to the city of portland median ordinance for all intents and purposes this court has already determined what whether that ordinance is constitutional or not with two differen ultimately are not dispositive this case is that there are the most a case those differences briefly are that the fair case was had a different procedure in posture than this one in that it was it came to the school or at the home there injunction stage and this has come to this court after a final trial on the merits and secondly there is this question about campaign signs and what i submit is that ultimately that issue is entirely a red herring and the content neutrality of this ordinance at the governmental interest that is the reason for the legislation and in order to sort of start that analysis this court in error explained that you start with content neutrality so let's start there nothing on the face of the ordinance mention speech at all the ordinance says in summary but pretty close nobody may stand sit or staying in the median because i know the record shows that there was concern about panhandling that was one and there are some protesters was there anything else something like in the hicks case they talk about frisbee playing and soccer playing on the different you know i assume that wasn't calling out in the median strips when they passed the ordinance i don't think frisbee buying was and so was there any non speech activity occurring on the median strips that cause the city to respond to it and the nuns i think  lots of non speech activity which obviously is permissible and you're worried about invalidating the statute but here i guess what is bothering me is i don't see what non speech activity we would be cutting off all the activity seems that that was motivating the concern for the stats you seem to have been speech or later because that's the only people who would bother to go in front of a median strip to hang out they want to convey their message to the cars that are passing i think that's right doesn't that make this very different know that's very helpful i would think to the plaintiffs right because that shows that we've got a lot of speech related activity that might be being cut off it might be that some of it it's permissible to cut off but when you just compare how much speech activity is substantially affected lots well the issue of the safety concern that the city was getting out was that medians are inherently dangerous so it doesn't matter it didn't matter to the city whether you were on a median one park that is alleged to have that does have a bench but that is sort of the testimony at the trial was that that meeting in in terms of enforcement is accepted because it is essentially dedicated as a public space with a bench  that is one of the more dangerous and unions in the city because it's in the twenty four fast moving lines of traffic the public services department has gone through a number of different efforts over the years to try and keep people from using that medium to cross those lanes of traffic and so the evidence that was before the council and that was in front of the judge demonstrates that the city here made a determination that this was a public safety hazard that medians are inherently dangerous and it wants to keep people out of foam and so when doing the over breath analysis you look at the government interest and whether you know there is that tight nexus here and if that if the government interest is legitimate which i submit the case law supports that terminations and sending in the middle of the road is dangerous if we want to that's the question that troubles me if yours in the media not hit the road with a sign saying well he or i don't like to whether someone is or is not in danger i think it says that they you're in violation and subject to penalty if you refuse to move after being asked but i don't think that that was dispositive of the question of  and to get to judge sauls question yes movies are are dangerous and we have evidence in the record that demonstrates that scientists have been frequently damaged because cars are driving over them people have been injured and second guess the legislative decision of the city council as to what is sufficient public safety concern to act and under the process and protecting pedestrians protecting people who are driving cars making sure that the roads are seeing is a significant we have the necessary nexus because again if the concern is keeping people out of the middle of the roads the only way to do that is to keep people out of middle of the roads there is no less restrictive means to do that and to the extent that there is the city has done it there is a built in exception for using medians for their purpose which is as traffic calming devices so that people can stand momentarily while crossing lines of traffic for their safety and wait and get across that their purpose  that do we take the case on the assumption that you allow people to put signs in the media know that you don't well the city doesn't that we allow people to put signs in the median you do love people to put such an even if they're not crossing the way yes if they are momentary the testimony at the trial was the police would not first on or incident address that so the testimony at trial was as far as unfortunately police do not believe that someone who is momentarily in a median to install a sign are in the median for long enough to be in violation of the ordinance because they're not standing sitting or standing if they're not using the median to cross right ok and so just in wide why that is what trying to figure out it's what i would submit is that it's a question of degree the longer you expose yourself to harm the risk of harm actually occurring increases exponentially and so there has to be if medians are to serve their purpose there has to be some ability to sort of touch down in them for a small period of time but the risk that is associated with that small period of time is far less than a period of time when someone standing there for hours holding a sign or not picnicking whatever it might be and you're inviting more harm from cars who will become distracted and as this court noted in fair the