival then i don't know how you can you can find that it know so if we leave the bullhorns out of it i mean i think that might be right that there's this case it's distinguishable from the third circuit case in which the protesters were drowning out the the entertainment acts they were inside the festival they were up close to the stage you couldn't hear the music or the speakers that doesn't seem to be the case here but still the concern is whether or not these people were moved from the sidewalk because they're speaking a message they're attracting the crowd the crowd is causing people not to be able to get by creating a hazard blocking entrance all of that is content neutral right it doesn't matter who is it if i had been standing there saying you know if i were a celebrity and i were standing there saying you know i'm promoting my new movie about whatever and i was attracting a crowd maybe i would have been moved off the street too because i was so interesting well and again even if the restriction is contineu traill there's no significant government interest because again there's there's simply no evidence as the district court itself stated there's no evidence that they were blocking ingress and egress threatening public safety that they were in or in any way interfering with the message of the fast why wouldn't it if we assume it's content neutral why wouldn't it be a time place and manner restriction and all that your side was asked to do was to move across the street and then you then you continued with your message with bullhorns with everything because there's no most significant government interest that was being infringed there was no interference there they were not interfering with anyone and in saying this court addressed the issue of whether being able to share your message in another way is that there would be the adequacy of alternative channels prong i assume peter's were set up next to a ramp right at the center they were allowed to preach way over on the other side of the far end across the street on their estimation here they were able to speak to everyone going up the ramp in the video show there they were on the other side of the railing there was no impediment in i think saying is on point there clearly that that was not an adequate alternative channel of communication tha counsel thank you please the court my name is kelly oliver and i represent the actually in this case the metropolitan government of national in davidson county the district court correctly held that moving the apple e's a few feet across the street and then allowing them to preach their message including through the use of bull horns and amplification equipment for four to five hours according to the employee's own testimony in deposition was a reasonable time place and manner restriction on their speech and we would ask this court to affirm that decision about to start with judge larson's point about the fact that what the employees were told was you have to move because this is a permanent space that is absolutely an overstatement of the law under this case this court's decision in parks a permit doesn't turn a public forum into a private form but in this case that oversight of the law in its application actually does what the first amendment isn't is aimed to do which is to balance the interests of two groups with expressive messages within sort of the unique category of permuting scheme cases the supreme court has recognized for years that permeating schemes are one content neutral way of having order in public forms when you have discordant views that groups on opposite sides want to express and a spot in their briefing reliance on say and parks and those cases from this court  make exclusive use of the courthouse square to get its message out in an expressive way and did not have to include someone with a discordant message and in that case it was a bush quayle rally there was a young lady who wanted to come wearing a clinton button and discoursed said she can be excluded because the message the expressive message of this committee in this relatively small public area which is similar to the relatively small area in the present case their message is to send out into the world confidence through the bush quayle ticket let the world know that quails going to win this election and her button being there is discordant or that they can exclude her here position that the preachers could be excluded from buying tickets and going into the public or no your honor not if they simply walked in under the facts of this case perhaps because they were actually wearing signs that said that this  the gays were going to hell that sought him out should repent and the purpose of this festival is acceptance of the gay community celebration of the gay community they were wearing it too sure their message could be excluded there was actually interference not in the sense of the startle case where somebody disrupted the acts on stage but i would submit that this entire permitted area is to celebrate the gay community to celebrate acceptance of the gay community and the apple these in this case came with bullhorns and microphones and signs and started preaching immediately that acceptance of the gay community was going to lead you straight to hell it was an area outside of the school itself like there's a gate there's you have to get inside that this is a public sidewalk i mean it's a public forum there's no question about that right sorry your honor no question that it is a public forum it is part of the permit it's space however in the purpose it's national tragedy limit as much as that can blocking off sidewalks and roads because of just the congestion that causes downtown and so in order to provide for about a queuing area there is this opening in the barricades and that was sort of just a geographical decision so the people aren't lining up out in the streets and i would submit that that's not the kind of distinction that the sas this case because while in first amendment cases you're balancing things all the time you want to have as the gay pride people have the right to use that sidewalk for their purposes during this is that would you yes your honor because in the permit application you have to actually ask specific permission during that process for use of socks and roads we had to close a lane and you have to justify why you or your footprint is so big that you need a language and so they asked for that area for queuing up the pride president stayed in his deposition that was the purpose of that chewing area and that it was to you know avoid having people queuing out in the street and then closing another line of traffic i believe the employees admitted in their deposition that they knew that that's what that area was to be used for  believe your honor that is closer case i believe those leaflets said similar to burn was similar to their message whatever if it worked specifically an undermining competing message of the festival if they wanted to spend a minute are you saying so if i'm a if i'm a pistol pillion minister and i want to stand there and i want to say god loves all people we believe in gay marriage come to my church and get married that person will be allowed to stay and preach his vision of the gospel and a preacher who comes in and says homosexuality is a sin they're not allowed so that that's the want to be clear and i think your honor that but you would allow the episcopalian minister in my hypothetical to stand right there hand out preachers have a bullhorn come to our church get married will perform your wedding tomorrow but not the people with the message contrary to that a different vision of christianity is not so because i'm thinking that like not just content discriminatory but viewpoint discriminatory and that seems tough