bully it must comply with constitutional norms in a traditional public forum the right of the government to limit expressive activity is sharply limited government can't hide behind a content neutral statute when it underlying purpose is to silence speech and we recognize that this is a somewhat unusual collector's veto case and it may even be a case of first impression but it can be logically extended or applied in this case because what you have your honour's is expressive activity that for sixty years was operative under six under the city's policies and was shut down only because of the content and i prefer the court to all that that's not entirely what the record that counts all that well for the court two pages to thirty three to thirty four of that of the record else summarize what it's about the city staff proposed areas the two thousand three memo or never know that will the city attorney stated very specifically at the hearing on june twelfth two thousand and twelve that the only reason the only reason that they were closing down the forum was because of the objections they received by the portion of the community that's not what the record reflects that they had reports from the from city planners and from members of the city council that this was going to let this process become very contentious that was going to be time consuming that it was going to consume additional city resources your honor the city's supplemental record zero one one three the only reason we made a good question to change it was it appears to have been an satisfactory to a number of members of the community that's what she said and then but that doesn't that doesn't say the  the controversy arose from the hecklers objections to the nativity so they weren't just tacklers they were they were now participants in the in the in the in that the exception that the city had made for the for the winter festival that's a distinction without a difference your honor respectfully because  the heckler's veto doctrine doesn't make that distinction now this court could settle on that as some kind of exception to the heckler's veto doctrine but i would argue that it shouldn't be an exception to the heckler's veto doctrine because you have very specifically that an individual and a group of individuals who are attempting to stop a particular manner of express victims that they're doing it for that purpose and when the city then decides that it doesn't want to deal with the controversy specifically says that over and over again then they're responding to the hecklers object councilor typically in a heckler veto case what happens is that a particular speaker is silenced and everybody else is allowed to speak and that the speaker is silence because of controversy because of opposition because of whatever this is not that's not your situation here the city has decided to with to withdraw that limit exception to its no unintended displayed in city parks rule and it applies to everybody on a neutral basis so where's the heckler's veto here and also shut down mr mr dix you're one hundred six under that logic and i'll just use by analogy if you were to consider in the early case the city in that case shutting down a parade simply because a mill would be shutting down a parade they would be shutting down and telling them all pray you know and that's with what would be a logical and prudent for the city to do under those circumstances under the circumstances here is it imprudent to shut an entire forum to everybody simply because some particular component of this form intentionally deliberately is attempting to shut it down that what is going on with the obligated to open the form in the first place if it's not obligated to open it in the first place like had a shutout because it has to it has to apply that particular standard required where a content based restriction has been applied and so in this case they didn't shut it down just with respect to just with  christians who wanted to put up the tip of the thing shut down with respect to everybody they set it down with respect to the controversy if you look at the bud case which has been very good not for this particular principle that's the three sixty three thirty four twenty the sixth circuit case in that case if you wish organization one it direct a large minority display on the main public square in cincinnati and argued that a city ordinance prohibiting any non government permit based use of the square during the holiday season violated their first amendment right to free speech the city wanted to control the square under an exclusive use policy for the specific purpose of shutting out controversial and unpopular speech and this is what the court set although the cit ordinance appears content neutral on its face prohibiting all private speech that normally requires a permit the district court concluded that it was de facto content based because the cities and cities purpose in passing the ordinance was to prohibit controversial and unpopular speech from being expressed in the traditional public forum public forum during the holiday season so your honor we have the same here we have a de facto content based restrictions where the record for a rule that may be an extension of the heckler's veto policy in my judgment looking at the facts of this case it is different from the typical have heckler's veto is a different from the knights of columbus case from the first circuit i believe so your honor for several substantial reasons first of all that was a judgment ruled appeal from a summary judgment not from a twelve b six but a rule fifty six additionally th court in that case adopted what was an animist standard it looked to the actual specific intent of the city the city fathers and and that's not the standard in the ninth circuit the ninth circuit under city of las vegas first versus foley is an objective standard where the court is wired to look at certain