good morning ladies and gentlemen our first case of this morning is the construction and general labor union against the town of grand  good morning your honor my name is nathan eisenberg i represent the plaintiff appellant labor's local three thirty and kelly bus mayor please the court enforcement of the town of grand should sign ordinance against the union where users a large inflatable raft polluted is unconstitutional and an infringement on the union's first amendment rights there's ample evidence in the record that this town fails to enforce its signed ordinance against speech identical to that of the unions including non enforcement for other signs on the public right away is not an enforcement broader inflatable balloons in the town and not enforcement for other temporary signs so it would help me if you were to  discussion between the twenty three the old ordinance basically and that the new twenty fifteen blog because there may be some differences you've got a lot of findings of fact just report that you need to deal with with decisions where there is temporary signs banners and balloons for special events and that's under five thirty five one way to leaven of the old ordinance under the new ordinance i think it's clear that there is quarters sure upon remained we amended the complaint to add the new ordinance i know you did that but my question is why is there any life dispute before there's if there's a couple reasons first of all  we made it very clear upon remained to the district court that we are seeking damages stemming from the original but that infield with action under the alder ordinates so back to my question short was there any live dispute about the twenty fifth lever because under the new ordinance the countess said that there is never going to be a situation where the union is able to use the inflatable rather than that the the question how likely is that the union will have a labor dispute in which that right act is to be state in the median of the highway right to bring court has said you can't it can't just be hypothetical that there has to be a substantial likelihood so i'm looking for a reason why there is a substantial likelihood that this dispute will arise under the twenty fifteen version which are the union was able to identify four or five different projects which the physical geography make a considerable to use the rat where the town's interpretation of the current ordinance would prohibit them from using the rock and so this is something that is what is the probability that there will be a labor dispute in which the union will be seeking to use the rat it's very high and that's what i'm saying are often in the past as the unions tried to use the ramp in the town of grand shoot i don't think if they tried to do it before this road it's one you know one is not a good means of predicting the probability but one in the history of the town doesn't suggest that there are going to be lots more no but the union was able to identify three or four large projects this is on page twenty five of the district court's opinion right where you allege that there are several recently completed projects where you would inflatables that you did not because the town told you that the two thousand and fifteen ordinance prohibited that action and you complied with a ruling that's correct rather than putting the red up and having immediate enforcement when the town said it will enforce it against the rat where there was a large project and these are i know the one example was there is a very large box store that was being erected and the union would have used a rat on that side for the town's interpretation at its current version of the ordinance would prohibit the use of rams so you have completed projects and you also alleged that there are future specific planned projects i don't know what the testimony looked like underlaid and judge precise at the time that this came up those projects were still ongoing i honestly after the trial concluded don't know if those projects have since been completed but this is something that the union required to com and used the rack because of the towns and for some activities against the rat so it was several additional people for several days so the total dollar amount was not incredibly large it was probably in the hundreds of dollars so i want i want to go back to the twenty fifteen ordinance for a minute because you are relying in part on some part capital d five no part  assigned can be used at least that's what i understand you be arguing it to the discretion of unique circumstances or unusual hardship is troublesome to you but as i've seen this ordinance under  five inflatable science are never permitted inflatables in general are never permitted unless you're in this community center sign destroyed you know otherwise it's not and that is to the union's rack and doesn't treat them as signs in the first place so where residents of that town want to decorate their lawns using an inflatable snowman it's one again that's one of the things that worries me say that a municipality or a state can band private structures on public land even if they're free to erect them on privately i'm not i'm not trying to treat them as the same but much that's what you you said well you can inflate things are your private property and therefore this is not a bad all inflatables ban on inflatables in the public way and it seems to me we need to decide this case to make a distinction versus the public erection of signs on the public right of way and private property my point is that in one situation where a resident inflate balloons that state to the ground the county has made a decision not to treat it as a sign in the first place so santa claus or olaf or from the snowman are are just decorations that the town treats them as holiday decorations now if the union's route was to be treated as a holiday decoration then it wouldn't violate the prohibition on signs on the public right away so the distinction here is what constitutes  violate the prohibition and so that is a content based and speaker based distinction that the town makes and it's course that judge would your question dealt with this up part five involving inflatable science t district is to find out where in the regulation and so what that means is