good morning your honor is may it please the court julie marie for plaintiff appellant mr joseph yellow if i could i'd like to reserve three minutes of my time for rebuttal this preliminary injunction appeal involves an ordinance that requires anyone including my client who seeks to use sound amplifying equipment on public property that is audible more than fifty feet away to obtain a permit before doing so it applies regardless whether my client acts alone or part of it as part of a large group it applies to noisy sites like six flags discovery kingdom as well as quiet ones and it applies regardless whether my client intends to or actually does create a noise disturbance in fact under the terms of the permit regime permits he is prohibited from creating a noise to servants when using sound amplifying equipment we believe the district court erred created committed a legal error when it determined that the chapter eight point five six was narrowly tailored to advance the city's interest now to be clear we don't disagree or we don't challenge this city's significant interest in for example of voiding noise disturbances potential problems that those disturbances could create in terms of distractions and what not we don't challenge those but a long line of this court's cases has however  made clear that it is not enough for a city to simply put forward a significant interest such as traffic control it actually also has to show how that interest is threatened in a significant way by the regulated conduct so for example in the food not bombs this court actually said that the match between the regulated conduct in the interest that threatened there have to be events that realistically present serious concerns significantly beyond those of daily use so it's not enough for the city for example to say that if someone using a bullhorn might engage in a noise disturbance or might create distractions for drivers there has to be a much closer link in order to find that chapter eight point five six is narrowly tailored to advance the city's interest in this game but what interest does the city arguing for now well so i think that the city has focused on the fact that it added findings to chapter eight point five six but i do want to be clear those findings we think merely confirm what the district court and the parties proceeded on in terms of the interest in preventing noise disturbances below so in chapter eight point five six point zero one zero this city points to findings with respect to potentially threats to public safety to you know that it might cause traffic accidents the use of sound amplifying equipment it also refers to some competing uses if you look at the noise disturbance ordinance those seven point eight force the absolute prohibition the city has always defined noise disturbances to in compas conduct that for example would in danger a public health or safety that could endanger personal property or that could annoy a person of reasonable reasonable person of normal sensitivity so we think the interests of the city have remained the same throughout even though the city has added some findings to its statute and the way the st right now essentially you get a permit for the asking but there may be some delay and there seems to be no authority not to give the  well that in chapter eight point five six point zero eight zero the city can deny a permit if the application includes materially false information is incomplete or the use would violate one of the conditions of use but conditional additional conditions added to the permanent for example with respect to competing uses but yes if you do as my client mr coo b l o did in his e mail to the city that that s t r fourteen and say i'm not going to create a noise disturbance i'm not going to protest near sensitive sites i'm not going to use a bullhorn that exceeds fifteen watts of amplification you should get your permit the only thing that the city is doing is essentially forcing that protester to out when the locations are not in use right insofar as they apply to when they're when the places are not in use hospitals clinics animal care facilities we use that your honor as i think an indicator of the statutes overbred the meanest as  my client has made clear to the city though where he plans to protest is not actually within three hundred feet of those sensitive sites so it doesn't actually apply to him but we think it's an indicator of over a breath it's not necessary certainly to this court finding in his favor either on an as applied or facial challenge so the only thing you're really challenging flat per is the permit requirement in point zero three zero in that it requires my client like anybody if he's using a bullhorn that can be heard more than fifty feet away he has to get a permit and under the terms of that permit he cannot create a noise disturbance so i think this case we pointed to the the arab anti discrimination committee decision that this court cited with approval and extensively in the food not bombs case i think this case is similar it where a city essentially requires a permit to have people identify themselves only to apply to that permit requirement a prohibition on the very conduct that would permit them to to institute a time place and manner restriction that is not narrowly tailored and certainly here where it's a sweeping permit requirement across the city anywhere on yeah i don't remember if that was the exact if you use the term crime but there was certainly the suggestion that it could be a criminal offense given the confiscation but but there are you know certainly