case involves a constitutional challenge to the city of redmond's portable sign ordinance the city's ordinance establishes a general prohibition on portable signage within the city and portable signs just defined to include non time place and manner of restrictive framework and these include real estate signs political signage some specified types of banner displays construction signs and a few other types the facts of this for commercial speech and the central hudson analysis that applies under it the central question involves four criteria that must be satisfied for commercial speech restrictions to be valid the first to move elements of that start undisputed in th city does not challenge the fact that mr balance advertising sign involves lawful activity and it's not misleading and the pelleas in this matter do not contest the city's determination that the traffic safety and community its tentacles underlying the city signing code are in fact substantial government interest within the meaning of the central hudson test second prong where the parties strongly disagree is on the third and fourth elements not satisfied we believe that the district court committed several errors of law in this case and the first and most significant error what is the court's disregard of what we consider to be the controlling president or this dispute and that is the u s supreme court's metromedia versus san diego decision which continues to be in the korean minutes case and the control in question and governing the law of outdoor advertising can you help me understand  metromedia case as i read that opinion there are four justices in the plurality and then depending upon which of the remaining pages of the opinion you read there may be three determined that the commercials as applied to commercial speech the san diego ordinance challenge there was valid and that includes a justice just white martial stewart and out that that were part of the  and it also includes justice rehnquist and berger and justice stevens two concurrent parts one through four of the metromedia a plurality decisions so combined in our view seven justices believe that the restriction at issue true then why wouldn't the supreme court in the discovery network nusrat day that the new tracks were one of the exceptions that would be recognized under metromedia i think i have in the discovery networks face deliberately went out of its way to narrow its folding and say specifically that are holding its narrow the court also went out of its way to reconcile or at least not to overrule the metromedia decision the discovery network support acknowledge notes from media and and even more importantly specifically acknowledged the presence of the exemptions to the standing eagle ordinance that was involved in that for media but did not overrule  and i think that that go ahead i think that that's very strong evidence and that's in footnote twenty two of the discovery network's decision that the court as a matter of law continues to view those exemptions as constitutionally to minimize for purposes of  but you can have a bunch of real estate times and both are commercial isn't that more like discovery network where they said you're only getting rid of sixty two news racks with the commercial speech but you're leaving all these other news racks that the supreme court found under the third prong that there was no will adequate regatta action and that some total of the offending news racks that there were some fifteen hundred or two thousand of them and only sixty two were discovery network court's conclusion as was the fact that we weren't in cincinnati unlike the redmond ordinance had originally been adopted for reasons completely unrelated to the newsroom concern there we weren't in  cincinnati it was actually in the courts words and outdated regular regulation that it originally sought to regulate levant leafletting a pamphlet so i think that it's also distinguishable on that case and to address  a question concerning the matter it matters out at the station in the two thousand and five the session of the washington supreme court i think there are several factors that that's take that case out of the realm of precedent for the the current appeal the first and most and four justices in the dissent strongly considered the ordinance challenge there to satisfy central hudson and they relied strongly on metromedia for that decision and that's plain justice justice alexander didn't reach the frankly without a true majority in that case on the constitutional issue it really does not have any presidential value and the other other you don't see that as an impediment to the city of redmond simply reenacting the same ordinance against the the challengers in that case so i i don't see that all of that the chief justice in the in the match is not what he's did concur in that judgment which i think could be fairly its ordinance i would also note for the court's information that the washington supreme court has not stablished any presidential demonstrating that the washington constitution the want the watch and constitution i does not offer independent protection for commercial speech that those federal cases would continue to control i don't believe so your honor and i would again point back to metromedia where the supreme court noted that there was a meager record involved in that case as well but i think this is going to be sent never thought a number of billboards and in california had ira and san diego has some idea as to how much they were worth and what the life expectancy of all that of course we're talking about about the sandwich boards and hand held signs here we have any idea how many that took place just on a percentage basis how many signs are covered by the exception got just coming fifty percent of the times now because of the huge real estate exceptions i don't believe the record conclusively speaks to that but again it's our position that an ordinance is patterned after the one i've told and metromedia is spatially conclusions of the city's code enforcement officers that she thinks that there has been a significant proliferation in science since the injunction the went into effect but there's no foundation for that officers that collaboration that helps answer that question well your honor again this goes back to the precedent that has grown up around the met for media decision and our strong belief that no such supporting evidence is necessary to simply have to  to the legislative judgment of the city council in the planning commission that this does have a beneficial impact under the third and fourth prongs and that's good enough in shorts and yes your honor i can believe that that is true and i think that that's the point holding of the actively versus court shayla's decision this course in one thousand nine hundred seven ruling that involved a very similar challenge for the one involved here based on under the elected under inclusiveness of the city of seattle to sign an ordinance and the court in that case held that as a matter of law and ordinance substantially similar to the one involved in much from mediocre decision it's facially valid and directly advances the city's regulatory interest notwithstanding the absence of statistical proof and i think that if nothing else should control the outcome here this mr well if you try