and i would say your honor that again it's the context of the permit and in that situation if there were bullhorns and if people were gathering around and people couldn't get in and they they want if someone is there with leaflets that say love jesus i think they should be allowed to stay there i think when you're talking about bullhorns and gathering of people and people not being able to line up and i would submit that in the video in this case while the district judge did say it seemed like people could get around i mean they could get around but there was a big crowd and you had to do some maneuvering to get around where is the purpose the key really to your position is the use of the bull horns and carving a crowd to form in that would apply no matter what the message of the bull to exclusive control of an area to express their message and this certainly was a discordant view to that message and undermined the entire expressive message of the festival which is that this traditionally marginalized group of society could come and celebrate being who who they are is the bull horns that are the problem so i stood out there and i said sign up for my low interest rate credit card and i'll give you a free t shirt and everybody's like great i want to preety shirt at the credit card i've got my bullhorn and is that and it's loud and i'm tracting a crowd and you maybe you can hear back in the best of all though there's no indication here that this message with blocking out speakers inside can i stand there and advertise my credit card come everybody is welcome i welcome all people to apply for my credit card and i'll give you a t shirt i don't think once you start attracting a problem it's not the bullhorn if i do it out there with my bullhorn and i say it's raining today it's raining today it's raining today the sun is shining everybody would just ignore me and think i was crazy person to walk by so it's not the bullhorn it's the crowd for me and that both the time place and manner or are you on yet no i just i'm trying to get a handle on it it's three things first it's that national pride had a permit for exclusive use of this area to promote their message and under sr they could exclude discordant speakers it's also on the realities of this case if you just sort of want to get away from the academic lol because first amendment cases have to be facts pacific and a lot of instances you also not only have a message that undercuts pride expressive message you have it through amplification equipment and you have it through incendiary language that is broadcast very loudly in a group that is quite frankly if you watch the video designed to draw an incendiary crowd you have it happening at an area that has been set up part of the permitted festival to allow people to not have to line up in the street and that's where the and if you watch the video minute five i mean the people that engage with the certainly not but this notion that people were just standing around doing nothing and that there's no indication that they were actually people participating or wanting to participate in the festival i think is belied by the video the people that the person meant to allow people to convince other people that their message is a good message i think that the evil that the first amendment is aimed at avoiding is the preclusion of someone's message and that didn't happen here those the street preachers were moved first across the street from where they had begun and then ended up if you watch the video of the hour twenty four mark and onward they're at the very edge of the other side of the festival on the third and union side and they are communicating to their exact intended audience it's festival goers who come out here using a cross walk to go back and forth they engage them they talk to them their complaint in this case is or in the briefs is that they didn't get to reach their intended audience and that's why they are upset with having been moved ten feet away in some cases but if you watch the video they reach their intended audience and at the end of the day i don't think that the first amendment gives you the right to stand exactly where you want to stand so long as you have other ample alternative avenues of communication and they certainly did in this case and found your honors i was just submit that even if the moving of the athlete across the street was inappropriate there's no evidence in the record that it was the result of  policy or practice for purposes of section that in eighty three liability apple is released solely on an e mail from then lieutenant now captain david corpsman telling them they need to be across the street under this court's precedent state law tells you  policymaker for not hundred eighty three and a police lieutenant is certainly not that there's no evidence in the record that the chief of police or the mayor or any policymaker had any knowledge had given any directives or even had any knowledge  this instance at the two thousand and fifteen pride festival and it's the record is replete with the at least on testimony that their relationship with the metro nashville police department is overall a positive one that on multiple occasions their first amendment rights have been protected by the metro nashville police department and i would submit that even if the this particular festival wasn't handled appropriately an e mail from a lieutenant is certainly not enough to hold the city a lot of the authority to  tell people the preachers what where they could or could not i think you had the authority to say his interpretation of the permit but i still don't think that he if his interpretation is wrong i don't think that that equates to a thank you first of all this case is not to strong so strong it was not a time place and manner case so this drug is a rare case where they actually address viewpoint and the point of sistrunk is you cannot force someone else to express your viewpoint this is a person who wanted to participate in this in that case cites hurly and other similar of some supreme court case they wanted to participate in the speech of the people conducting the rally that's not the case here there's no question cannot be on that side of the street because it's permitted there is they were not told shut off your bull horns or reduce your volume there was no attempt ever to to try to somehow narrowly tailor move over here because you're blocking nothing they just they were told consistent with what they were told before they got there you have to go across the street and as to the question of whether there's a state policy in this case is all about the permit they keep talking about the permit the permit was issued by metro nashville  the guidance that in the owner of comprehensive lloyd poteat said he receives guidance from metro nashville police department as to what's allowed at the festival that guidance was given by lieutenant corpsman who oversees special events for the for the police department you have the authority to set policy he didn't set the policy here by by by giving that directive he was on the committee that approved the permit he is listed as a contact person for any questions about the security action plan which was also approved by metro this is our metro metro can't can't tell comprehensive these people have to be across the street and then when comprehensive moves them across the street it will that was an us that was comprehensive this is all about and i would direct you to this court's decision in parks where this court said the city instituting a permit ing scheme that ostensibly gave the permit holder authority to move people was in fact the action of the city they also had a letter in that case from the city attorney whether a city attorney can enact policies i would certainly question