that the only place that inflatable signs that could be used in the town of grand short shoot would be on commercial property and so the inflatable signs that residents are using if you treat it as a sign and not as a holiday decoration would be prohibited and that actually exists also under the prior version of the ordinance where it only allowed  to be used with respect to businesses so under both the old and the new ordinances when you three does assigns the residents use of those would violate the ordinance but instead the town has decided that they are not going to interpret those as being as signs that the other point that i would want to get to with this public and private distinction it is that the there needs to be a reason involved with regulating and so there's no correlation there between the public and private property if something is an issue that ecl on pleasing it's going to be aesthetically on pleasing wherever it's located and the same is true if it's a if it's a distraction to traffic so really that distinction between public and private property is misleading it's the interpretation of what is assigned in the first place  and so again i want to go back and ask a somewhat different question one other aspect of this analysis is whether there are adequate alternative ways for the union to convey its  and the union says only well there's not very much for traffic on some of these busy roads like college avenue cars are whizzing by they don't read things but it seems in this record that they just report compiled that there are so you're dealing with a frontage road that is in front of a very busy road one of the busiest roads in the town of grand shoot and so things like banners things like a man held signs things like candles were just totally is the main road in from the interstate through grand shoot to that town of appleton so traffic is moving quite fast on this road and this is on a frontage road where there is virtually no traffic and it's in front of a large ave and that was the problem that the union encountered after they were forced to take down the inflatable raft so your argument does go to soft correct what yes it there is an element of that but it goes to what is going to be able to be to convey the union's message in a way that seen by traffic obviously lengthy words on banners as cars are whizzing by are not going to be affective in the way that the symbolic speech of the rat was easily identifiable were actually rather small at the fill the boot sign was actually it wasn't that small it might not have been as large as the wrapper seen anywhere near sarge start wasn't made sort of the size of you standing there at that podium it could be it could be but and let's talk about the fill the boots kind because that was a sign that was a wrecked it on the right of way by the town's employees and the town there said that well that sign is ok but the union sign is not ok because it was attended and leaning it wasn't leaning of course it was free and free standing sign that was arrested on the public right away it was kind of a tent bright kind of sign it was on a metal easel that was erected on the right right way right so the town keeps calling it leaning but it was leaning on another sign that they erected on the right away and so there is you again have a situation where the town is allowing sounds to be signs to be erected on the right away but making these sort of abstract distinctions again those distinctions need to go back to the times proffered reasons for prohibiting signs on the right way in the first place so if the reason for prohibiting signs on the right away is safety and aesthetics a sign that is on top of the easel that is arrested on the right away presents the exact same safety and that  challenges as the rat does and you do concede though i mean we touched on this a bit in our former opinion that it's the unions entitle to put this giant rat on the public on the public right of for it way then everybody else has to be able to do same thing regardless of message regard listservs speaker so the town is stuck with this clutter it up with everything versus try to achieve nothing i don't so i know that in the contention but the district judge found otherwise you really have to be arguing that that's clearly a real use just repeating the contention that the district court found not to be factually correct doesn't really  doesn't help you or i was yeah i think the district court made a number of factual findings and then there are some quite there are issues that he made that were makes questions of law in fact that in a case like this need to bear special scrutiny in fact there are a number of factual findings that the district court made that really support the finding of content discrimination and in fact the district court made specific findings that there was a discussion of the content of the union's message when the original and horsemen took place and this is in the short appendix on page seventy five and seventy six and initially that the police officer who was in charge of enforcing the ordinance talked about the fact that they could use the rap because it was for a nine commercial purpose he also said there was confusion about whether or not that the rat concert was the sign so these are factual findings that the district court made he he then erred i think when he found that that wasn't content discrimination but he was making those factual findings he also found that the motivation for enforcement was likely concept driven at least when it came to the motivation of the representative of the property owner comes full and i'm not sure why the behavior or motive of anybody except mr the over matters he was the enforcement officer i'm sure that there are plenty of cops on the beat to don't perfectly understand the town's zonal was the fact that you can point to a confused officer doesn't tell us anything about the policy of that which is effectively the policy of m making a final decision on how to enforce and during that meeting the content of the union's message was specifically discussed within the context of whether or not the union's route was assigned in the first in addition this christie oh and his boss and then specifically amended the ordinance with the rack in mind to prevent the use of