objective factors one of those factors is what the effect of the regulation is and in this case religious displays and more specifically the nativity scenes it understood what the effect was going to be that's only one factor of course that the court has to consider under folding if they if a group wanted to put on a the statute they didn't have to totally ban everything especially under a strict scrutiny standard when they could have done was under a case called supreme court case called thomas versus chicago chicago park district you see the site for them that's five thirty four us three sixteen to two thousand two case what they could have done was adopt restrictions or guidelines that said that permits would be denied if they were not fully complete or executed if they contain a material falshood or misrepresentation or where on prior occasions the applicants made material misrepresentations regarding the nature and scope of an event or activity previously permitted or the applicant has violated the terms of prior permits issued so those restrictions or those guidelines could have been adopted in this case and i would i would argue were contended that they would foreclose the city council as i understand it was concerned that they couldn't say we will we will allow only these christian to to be seen here i mean maybe they maybe they were right and they were wrong but is it your view that they would have been titled to saying no one can display this the ins here others and these christian groups that historically have been there for the past sixty years when the city opens a form to a particular type of the expressive speech then it can shut it down based on content so so they could have i mean as they did they said look we can't hold it open only for these christian speakers we have to allow others to compete for these that that was the policy and they thought they were legally required to do that and they did it and then it was the result of opening the forum to other speakers that cause them of a headache and they didn't like chain link fences or whatever become a big headache why could they shut it down that doesn't seem to be ratified by hostility well it is because that's the secondary effect of what the hecklers up to the heckler attempted to shut down the forward by making it so unpalatable for the city to continue the tradition and that's the nexus in the case and but they were complying with legal requirements by opening the form to all comers are you saying they required to continue to have their two hundred applicants lottery regardless because otherwise that would raise a concern well i'm not understanding that let me let me be clear than your honor in the year tw what the they went to a lottery the lottery selected eighteen spaces school for the hecklers and two spaces one for the menorah one for the nativity scene so they they were limited in that lottery  the the eighteen spaces that were awarded were based on misrepresentations in the application nine of them were left empty that was that was a misrepresentation material warrant that they made in under the thomas rule they could exclude them in the future to bar that kind of gamesmanship and the other nine were misrepresented what they were going to do as well they said we're going to put up a holiday display we're going to put up winter solstice what they ended up doing was putting a political speech an anti religious speech that's a material misrepresentation now what we want is to see that form open to all we would have liked to have a traditional winter display type of the same but the fact is is that as just as good morning your honor may please the court even chance of the city of santa monica the defendant a pal in this case i'm joined at the counsel table by my colleague barry rosenbaum the district court correctly granites the city's motion to dismiss and this this cannot be better amplified by the plaintiff concession in front of this record and in the reply brief in front of this court and in front of this court which is that governmental authorities have the right to prohibit private unintended displays with concession very little remains of this litigation and very little should remain with it do you feel they can prove and it for a constitutional reasons you agree with at yes your honor and in this case the city council did not do so for unconstitutional reasons the record is replete with the administrative reasons why the city council chose to and this narrow exception for unintended display well there's no doubt that the additional applications by the atheist governing the government's ability to regulate skills and truth that it was pretty clear in that case the city council acknowledged that everyone seemed to acknowledge it that's the reason that the the speaker is the fix  their cohorts were trying to get applications was to to get rid of the christians while there may be some positions from the community as to what the intent of the speakers are the laws pretty clear that you think th clear implication and you can you answer my question your honor i cannot so i can just second guess what the council's reading of the facts were in front of them but what i can say is that the council looked at the totality of the record in front of them groups your honor the the record in front of this court shows that there were competing speech and respectfully i believe that's the basques so you don't think anyone could infer an intent on the part of the us it's hard to say what jail and your honor if i may point to court to the record that has developed since the adoption of ordinance two four zero one it becomes very clear that the city council's ordinance was not intended to shut out any particular speech especially not speech by the planes if we look at the record that submitted to this court as part of the request for judicial notice by the city in twenty one and twenty twelve twenty thirteen