the ordinance does apply to both commercial speech and noncommercial speech but in this case the only speech involved is commercial speech and because the only elite the only place all this is a facial challenge it is both help you on the commercial speech aspects of the case but measure media was also some other statute that had applications both commercial and noncommercial and there  additional sections in the opinion after that for marshall speech section clearly struck clearly said that not commercial applications are unconstitutional and at the end of the opinion they said it was basically a constitutional because of the noncommercial applications so even even your best case metromedia i wanted that suggests that we should seriously curb this statute because it has both commercial and commercial and therefore it should be part that dealt with commercial speech only as well as a political to our case our case as a whole as only commercial speech but what do you what do you make of the court's holding at the end though that i'm with you on that but the different components but then it said it spatially and constitutional which i guess i took the court to mean an unconstitutional on its face therefore we want to apply t  obviously what we have here is a regulation that deals both with commercial speech and noncommercial speech but we do not get to market commercial part of the argument because the only type of speech involved in this case is for marshall speech i don't know why that is the meanwhile that's the whole point of facial the whole point of a facial judgement in the free speech arena is you take it down it's got an over prep component to it and i'm not even trying to stand the hardship i mean if you have the courage of your convictions about this commercial speech idea there is an option to say i am not the general assembly the general assembly of kentucky if it so desires can make that change to the billboard act but at this point time that changes not that is true that that argument was not made at the lower court level and based on the thomas case i can't make that argument but the argument has been raised  that's correct your honor but as i as i said i believe this is a commercial speech case that should be considered under commercial loan where you still have a shot you're not sure me or do you think those change the calculation or the answer to that that international door case did it did come down essentially within a week after what we found was our princip brief right appreciate that and i don't think the international al gore case actually changes the analysis in this case and let me explain why in the international ado speech challenge was made the difference in international speech the international court case from here that it is that case actually in ball commercial speech in commercials not commercial speech this case that sounds that's correct but this consumers the but i want my argument is is that this case it's in front of the court is a commercial speech only case and as an only a commercial speech case lesser  the court could potentially raise commercial and not commercial applications but i put the way i read the opinion was that it was a statute based opinion and if the statute had any  i guess it would be any non commercial applications that we still apply strict scrutiny to the statute and here i mean everybody agrees that it's the supreme court other portent treated different categories of speech differently even if you look at central hutson which is the commercial speech case the st part of that test is whether or not it's misleading whether or not it's illegal so even in the commercial speech round misleading commercial speech or illegal commercial speech is a separate category in industry differently because the courts treat  fighting words if they're counting let's just you know i'll out sept i haven't gone back to look at all except for the sake of argument that the only thing lines to and wanted the only thing you've regulated so far were billboards that have commercial speech i'm just going to accept that for the sake of argument but who's to say i mean if they were told you keep your you're ok if you somehow cut off noncommercial speech why couldn't they do and regulated may be just classic commercial speech but once they know how this works it wouldn't be very difficult to not commercial speech component to it i'm just not even sure what good distance for you once once you decide to regulate both of course someone's going to say oh i see i can do this is on sale at some noncommercial speech i take it that's what you're saying you're conceding it's lines then it said at the end by the way you know register to vote i kind of like the whole idea of the sign having that for what it's worth makes me smile you would say that's ok i would say that that is a different case oh well thank you action was a commercial signing and that just seems really odd to me you know not that i can appreciate that that is the fact is that this is a commercial speech only sign and because it's a can only commercial speech lesser protection is afforded it in the regs are the kentucky regulations should be in allies under intermediate scrutiny  and if you look at intermediate scrutiny this particular regulation of commercial speech is satisfied now as to that my time is going to be up here obviously i can plurality decision of four justices well timothy concluded that on its face and in all of its applications the san diego ordinance was unconstitutional the two concurring justices d would have gone even more broadly and and i'm not certain it states because according to the end said that portion to be severed and so the judgment of the court which includes the four justice plurality was that it's unconstitutional on its face but that the state courts might be able to sever commercial speech applications from the noncommercial speech applications and apply to commercial speech applications so i do think that the analysis on the commercial speech component of the st amendment was necessary to that judgment the severability judgment and i understand your point your honor although it was a plurality and and the holding required the two concurrent justices but but i see your point in this case so that if it's commercial speech then i remember why isn't this case the same case because you can cite off site the on site off site  distinction was clear the addressed in that opinion there is an entire paragraph on why the spite that distinction it still satisfied central huston's and immediate scrutiny it seems like that same exact analysis would apply here setting aside over breath or noncommercial if you're only looking at the commercial speech component of this case measure media seems controlling well i don't miss i don't agree with that your honor i think we think judge walker was correct that even under intermediate scrutiny and this record the statute and regulations do not satisfy even the central high wasn't it doesn't see between the cases that there was and there is no evidence introduc implicated by our sign that it doesn't distract motorists it doesn't interfere with the statics it doesn't do any of the things that the statute is supposed to further and we also asked them to produce any documents to compare metromedia my