is no doubt here that the there was this threat of enforcement against my client and the permit requirement remains was there any chance that the permit had he asked for one would have been denied well in terms of his particular use restrictions or his particular intent to use it right i thought the ordinance was was fairly lenient in that the the person in charge of evaluating these applications was pretty much a factor we required to grant the application i certainly with respect to my client your honor who said out up front that he was not intending to create a noise disturbance the city would have been required we think should have been required to issue a permit but but the supreme court for example was clear in the watchtower bible case simply because the permit requirement is ministerial and it's always granted that doesn't you know centrally excuse an unconstitutional  which the speech is going to be made like he could have gone out there he didn't have to tell the city's going to go out there and protest six flags he could just go out there with by himself or with ten of his friends or with fifty of his friends but once you introduce a bullhorn that it's a different situation that's true your honor but i don't think in light of the supreme court's decision and cya that the  hear the bullhorn you sound amplification the supreme court has acknowledged is covered it's protected by the first amendment so we don't disagree this is a time place and manner restriction they weren't saying he couldn't use a bullhorn at all but they were restricting his access to the use of sound amplification very very similar to what was at issue in science that's covered both by the first amendment and by analogous california constitutional provisions if i could turn to the one other point that i wanted to make on on with respect to the narrow tailoring is the availability of obvious alternatives because this court has has said in its cases that although  the city is not required to use the least restrictive ordinance and the court shouldn't apply a least restrictive means test nevertheless the availability of obvious alternative is an indicator that an ordinance is overbroad so i want to go through what some of those obvious alternatives would be i think one of them the most obvious one is in forstmann vigorous enforcement of chapter seven point eight four when someone actually does create a noise disturbance you know there is a prohibition against that in the city so in cases like mcallen the supreme court has pointed to the bail ability of similar statutes as an obvious alternative that w permanent requirement if you want to create a noise just essentially for permission to create an earth yeah i think that that would be a very different story your honor and as we pointed out in the rosenbaum case which the the city relies on the san francisco ordinances is similar to what you're describing your honor it allows individuals to use sound amplification in circumstances that would otherwise be a public nuisance so it does at least serve some other purpose here the only purpose is identifying people who are by the terms of the permit regime committing not to engage in the very same conduct that is the only basis for the government's ability to regulate it  o that would be one alternative is the enforcement of the chapter seven point four another alternative is to have some kind of first come first serve provision and you know it's possible that the city could say if you have a bullhorn and you show up and there's someone else that has a bullhorn or you know that you ask people to spread out if they're all using horns you could do something like that if it would create a rise to the level of a no disturbance but for an individual single speaker registration requirement you know we think that that's we've far too broadly in light of the alternative the various alternatives that the city would have available to it injunction in this case to enjoin enforcement of an ordinance that no longer exists at the time that he filed his motion let alone or if it does exist i mean the main thing she's complaining about or they're complaining about is that they have to get a ordinance and that was true before it is true now and that hasn't changed is that right the fact that a permit is required you're correct your honor because the conditions surrounding that permit have changed substantially in the original ordinance there was no exception to the permit requirement you had to get one and there was a ten day notice period i thought you did have still have to g now three days now into the current ordinance under the old ordinance it was but but you said there was no exception there still no exceptions still have to go on there are exceptions your honor actually there is an exception for private property where you have permission of the owner and for activities in response to an occurrence where there was insufficient time to go and get a permit in that case the ordinance just says try to get the police chief some notice at least an hour before the event but you don't have to go through the permit requirement so it includes those exceptions in addition to that there's a definition of sound amplification device in the original ordinance there was no definition however in the new ordinance it explicitly states that that is limited to devices that projects sound fifty feet away so i would say that that's more narrow additionally they're used to but she's still challenging what's still there so why don't why are we worrying about what's not there as opposed to what is there