purpose of being in and even most times is to distract drivers is to get their attention and that gets right at the heart of the city safety concern they bring in as applied challenge also what are we supposed to do with with respect on the pitch you don't really address the as applied challenge that they raise in the complaint sure it hasn't really been addressed much at all and this litigation i think to the extent that it makes any sense at all to look at it given that it wasn't discussed by the district court my understanding of the case law is that where you have plaintiffs who are essentially fall within the of the conduct that is sort of at the heart of the facial challenge you know then they don't get to the as a fight so in other words these folks are not unique for the certain sense of that they're facing are not unique from the circumstances that are brought to light in the facial challenge so to the extent that this is a content neutral constitutionally permissible ordinance if it isn't being applied in a manner that is violating their benefits we have to accept your contention that no matter how big the medium is and no matter how seemingly fit it would be for protesting based on what they presented we have do treat bad in your view as not there is no problem with imposing the ba even in those sites well that's our position is dangerous you know that council so there's a petition in front of the supreme court and they are how long has this injunction been in place  roughly well i think i had trial and november i believe and i think the part number of two thousand and thirteen and i believe that the parties agreed not to enforce that so it hasn't it hasn't been in effect for very long at  all and and it's hasn't been obviously since the district court before the ordinance was enacted there wasn't enforcement either right it was nothing to enforce it was trying to think whether it makes sense for this to be for us to hold this unless and until we get some guidance from the supreme court and i think they're going to consider that too should relatively soon but if they take it does the city have a position on that well i mean i certainly in traditional public for such as media is very limited and its ability to restrict speech and content based way is almost nonexistent therefore you can understand why the city is now trying to run so hard away from the position that in the construction of the ordinance that it's witnesses and it's trial counsel consistently urged on judge single which is that there is an exemption in the law and that exemption applies only to political campaign signs judge will did not commit clear its time arguing about what would that be because the normal case is that the i think the normal case is that the law is discriminating against content as to all applications this is just one little thing about signs we could say maybe that was impermissible but with respect to all the other activity that you are including there is absolutely nothing in the record or judge the judge who owns this isn't to suggest any content based discrimination would occur well i think if evidence that the protesters that you talk about of the panhandlers that there will be any content discrimination contemplate is not even allowed under the statute the most content basis commission with respect to use of signs so why would you invalidate the entire law on the involve the activities of the plaintiffs themselves and so if the government in this case is saying we will allow political campaign signs but we will not allow people to plant signs that deal with for example the war in afghanistan an example the judge who will put to one of the city's witnesses and at the city's witness said yes i think the exemption only applies to campaign signs not that you have a problem with that and that is a problem that can result in the law being struck down on its face can be or must  the law should probably be sent be sent back down to the city council to allow the city council to decide whether they want to have a state and ordinance which doesn't allow any signs which is which the city sometimes argues was it was the intent or as the city is trying to decide whether the force of county ordinance is content based or not it does not decide that question on the face of the force of county or ins and in fact the u s supreme court distinguishes its earlier decision in cox versus new  hampshire which forced county in the u s supreme court senior agree involve very similar language in the face of the ordinance on the basis that force and county had adopted a very different construction of the law a construction that was content based and it was based on the construction of the law not the face of the law itself that the u s supreme court found force of county ordinance to be content based and went on to strike it down one space or feel or satisfy strict scrutiny on the theory question obviously there before deciding to grant but we should know on monday there are many differences between this case in the their case first and foremost there did not involve a authoritative construction of the law which put in place content base air does not apply in addition as my sister noted there was not a sign based on a trial record and here we do have a trial record concerning the safety risks of being  you know we have testimony which we did not have when the thera case went up on the p r i from director busy he is the city's witness who is the head of the department of public service responsible for maintaining his he was put on by the city to testify refuges become any more dangerous the longer one stands there and his answer was well you know barring a blizzard ruin or visibility conditions declining for example because of fog you know they don't they don't become any more dangerous and so you know based on based on his testimony and really based on the absence of any record of accidents over the last five years we're now the more than a year that the ordinance has been show that there are there are not alternate ordinances which would allow it to address that kind of activity without also sweeping in for example speech by protesters or by issue advocates and in fact if you