the racks in future situations i wonder if you're overstating it wasn't one of the exceptions a carpenters union explained that one of the one of the examples of the unwritten exception was a carpenters in another unit i'm not i'm not following you i think the examples were that of the boot was a large banner but it was still hand held and it is a little bit of a different exception i took from your argument some kind of the entire union and a misleading and my point of making the carpet example was there was another union which didn't have that problem right ordinance where we have actually fairly lengthy record of mr enforcement actions and more about the new ordinance i don't understand how you're supposed to draw the inflatable sign to be any sign constructive fabric or other flexible material that takes out a three dimensional shape when filled with sand of color sand with that definition christmas time one of the big pumpkins and you know happy halloween i don't i don't understand unless you're taking the position that art isn't communication which i think would be a tough one to giant statue or an olaf or a frosty or something else and you know picture of the child for muscular dystrophy or the rat or or some other communicative inflatable and you know i just don't know how you do if there is a difference and maybe you can enforce them differently but if there isn't it seems that the record  and that's what i'm talking about the nucleus yes and if there if there were any instance where an inflatable regardless of the the appearance of inflatable new ordinance anywhere outside of the community center signed district you're correct under the new ordinance that would be a violation right and so if if  could be in force against that application of an inflatable outside of she can go to the center district however that is not the  if you you know after read against town of gilbert after these recent cases you could say no sorry and you'd probably also be able to have a no left turn sign there i mean there you could reserve the right to have city signs only or something of the sort but what i'm concerned about under the new ordinance which strikes me in some ways is worse than the old ordinance are being drawn based on the message conveyed by the inflatable thing you purport to forbid them all together in the town of grand shoot except in the community center sign district but then mr ellis admitting that that's not what he's doing he's making a decision about each inflatable trying to decide if it's some kind of message or trying to decide if it's a decoration i don't understand the difference i think it's think he was asked that question and you know a hypothetical so it was not the circumstance before him that if he made all year he wasn't going to enforce it again protest by the union attempting to use a rat in some application that would be in violation of the ordinance i don't think that i don't think that issue is actually just a little in this in this case mr  making a special challenge to this on first amendment grounds and the town has its fingers crossed you know saying yeah but we're not really going to do it for sanchez or we're not going to do it on private property we're not going to  michelle entire man if you want in front of the tire store i get that you know and find have that but i don't see the private property distinction that you apparently used to have the old ordinance really does t clear the question is would you enforce against the other things and they tried to put examples in the record those examples largely dealt with the two thousand and fourteen or trends mr seale had his answer to to the ones that he was able to address but that you haven't done that i think that the real question is under this new ordinance is mr steele going to start handing out tickets to people who have decorations inflatable decorations on their private property notwithstanding his testimony characterizing use of inflatables as decorations signs i think we have to we have to wait for that instance of enforcement or lack of it forced into a rise in become part of the record for the court to consider whether there is a problem with the constitutionality of the court and see there on its face or and in it in its application we simply don't have we don't have that record before the before that comes before the court before that specific issue comes into court it's it's not one for the court to address and in this  some people out with a giant ten foot by ten foot batterer that people were holding saying x y z company unions you know with a giant picture of her rat that way the pickup would have to be driving around the block whether you could park it there on the on the service road if it was just parked that would be one thing a giant rat bouncing around the back of a pickup  like a safety detriment not a safety plus you're and i think that i think the point that the point of that that dialogue was really to demonstrate  of the message represented by the balloon was not being targeted whether as a practical matter it would have been a good idea to put it in the back of a pickup truck and drive it around i think it's open to well they didn't want to drive it around because they would have run up into a different labor law problem because the rat might have mistakenly been associated with some other business that was perfectly fine from the labor law standpoint they don't want to emotion but the point of it all is really to you know to show that in fact the balloon itself and the message conveyed by the balloon was not being targeted it was the fact that it was a sign that was  so where the union raised these issues in affidavits submitted in the court it went right into the towns unfortunate lines and the town made the decision not to apply its ordinances to those signs and that also goes where you have  santas that are in the enforcement or the towns were doing nothing right ok and that also goes with it it was ninety six examples that the union had identified of other signs that would potentially violate the ordinance and i think in this situation the judge's arny's work clearly erroneous because what happened is that mr thiel waited six months and then went out and tried to see if he could locate these temporary signs and again that's not