well your honor the standard here for mootness is whether this presents a substantially different controversy than what was decided by the decided it doesn't because she's challenge she challenging the fact that she has that they have to get a petition to so she may be on weaker ground in a sense that some of the arguments she had before about what was wrong with those who aren't and aren't there anymore but she still has a basic problem she has to get the  she still has to get the permits around our house for a permit where there are exceptions and there's only a three day notice period is quite different from the only one who are late again or litigating what's there now right i know it's not unusual to have these moving target clean these kinds of take cases and it's admirable that the city went back and you know thought through what it was doing but it didn't say and never said you know i think maybe we just don't need these permits and if i had said that then the case would have been mowed but it's still insisting  need the permits that's true your honor but it does put us in a difficult position trying to evaluate abuse of discretion of the lower court when the lower court didn't consider the ordinance in its current form it didn't have the benefit of but it can granted the  anyway it is stronger now than when the district court considered the original ordinance that is true but just from what workability standpoint i suppose the court were to say district court you should go back and enter the injunction we go back down to the trial court and we never say that we say you know you know we were first the failure to grant the injunction and now go back and relief your honor but the complaint and the issues below are still based on the original ordinance there's going to have to be some reworking of mr coote belows claims before we can even begin to address the preliminary injunction as to this ordinance that's the huge problem we see with the specifically called out in the new ordinance and the city when it acts and it was designing the ordinance to nearly tailor it to those interests in this case was that narrowly tailored narrowly tailored and that it only permit there's no fee there used to be a fee there's now only three days notice and there are those exceptions but what i mean i understand that there is a list of purposes but i don't understand how the purposes match up with the orange because if the or no and if the permit requirement is essentially you promise to comply with the laws that otherwise exists and then we give you a permit then how is the permit doing anything other than distract the nice subset of stature and saying when you can make noise it gives the city notice your honor and a chance to respond so mr katyal of situation is actually an excellent example of the purpose of this ordinance he's using a bullhorn in front of six flags amusement park an area where in other areas that might constitute a noise disturbance but probably would not do to the noise around six flags however he expressed the stated in his papers that he's using it to try to get the attention of drivers who can't otherwise reach just with his normal speech so we've got a situation in this case where he's distracting drivers as they're pouring into six flags with pedestrians that's creating a traffic safety issue  so in this case that's exactly the type of situation where we want to be able to be cited under the statue of stature for creating a nuisance but how does the permit help well your honor it's not necessarily a nuisance and we don't think it's needed to prohibit the conduct entirely we would just like an opportunity to send officers down there to make sure that there are no traffic hazards going on and to deal with that if they see it and also for other reasons to protect the protesters and anyone who might come and clash with them with their opposing viewpoints but that not all applying those reasons really don't have relevance due to noise i'm sorry and they have very little to do with the noise and it would seem there for a kid being consistent with all  case law that says that for small numbers of people to require a permit is just conservation suspect in itself they have to do the portland case and not bombs and so on you're out of they have to do with the distraction that the noise causes it's not so much the noise itself it's not that it's you know noise pollution and that's the problem it's that the noise is sudden and unexpected and it's likely to distract the drivers and pedestrians who are walking around in this area in large groups that's the problem it's not that it's that it's an annoying noise or something of that nature and so it's that distraction that we're really targeting here with this ordinance so it's just it's what they're saying not the it's entirely in its entirety we would just like notice so they come in and have officers there or someone there to ensure that that isn't going to cause traffic collisions you know to help direct traffic if needed to help control the situ what you're saying is that is if mr couey alloa had gone to the city and asked for a permit he would have gotten it absolutely ok and that and what's the consequence of the permit the you send the police officer out there to make sure that there are no traffic problems caused by the bullhorn whether or not we send someone out there your honor depends on the circumstances as mr carville is brief points out we do frequently send officers down to that location when there are protests to assist with that this would just be a way of giving us notice