look at the case law many cases involve ordinances which deal only with either solicitation that involves stopping in the travel lane or sometimes solicitation on the median itself but you can find few examples of governments which have said we are simply eliminating all speech of all kinds on the  median we can see that if a government and we would suggest specially for look at mcallen in the analytical framework in mcallen that if the government wants to address risks of people stepping out into the traveling to collect a donation then it can enforce existing laws such as the obstruction of traffic law we asked the police chief if the government actually made a concerted effort to enforce those generic laws in the handful of medians in the city were where there's a problem with with pan over the government perceives a problem with panhandling and the police chief admitted that they did not make a concerted effort to enforce generic laws even though in the case of problematic panhandling on sidewalks the government did make such a targeted effort to enforce existing  only some so what i'm looking for is a content neutral case in which the court applied not only brett and invalidated it when it was clear there were some constitutional applications your honor i believe it's sixth circuit explained it this way that a law that is not narrowly tailored is is is by its very nature unconstitutional in all of its applications because any one to whom that laws applied could challenge it successfully on the basis that it's not are telling require it at its heart is an effort to get governments to think seriously and this is really what you see in mcallen it's an effort to get governments to think seriously before they enact laws burdening speech because of the real chilling effect that these laws have and so you want the for example one of the problems that chief sauce chuck highlighted in his presentation to the city council was the risk of drunk individuals hauling off the medians when traffic massachusetts has a law allowing police to move on people often medians new they wanted to engage in and then the kinds of locations that they say they want to be in hell is that in the record is pretty clear as we put on our two political protesters they both testified as to the types of signs they hold where they example stepping out into the traveling when they're going to cars might be moving on but as routine is usually remaining on the median where she's close to the driver and then reaching out and usually she can conduct her transaction without having to stop in the roadway and on those occasions where it was necessary for her to stop in the roadway she would wait for the light to change and then you know walking across a lock and receive the donation in that manner so you know if if plants ruin it it's as applied relief i suppose the court could say we think that that kind of conduct cannot be forbidden by the government consistent with the first one but again we suggest that given the risk and as it is as in citizens united the court should say given the risk of the chilling effect and self censorship we're going to track this down on its face particularly because i think if the court it and i don't think even have to get there at the end of the day because you can rest on the content based rationale if the court doesn't reach this issue of marriage challenge intermediate scrutiny you can find parks of course she was a different one not suggesting that you have to get an interview but i am suggesting that there needs to be some deference and looking to the record to see whether there is evidence to support the council's decision is appropriate and necessary and that exists here with respect to the campaign signs again that is a red herring this this court and mcguire expressly held that just because you have to look at a sign or listen to something that is sent to understand what it's being said does not render it content neutral if that were the case solicitation ordinances would be content based that is a kind of speech a campaign sign is a kind of speech we're not saying only republicans can put signs in the media and for a short time not democrats or vice versa there is no disagreement with the message is the kind of speech and so it's no different than an anticipation ordinance which has been held by this court and by the supreme court and calling a similar ordinance to be content neutral and there was a suggestion that there should be a read and to the council to rewrite the ordinance in some fashion to accept campaign signs and putting aside this red herring business the ordinance on space doesn't talk about campaign signs so there's no there's no utility and remanding it to reenact something that doesn't doesn't need to be fixed in the instance and then getting to the force of the case that case all of the playoffs rely on it and that the district court as well that case does not stand for the proposition that you can start with officially constitutionally permissible ordinance that makes absolutely no mention of speech and then reference a so called official interpretation to invalidate it but you can't have it both ways you can offer up the authoritative construction to narrow the scope of the statute by construction ok we look at it to save it from the over breath objection well they're just saying it is saving it now it may be that you're saying that the accurate understanding of the authoritative construction is that it just exam signs without regard to content but if we're going to adopt the authority of construction to narrow the scope of the statute we have to look and see what is that authoritative construction if we conclude it happens to be content based then you stuck with it well i would just submit that the purposes and the analyses are distinct and there should be some respect given to the distinctions to offer it to explain why this is an wrapping in conduct that is necessary to meet the government interest as distinct from trying to understand whether it is the conti's content these destruction that's aimed at discriminating against her i think on message your point is taken i said that you can but i don't think you need to in this case