and i'm reading the fairest decoration correctly  and other businesses in redmond have every much as right a right to call and direct customers into their businesses as any establishment any business and any seller in redmond making an equal protection argument council no no you are banned all news racks does not mean that if the news racks are allowed it may it may then make content based distinctions among various types of news that news right so we think that claim in measure media that they hypothetically might have been able to making the equal protection argument simply because the first amendment provides plenty of grounds for us to argue that this law is unconstitutional but i want to get back to your metromedia point because we strongly reasons metromedia is different is number one the supreme court made crystal clear that in that case they were dealing with a lot of words and that it was it was a very significant that the city of san diego was wrestling w deal with very large structures affixed to the ground in concrete built out of structural steel that the court actually made clear are in sometimes much more akin to buildings than they are the sons so it made sense in that context for the supreme doesn't that directly apply to the situation here that some types of commercial speech can be forbidden but others may be permitted in the judgment of the legislature of the city you know you want to put a couple reasons first the supreme court actually dealt with that distinction was not a it was not a distinction that essentially favored some speech over others it was more a locational distinction then as the supreme court stated metromedia does not stand for the proposition that a city may make a distinction between what the supreme court is talking about that this thing stand between regulation of commercial versus noncommercial speech they're very not questioning the right of the city to regulate and to forbid certain forms of non commercial speech the off site on site distinction involved disparate treatment of two types of commercial speech referring to metro media that i read that completely the opposite of what you're saying metro media for the regulation at issue in that case did not draw a distinction between commercial and noncommercial off site billboards and if you with a few exceptions it essentially banned all  differing goals of the city then it's it's subject to challenge and then it is like you know constitutional because your argument would make sense to me if we have quite strict scrutiny and treated commercial speech as if it were noncommercial is treat like sliced that they don't have to completely start could put you in with the city's ban be appropriate if the exemption was only for political speech or political signs your honor i think that that would is content based and i understand you want to you want to get into that pigeon hole which is unique to the first amendment but it really years you really don't want to compare yourself with political science you just want to compare yourself with real estate signs well it's not just real estate signs are the same observation which is that small signs located close essential small directional signs directing people to a retail establishment are vital to small retailers and that was even in the context of tobacco advertising and the supreme court struck down the regulation because it prevented all of those things without ever really examining the sign ban in the context of the needs of small retailers and small there your honor is that when they actually try to of course the law when they told people about the law the law worked under those under that that on that the basis of that fact testimony and those facts there's no way i think that the city can justify the broad sweeping ban that arbitrarily says essentially we hate stand with sportsline so let's get rid of them but real estate signs are ok there was just no good grounds to distinguish between are you advocating going back i can't say i mean they have said that certainly they said it in the in the letter to the court and they sent it to us beyond what they've said i just have no no idea if that you know whether or not guilt do that if they're i mean obviously they can't do that if this court does what we believe it should which is rule in our favor i believe they certainly can do that if if the court rules against the something that's the spice like that is part of the reason that the case is still alive controversy but certainly the court can that given the fact that they're still pursuing the appeal and we still haven't entitle him to a determination by this court on a nominal damage claim i think the case is still a lot of one thing i would say on the on the the sort of movements question one one your honor very briefly i'd like to first address the move mr issue both parties in this case have agreed that the case was not moot and the city's recent legislative effort in adopting new new legislation governing portable signage was a direct upon the type of signs that the city has addressed as being problematic from both the traffic safety and the static standpoint and it does allow a greater following science just by virtue of its going based approach again  that it would limit to some degree the proliferation of signs but if it had its druthers it would go back to the old ordinance and restrict them even further that's absolutely correct your honor and just to briefly respond to some of the issue company case didn't discover the networks faced in the greater new orleans case that were relied upon heavily by the police in this matter and cited by this district court has nothing to do with the times we're not dealing either with news racks on sidewalks your label advertisements or radio advertising and we're dealing with outdoor advertising and that's from media and it's lengthy progeny to control as a matter of luck with respect to the statistical proof issue under the central supreme court and disregarding that essentially turns the whole concept of precedence on its head we heard from the appellee just about their attempts to impose some sort of a content neutrality requirement upon the central present standard that it's him test no basis in case law there is no controlling case that i'm aware of that requires a commercial speech regulation particularly one end of the secondary impact of the speech rather than  across the nation almost uniformly rejected this type of challenge as long as they regulation at issue directly advances the city's goals the fact that it may be under inclusive and doesn't encompass all the problematic articles  challenge for regulation may reach further than necessary to accomplish the city's goals i think that the district court misapplied that wrong and focusing on the election other means by which the city could advance its regulatory purposes that is not the appropriate approach under sensible thoughts on the fact that there may be alternative methods that regulation is one factor that the court may consider but the supreme court has gone out of its way repeatedly to reiterate phone regulatory interest happened to be outweighed in this limited context by for example real estate signage i don't believe that that undercuts the city's position in the case thought at least cited reaffirms the right thank you very much