to do so and perhaps if there is just one bullhorn or perhaps if it's a different circumstance maybe we don't send officers that time but that notice of something coming of the sound application is going to be used gives the city and presents a greater issue that the city sees and that was part of what the ordinance was tailored to address injunction really suggests that no irreparable harm is likely in this case that in addition to the fact that the ordinance generally is not enforced as has been shown by his very clear timeline of multiple protests that he's been to with well i think that there's some discretion in the enforcement your honor the police exercise when they're out there but this is relevant to the irreparable harm the fact that most of the time it appears that the police are not exercising that discretion no one taking a break and then when he stops taking his break and wants to go back there that's when he has a problem and it seemed to me that he had very regular protests planned and that that was outlined in his briefs during that period that information with me either the last two elements are the balance of hardships of the public interest and they're really just wasn't a lot of information on this from the plaintiff the district court correctly found i believe that the city's hardship is and not being able to enforce this ordinance not being able to regulate this sort of conduct all over the city not just in front of six flags because certainly there  it's just the it's the basis for the permit requirement and it's that we would like notice as you pointed out the permit is essentially yours for the asking just fill out this form there's no discretion anymore in the new statute if it meets the requirements so it's the difference between knowing three changes in a fancy you're going to have to send out a policeman which if you do i don't know if you do or having somebody call and say he's out there with  about the case law if you had seventy five people he could do what right that's what the case law says but you don't want if there are separate permit requirement for large groups we're demonstrating or there's one for parades your honor but i don't believe there's one for just protests and demonstrating larger but it's a significant group that's going to parade or demonstrate and they want to use a bullhorn they have to comply with this one as well thank you on all i'll be brief i want to make two points one with respect to the narrow tailoring i do you want to direct your court to fifty one which is the only dark liberation that the city put into evidence at the p r i stage with respect to a justification for its restriction on speech that is a declaration from the deputy city attorney it is not just insufficient the justification is non existant there in terms of how the city's interest relates to the regulated conduct so i think that declaration is the only evidence that the district court could have relied on and it's plainly insufficient to support a finding that ordinance chapter eight point five six is narrowly tailored i would point you know to judge a person's question about the size of the group you know if certainly if the city had used a permit requirement of this nature for a group of twenty five or thirty people that would be plainly unconstitutional under this court case law if it were using it just as a notice requirement for groups of that size what it sounds like from the city attorney's discussion of how they plan to enforce or use this ordinance is that they are using it as centrally as a backstop of tracking protests and demonstrators and as she pointed to the speculation about clashes between protesters that has nothing to do with the sound put off by a bullhorn it's completely unrelated with the other thing that i would point out on the narrow tailoring point is this fifty foot restriction this this permit requirement applies to anyone who's bullhorn or other equipment can be heard more than fifty feet away if if i walked out of this courthouse on to seventh  yelled across the street that would essentially be the equivalent of what would be covered in terms of the carriage of sound that is a sweeping restriction on my client's first amendment rights and others only restriction as tell the city three days ahead you're right you're out of that it does not absolutely prohibit him but in cases like watchtower bible the supreme court has been clear just because it's a ministerial permit requirement that doesn't mean that the individual's first amendment rights are not infringed and quickly on the issue of irreparable harm the delay in bringing this of course my client was acting pro se your honour's i'm sure have looked at his briefs they are not your typical pro se filings i think in animals so why would he delay seventeen months before bringing out a player in josh's question well he filed the suit within a year and then brought the preliminary injunction motion within a few months i believe that there was some discussion as to whether that would be necessary with the city and so it's not as if this was sort of a blank slate i think there were ongoing discussions between my client and the city yes whether  was the case racially and screening us that when the case was originally brief there was an order that was put out i don't think it was in response to anything in particular for the appointment of pro bono counsel and given our first amendment background we  volunteered to do it if the court you know other questions we'd ask you to reverse look at you thank you thank you counsel the matter submitted