on this in this case we adequately allege that the c p s for cannot completely foreclose free speech advocacy on a portion of a public sidewalk without meeting the narrow tailoring test set forth in the cone of the complaint goes through and basically tracks what the supreme court looked at in ruled in favor of in mcmullen that we want to engage in close personal conversations at the zone makes those more difficult makes our conversations less frequent a successful less effective it's hard to frustrate then a fight he's going into the  a facial challenge to the ordinance as amended by the two thousand and nine order and it's a facial peel as to the first amendment and the due process clause and it's focus i think you have your honor the ordinance as amended by the previous case focuses on picketing and demonstrating the zone i we also have as applied claims we did not one of those we we voluntarily challenge only at this juncture and my correct about that i think we do have facial and as applied challenge i don't think we have we on this appeal well we had you brief think we have we have distinction between the facial hasn't quite challenge in this case isn't it's pretty fine because we're only the pleading stage yeah but it's a distinction that i'd sure like to have a handle on and i understood that what we were talking about was a racial challenge to the first amendment and the due process of your complaint that it set aside in that it focused solely on the demonstrating picketing  approaches appear capable of serving the government's interest without excluding individuals from areas historically open for speech and debate of the court also says the government must show it quote serious and undertook to address the problem with the best interest of tools readily available establishment of a buffers and stated in the context of hearings that they were concerned about confrontations that this health care for their health facility confrontations at the entrance and  mcmullen and it wasn't enough the supreme court said no it even under intermediate scrutiny narrow tell them you've got to show more of it said the massachusetts didn't come forward to say here actual prosecutions that we did of people blocking the doors committing violence blocking the sidewalk happening even though we prosecute these people here actual targeted injunctions that we made against people who committed crimes in this place to get them out of there and then we kept having the problem and what the supreme court said is you have to look at that step and actually show something instead of just burdening innocent people and their speech on the side as a result of the findings that they made they came up with the buffer zone which is probably one of the shortest set that i have seen that certainly that has already been up your taken evidence and you and he were at a pleading stage here that's the motion that's in front of you to twelve b six it's not and we need we discover is there anything like that in the record  didn't we weren't provided the notice that the federal rules require so the district wouldn't say i'm converting dismissal a summary judgment well you participated in a hearing right that was on the preliminary injunction and you didn't you you didn't so you're saying that you had no idea that as the other side was submitting affidavits and a hearing was being held that the court might address this taking account of that further evidence with respect to the motion to dismiss no course not because the all the city said was we want you dismissed on the pleadings alone and then we had was also a preliminary injunction evidence but this record never said you know what i'd like to take the preliminary injunction evidence and consider it in light of the motion to dismiss and they convert that colin was a you don't really have to talk about that first step because it's not narrowly tailored is that your proposal here is that really does it really matter because regardless of breed they can't that's not the only way something is content based and this is what the seventh and forth circuits to recognize me did change the scenario now content base is what the supreme court calls a commonsense approach it's either looking at the subject matter on the face of the ordinance or looking at the function or purpose of  other circuits prior to read had said you know all we need to do and grounded this what is the government's purpose it's again it's purpose wasn't to attack content it doesn't really matter that morning to actually ask you to look at content first and read explicitly rejected that it's a good step in the first part of th behalf of the city this still has work and it's been upheld as constitutional once before by this court in brown and it should be upheld again as constitutional on this facial challenge i i think pale as an agreement but i think i think we're all on the same page now in this room that what's on appeal before us that how is a facial challenge limited to the first amendment and the due process clause dealing with demonstrating is that an accurate yes or sanity ok yes can you address the issue of this sort of there right out of the box because you know these are these are very significant important issues to a lot of people we're talking about right here yes right obviously but if it's true that the district court without notice to the plaintiffs took evidence  separate it out then how could we say oh she couldn't she was only talking about the perimeter injunction there if she if the very capable district court judge is citing record evidence instead of who confining herself to the four corners of the complaint how how can we know that she didn't have that effect promotion dismissed decision i mean i think if you read her opinion she very clearly breaks out i mean  that's error because again as you read her opinion if she first deals with the with the preliminary issue as you know is there a likelihood of success on the merits really that comes down to what difference does mcmullen make in this case because the ordinance has been upheld already as constitutional by this court in brown so from her perspective from it from just assumes perspective she needs to decide a legal question of does i just got to reach something ok i'm sorry  upon full consideration of the evidence presented plaintiffs motion for pull in marion junction will be denied and defend its motion to dismiss will be granted in part in tonight or now upon full consideration of the evidence presented the legal issue and whether or not mccollum makes a difference and she says specifically and this is on page twenty six of the appendix as a doctrine on narrow tailoring has not content travel it is another issue but as a doctor on there a tailoring has not changed since the court of appeals for the third circuit found the ordinance to pass constitutional muster it would be inappropriate for this court to revisit back to terminations as you you know your position is legal grounds and so all review your position is we could review her motion to dismiss decision and we would and then people would have to do it without reference to any of the information developed in connection with the preliminary injunction here you could and it's well is it good or is it is that something you're suggesting we should do if i'm