and twenty fourteen there were substantial opportunities to communicate any group's message and notably in twenty thirteen the plaintiffs themselves were able to erect a twenty four foot long display containing pictorial representation of  in addition to that as part of the route that was on private property it was him palisades park your honor and the plane as that was part of the plane is opening ceremony for their display program the majority of their actual displays which were very a park with the original destination for all fourteen displays and subsequent to the adoption of the council's ordinance that ended the exception the planets were able to communicate their views by having their opening the holiday season to twenty thirteen and the holiday season of twenty fourteen and going back to two thousand and twelve there were three separate groups that engage in expressive activities in the city's palisades park there were two religious organizations that enacted all unattended displays was responding to that type of activity content activity thereby ratifying it as was i understand the argument to be yes your honor however that argument is belied by both the law and the facts i'll start with the law as a district court correctly observed as this court has this simply held in assessing whether restrained him speech is content based and i'm citing the might not either says the seattle city of seattle case courts do not engage in a searching inquiry for hidden motives the courts look to a literal command of the restraints if we look at the literal commands of the restraint that was contained in ordinance two four zero one the ordinance could not be more clear neutralize the base but it's also perfectly clear that the the people applying and for these additional spaces and causing the headaches were or were motivated by content in other words it was unjust they had a objection to an attendant are there are a number of responses to that first of all both the united states supreme court and this court has rejected repeatedly the arguments made similarly by this plaintiff which is that a statute that's new viewpoint base  simply because it's an act that was motivated by congress of partisans on one side does not support a finding of a content based legislation in both the hill versus the colorado case which is the which was a united states supreme court case that prohibited certain size thickness of wooden sticks and demonstrations so in you know with the ordinance i had words to the effect of you can't approach people within a fee for education and counseling and the court held that that wasn't  case this this council when a step lesser than the hill case because the ban was comprehensive the council did not single out categories of speech say secular speech or christian speech the council prohibited all displays while allowing on the ten it displays while allowing the type of speech that the plaintiff seeks to continue by having whether sleep flipping or attended displays the various myriad of opportunities that are demonstrated by the theory but i think this is probably just come slating this court's differentiation between manner of speech and content of speech and i think that conflating is telling in the center for bioethical reform case which is primarily relied upon by the plainness the majority opinion concluded that a statute that restricts speech only wanted this disruptive because of its manner not because of the content is an example of a content neutral regulation that's been affirmed time and again in this case the council acted because of the manner of the speaker some paleface part not because of their content and it's  displays yes your honor the displays have been there for many decades however by two thousand and nine two thousand and ten two thousand and eleven the record was clear that the administrative burden on the city had increased and that was because of the hecklers right well your honor i think if there were increased numbers of applications and there are competing speakers now and the knights of columbus case the court the city council was photo faced with precisely the same dilemma  where they operated in allowance of one crash for many many decades but they were face just like the city of santa monica with increased applications and increased displays as the court correctly  that case it was competing speech and the council was at a precipice and needed to make a decision they could allow the competing speech where they could conclude that the burdens of that competing speech was too much for the public forum that they were attempting to protect and that case was a landmark battle greens and then this case it's a landmark palisades park and the city council rationally decided based on the record before it the two hundred fifty four hours that the staff had to spend and managing the display program the new obstructions the damage to the grass which was all in front of the district court and now in front of this court was sufficient and now in terms of hours alone the record is telling two hundred forty five hours was was what was spent by say staff in two thousand and eleven as indicated let me let me let me shift the inquiry just a little bit let's let's suppose that instead of this being a lawsuit by the santa monica committee that this was a lawsuit by mr hicks complaining that the minute that he becomes successful in obtaining permits on an equal basis to put up displays during the holiday season that the whole an enterprise gets shut down in other words the city from his perspective he might say this was this look like this was on an equal basis as long as the as long as to christian to tip the scene were put up the minute somebody else gets in there and they shut the whole enterprise down as mr picked out a stronger argument based on where you are it's the city's position that none of the speakers would have a better argument than