one paragraph to this case and doesn't metromedia suggest it's not an evidence question or is there a way in which you get out from under that here well i think that you've got to go to since in the both no no what happened was it was a cincinnati ordinance that prohibited only commercial news racks but woud noncommercial news reps and so it was tested soley on general in the supreme court held that it satisfy the rd and th prongs of the central hudson test because they distinguished metromedia and of course that's a much later decision but isn't it significant that they distinguished metromedia on the grounds that there was an off site on site distinction and metromedia and that the distinction and city of cincinnati was noncommercial versus commercial i mean that suggests that this case falls within the footnote base court deck to the notion that central hudson intermediate scrutiny rather than strong scrutiny would apply in testing the constitutionality of the troy ordinance you and the district court said how wherever the speech at issue was only commercial speech that's what the district courts and by central hud's and affirmed the constitutionality  because the ordinance wasn't limited commercial speech it was a content based ordinance that regulated both commercial speech and not commercial speech and in the ass fence this court think that's the whole point that's that's why this case is the same that it was the exemptions from the permit requirement for certain speech that based regulation and then this is a content best based resin regulation doesn't need to satisfy central hudson intermediate scrutiny or does it need to satisfy read strict scrutiny and the six circuit your court held that because the ordinance regulated both commercial and  the speech had to be tested under strict scrutiny that's exactly what do you think situation we have here what's your take on the view that we ought to consider this lately brought argument about severability  as we have pointed out in our brief week cited a whole laundry list of cases that says that amicus cannot raise an issue that the parties have not raised not now and that that of course is easy but  would would separate in the most recent cases the united states supreme court decision and in u s versus sending in smith where the court you may recall in their case there was a st amendment as applied challenge to a federal criminal statute but not a facial challenge in the th circuit asked amicus to to come in an argument over brett challenge and struck the statute down  overbroad the government appeal so i assert the supreme court reversed and said you can't raise these issues the parties have to control what the arguments are and the party in that case never in the judgment is that it was unconstitutional both on its face and has applied and and the court said the court permanently enjoins kentucky from in forcing the kentucky billboard d act against lion's den it did go on to say that it's unconstitutional on its face and has applied so i would leave it to another party if they try to enforce it against someone else as to whether that injunction would  recalling that facial of the kind of the over breath in the st amendment doctrine doesn't normally apply to commercial speech cases i rate him actually if you had an exclusively let's just say this sign was just just commercial speech am i remembering correctly that facial the over beth doctrine doesn't apply in that setting or my wrong about that yes if it were no you're right about that if it were solely commercial speech but the united states supreme court in board of trustees of the state of the university of new york versus fox hell old a commercial speaker parenting to challenge on st amendment over birth  grounds that applies to both commercial and not speech a commercial speaker does not have standing to challenge an overbroad grounds a statute that only applies to commercial speech in other words a commercial speaker can say well some of the commercial speech that is regulated shouldn't be regulated but a commercial speaker does have standing to say in that case even if you could regulate commercial speech if you also regulate noncommercial speech in a substantial way then it's unconstitutionally overbroad on its face and that clearly is the situation here this statute and melees you have jimmy jam any evidence that they can force the statute in noncommercial settings well he have the testimony from the public officials that that it applies equally yeah noncommercial masking enforcement i mean we can all read we realize it applies bites times but i'm just curious if there's any evidence that they've applied to noncommercial orts there really is little evidence as to there's only a few instances in the record about there the state but they made it clear if the lion's den changed its sign to a political sign it's still illegal if it changed its sign to a religious message it's still illegal if they change their sign to  an issue oriented message it's still illegal and they would be done amending taken down and so there's a vast amount of constitutionally protected non commercial speech that is covered by this statute and regulation which clearly makes it over brought in addition to the fact that it obviously under thomas vs bright of this court's decision obviously fails d to satisfy  substantial progress can't can you determine six substantial progress just by looking at the face of the statute and saying it obviously applies to d noncommercial speech or do you actually have to well you know that that's one way that that's one way that that you can do it because you can determine from the face of the statute how vastly it does that's what happened in us versus stevens the ok i was going to ask about a case is there a case that says just looking at the plain face of a statute you can determine if it's general which did that the video game out of california case also did that but but we also have not just the state testimony of the public officials who said that's exactly how it works and that's exactly how they would in force so we not only have the the language of the statute in the regulation but we have the under qualified undiscussed you did so many of the two p i was having trouble getting it on you did there it appears the course been quite a bit of time here dealing with the over breath issue obviously the other breath issue was not addressed a lower court the lower court did not make a decision and over breath analysis as the court knows over breath is a strong medicine that's supposed to be employed with hesitation and as a last resort the burden is on the party seeking no breath to demonstrate that there was that the the parties that are not before the court are being frozen out from speaking i don't think there's the evidence that's been shown here to the the evidence is supposed to be supplied by the party making that challenge and i don't believe there's sufficient instances here shoe is is in issue for the cabinet here but i don't believe it carries the day on on over breath i believe there has to be substantial issues noncommercial speech is just part of what the cabinet regulates as we've shown here in this case the commercial spar speech part is not a broad i see that my time's up all right let's not thanks to both of you