hearing you right what you're saying is hey don't worry the motion to talking about brown's a case it says what it says you can't have your cake and eat to wear on the same page i hope you can have us you cannot encourage us to look at evidence developed in the district work  undisputed that if following this issue and brown the day after the mandate in that case came down the plaintiff in that case refile and you see obviously there is going to be a bar to just trying to bring the same suit to the language in this one it's doesn't it doesn't make this work it's content based i think if you look at the words of the gilbert sign code that were found to be content based it explicitly calls out you know it privileges we're you know pick your topic you're not abortion topic we're both we're both the great pittsburgh steeler fans and he's got he's got them on their red and he's got his fantasy football team you know with a bunch of steelers players and i'm trying to advise him slightly counseling him as we walk along the street and we walk into zome is it your position that my counseling him about fantasy football discussion is somehow going to be filing of this policy of this ordinance you were when you were just prohibits demonstrating in the fifteen foot buffer zone demonstrating is not that does not tell you what the content of the demonstration is and reverses town of gilbert says just stick with me stick with my hypothetical no that would not know if you're talking about football that's not prohibited ok so you know if that's the case haven't you privilege sportstalk a kind of con a kind of content regulation that's more subtle than outright statements about regulation is content that addresses purpose and function so if the purpose and function of the speech is demonstrated why isn't that directly contrary to read well read says resist the commonsense definition of content based regulation means if you regulate it on the basis of content or message or what if we're walking down that same street and i'm telling him this is how this is how you should get your buddy elected the city council you should do this you in fact it's important for you to do this if your friend elected to the city council i have a heated political discussion with him as i walk through the zone violated the ordinance i mean if it were not if it were not for under demonstration then you have not ok well then haven't we really just gotten to the point w were saying the only kind of speech that's really going to be regulated by this is abortions each which we're going to call it the city demonstrating it picketing well the ordinance is i mean and the  uses was upheld by the supreme court and in madison and shame and hill it indeed it was but now we're talking about read and if read means anything doesn't it mean that things that might have been said before are not going to be controlling now i mean that's the import of the seventh circuit and the fourth circuit's law is that we changes things well but in mcallen itself makes it clear that it describes for example leafleting as a form of expression so there's a distinction between the content of something and the form in which it is expressed and i presume is i think this is reflected in the case law even under read that demonstrating doesn't doesn't tell you what the content of the demonstration is and your position as stated in the record is that any discussion whether it's loud or quiet any discussion of abortion rights is i'd like to talk with you walking up to wanting to walk next to somebody and express your way and have a discussion and your position is that that's a demonstration that's a picket is a pretty good has used the word demonstrating to refer to  i would because but again because it's not concrete doesn't regulate it within that very small fifteen foot buffer zone which has in fact proved to work it does not draw distinctions based on the it has not and that is very clearly the basis for the district court's opinion which is that mcallen cites and relies on shank cites and relies on hill very importantly because hill also found that even under that doesn't that it's not necessary to resolve this case because i the the once that was at issue in read again i don't think it can be disputed that it it called out regulates method of expression a form of expression and not content because you don't know without if you see somebody going to straighten about something you don't know what they're demonstrating about i mean that that prohibition does not tell you what the content of the did that it does by its very nature set off some different kinds it doesn't talk about commercially it doesn't talk about conversations about you know sports make any distinctions but demonstrating in picking those or functional things i'm here to i'm here to make a statement about something significant and he doesn't that then by its very nature say this is a if you know a pizza place handing out a leaflet for a pizza could be a demonstration of its you know great deals or or great pepperoni but the fact is that read it once and read didn't really deal with that i mean if you look at and it doesn't mean that regulating form of expression like this is makes it content based and your point about the whether this one and suppresses anti abortion speech a call and also you  know that law which was held to be content neutral was only in effect at you know number of which i think was problematic and i case of reproductive health clinics all across the state but chief justice roberts did not have a problem finding that that again as he said could avoid all these issues by simply saying you replied wrong stander we do yes i agree with that i think that it was mcmullen says that fixed buffer zones are truly exceptional they actually cite pittsburgh's buffer zone the contest we just want the chance to be able to develop those facts that's all we're asking of them mccullen under read i think brown said the test we're using for content based is the government's purpose and reed says that's wrong you slipped the first part of the test you have to look at this demonstrating question it was interesting that judge bassoon actually had a very similar hypothetical what if she and her walker walking down the street and i think the city backed into this by interpret inside the council as demonstrating and shank the injunction which is a narrower approach decision she only addresses as a as a legal matter what she got the motion to dismiss she'd be basically said this is controlled by brown nothing has really changed since brown done is that a fair you point to something in her discussion of the motion to dismiss to help us with this so i hope i'm not one of my colleagues but i really look i don't want to send this back to her unnecessarily frankly you shouldn't want to go back to her  so can you point us to something that shows oh she strayed over that line in the motion to dismiss face she straight over why she was she was addressing or relying on or working with evidence as opposed to surely she said she relied on evidence that was outside of putting and i think she got brown wrong too because in a column just changes the situation around and she didn't even have the opportunity to consider reid's impact because it came out after her decision and i think that alone also