any other however the record it is interesting that your honor paul would need a little bit different as it is that his would be probably a minority view in a very unpopular view and as soon as as soon as somebody who's unpopular gets gets access to the soapbox so to speak and we decide to box away it's certainly the classic case that that would be closer on point with respect to hecklers b o cases and your honor correctly points out that the record is replete with evidence staff report and i quote that she indicated there were vast public support for the nativity scenes program however she correctly cautioned the council against engaging in a content based election to only keep the nativity scenes program so your honor correctly points out that the record in the front of the nativity scenes if it is perhaps a tougher road for this plan is to travel because for sixty years there is a record of accommodation and even at the precipice when the council was forced to make a choice and again much like the council's choice in the nice to columbus case there was every there was everything in the record to show that the council wanted to keep this program if it was able to do so constitutionally and i wanted to go back to the plainest allegation that this program entirely shuts out the planet's opportunity to erect displays one of the arguments advanced by the plaintiffs was that this was incredibly costly it would be incredibly costly for the plaintiffs to erect these displays or to continue to do so in light of ordinance two four zero one it is true that these displays are very large but ordinance two four zero one five not prohibit the plaintiffs from erecting precisely the same fourteen displays and precisely the same location every single day during the holiday as long as there is a practical matter they can't do that that seems a little disingenuous and they they can't speak the way they had for the past sixty years they can't face and then there's no reason to doubt it they can't take them down every night and put that back up every morning so that doesn't seem like a quite a fair characterization of the record indeed your honor however the united states supreme court has clearly indicated that the government did not remove obstacles not of its own creation and indeed the vote this court in the united states supreme court has consistently held that cost is not sufficient to authorize speech that's otherwise disruptive fact the vincent case the united which is a sign case some public property the united states supreme court noted that while it's cheap to put up signs and not attend them there are significant public impacts in the local government is free to regulate and address that public impact that may be that the plaintiffs would have to hold those signs that's incredibly analogous and similarly in the kovacs case kovacs versus cooper another united states supreme court case where the court was faced with the issue of soundtracks blaring through the municipal streets the plane has advanced the argument that it would it is certainly cheap to have a soundtrack blaring through the city but the government had a reason had a significant indeed substantial governmental interest and that cannot be outweighed just by the cheapness that would be intended upon the plaintiffs at the tail end of the donkey it begins with whether there are ample channels of communicating the message and that's not where the analysis begins and content based strict scrutiny analysis it begins with whether or not the first whether it's a content based statute and secondly whether the city has a compelling governmental interest the city has never even tried to argue it has a compelling governmental interest in this case so the court believes that it was content based restriction it's going to find that the record has no evidence of a compelling governmental reason it also will find that it can't narrowly that it didn't narrowly tailor the statute as i mentioned before and if even a single law it's content it's content neutral veto i mean you have to you you you don't ve don't argue the statue not face is content by the face of it's officially neutral ordinance your honor but from which the underlying facts fully one c that we've had all the evidence to the extent there is evidence is that they would actually would have preferred to keep an eye on it it was the administrative burden that went to this decision that there's no real objective evidence they would prefer despite what the process now the counsel for the city mention the minority case minority also said that a restriction on expressive activity is content neutral if it is justified that is based on a non pretextual reason the bourse from the content of the message attempted to be conveyed everything here is been pretext that we've seen also the city mention the fact that the in minority if you're going to look at the the third prong of the analysis and you're going to say what the city's been able or the committee's been able to put on its different kinds of displays which don't have the same impact don't have the same effect don't have the same traditional value to the community  in some some different manner than i would say you both to the case that council mentioned bill versus colorado or the supreme court said or foundational person in the cases or based on the recognition that citizens subject to rare exceptions must be able to discuss issues great or small through the means of expression they deem best suited to their purpose it is for the speaker not the government to choose the best means of expressing the message count your well or your time you may want to r ok i just want to respond to just move always earlier question about town at lexington the main reason the main distinction between that case and ours is that the court never considered a heckler's veto their theory at all and it wasn't presented in that case thank you your