morning international outdoor is an outdoor advertising company that post both truthful commercial and noncommercial messages on signs throughout michigan primarily in southeastern michigan international outdoor applied to erect signs in the anything like that you would not have been able to post to erect these signs even if you were giving directions or if you were a special event or if they were temporary there was nothing about this these billboards except for theirs that put you in this position well let me ask the court i would ask the court to consider our complaint in our complaint in the section identified that the signboard of appeals in place and the city of troy had a track record over the last approximately seventeen years of granting almost one hundred and ninety variances and for size four signs like our size of science the larger science the rock the city and so we are oh so they were granting variances for billboards they were not not for billboards per se although there is there are billboards in the city of detroit they were allowing other large commercial and noncommercial based science and so on you say other large commercial and non commercial signs you sign board of appeals all applications so they could make a determination based upon content that was i don't think that's an allegation in your complaint is it it is what we read that extensively for the instances i think that was the allegation in which the city of troy granted variances from its regulations and our point was that troy was using the variance process is a way to regulate content and that's why we challenge what if you are a warrant you know if you were here on line person you might have a better argument it's almost like there's kind of two classes of people you're talking about vague when we ask the thirty six representative of troy to identify what these standards met he had no idea what they met and that's clear in the in the transcript of his deposition in support of that back count if i'm not mistaken the judge permitted to proceed that is correct he did ok and then you are not challenging you're challenging the grant of summary judgment  that the judge found that since we did not comply with the sign ordinance the fact that we could find that the fact that he concluded that the variance process was unconstitutional left us without a remedy because we didn't comply with  how could i ever apply with a sign ordinances restrictions to the extent that i'm seeking a fur barretts our argument was to the court which it concluded was the case we were subjected to an unconstitutional prior  put the billboards up you know i think in large part it's because of the high nature of variance as it were being granted i have to support your not arguing you were entitled to put them up but your claim seems to be that you were entitled to be judged on a non con to a standard correct we were entitled to our fair day in front of the variance in based upon their almost ninety percent grant rate we thought that we could we would be we would prevail in there based upon all of this argument is this is a strictly for point for count one the variance which then there would be amended ordinance seem to have fixed yester and so that's our point leading us into our rd argument which is the city survives of the city sees no more than twice as the noise and twice from the court that there variance process is unconstitutional and amended in the middle of the case after i follow dispositive motion and so in that instance i believe we are a prevailing part respectfully erred in determining what what about count two how does the amended ordinance affect that if at all or how does your argument differ on count two so so obviously we were dismissed on count two and couldn't proceed and to the extent that that you're appealing that dismissal we are we are but but post that dismissal there was the amendment to that ordinance so what would that would leave us with this whether or not there was a damages component to that claim and once again the city of troy made exceptions to us to do science based upon their content allowing you know and international out there is allegation and it's complaint was ultimately that it's signs show the various types of messages in a billboard is unique in the issue is what's the right standard to judge by did read did read mean to apply to commercial commercial as well as noncommercial and i think and i think that's exactly correct and i think read on its face and i think the court again  to consider the recent opinion of thomas while thomas was a decision dealing with a sign that said go usa that point in thomas was that that was a billboard in a changeable message the court invalidated top tennessee's highway control act  for the very same reasons that i think it would apply here re changes but with respect to count two you would have the same argument that at this point all you or you could get is damages from what the time of your application until the time of the new ordinance correct and i think that was a question of fact for the trial court to determine after getting liability i am still struggling with how would these damages measure your honor i  that the ordinance itself was so severe that is it limited to one hundred square feet that almost everybody needed a variance or was a lot of people needed of exactly what the ledger out of there was no location for a sign no location visible because of troy's unique typography which i have alleged i seventy five dollars was raised at this level a sign to be visible by by the freeway in the areas allowed commercial and industrial intro i would have needed exception to the variance now they might have said thirteen feet versus fifty feet or they might have several our ten by thirty vs fourteen by forty eight i appreciate those are all discussions that we should have had with the sign board of appeals and instead what we were subjected to was this falling process i see my time is over when you  think at least three of four times you've said that's what we alleged and i'd like you to tell me which paragraph of your complaint you alleged about not being able to see all the things that you mentioned troy is a big city with if i seventy five running through it a lot of people ask for variances that's not an unusual number but what mr barrett failed to to indicate and we pointed this out to the lower court those variances were minor variances there were people asking for three feet here ten feet here plenty of was asking for a six hundred and seventy two dollars square foot billboard when the ordinance at that time only allowed three hundred dollars in fact as we pointed out to the lower court plaintiff actually conveniently left out some of the requests for billboards that were denied by the board of appeals because the three ish three standards were met and with billboards there is one existing billboard that was a non conforming structure from several years back at the time plaintiff applied there were no other billboards as that's defined off premises advertising sign of six hundred and seventy two dollars super foot with regard to the thomas case that case decided recently by this court specifically said the sign in that case although it was a billboard was a non commercial sign so the court this court this circuit court of appeals applied the strict scrutiny because they determined that sign was non commercial although if you read the opinion it mean it doesn't rest wholly on that does it that is the as in read itself the but the signage at issue were in fact non commercial but the attack on those ordinances as being content based did not rest on whether they were commercial or not but the this case that court decided that a distinction between off and on promise signs is a content based restriction which we don't necessarily agree with and i know that there's a petition to review that that germination but read it read itself i mean the problem for me or for your both is that read is very strong about content based and it doesn't say anything about oh we're only doing this because it's it's noncommercial and of course the whole question of the distinction between commercial and noncommercial is a little dicey isn't it after discovery network of in going back to the question regarding reed yes really doesn't mention the distinction between noncommercial commercial but it's interesting that reid doesn't mention the central hudson case of off which is the standard that's always been applied to commercial signs whether it's content or content based or content neutral i know the plaintiff relies on the sirocco case as well as the tam case and claims that those are instances where the court has applied strict scrutiny to commercial speech but if you really look at sirocco case it doesn't actually do that serato opinion says in this case there's a baby we should do a heightened level of security strootman a because the actual regulation the statute in that case actually showed disagreement with the speaker was viewpoint discrimination in the same thing in the tampa cases cited by the plaintiff the lanham act in question the record indicated this is actually may have heightened  level scrutiny because they're actually disagreeing with the speaker in this regulation so it's not the good to the extent there are there are content based judgments here been political i mean that it doesn't wright's not based on that but judge steve examined that in his opinion he said that yes so when there's some commercial or noncommercial then you have to make a distinction whether or this situation but i'm asking a different question ok i'm sorry i'm assuming it is commercial speech or government lee commercial speech but i'm asking a different question ok the distinction being drawn or the regulation itself is not of commercial speech it's of all speech all signed speech the regulation applies to all sign it's not based on the nature of commercial speech rate because they could flip a switch at least if it's electronic billboard and one day it says buy it well martin the next day it says vote right right and that's why i think judge steve made the distinction with regard to the plaintiff in this case that they're predominantly commercial messages that the their advertisers pay for and that's why he determined that the commercial standard was a clip of both what do you have and i don't think i'm making this of clear this is a regulation that in this case is into stand with him saying i believe so your honor yes when for example in thomas at the very end when this court cites other localities that have changed their ordinances it mentions texas having an ordinance state law that instead of signage it now regulates commercial speech court doesn't say it's good or bad but at least that's an indication of what some places have done let me let me put pressure little further in maybe i'm excited about this because i wrote the way ignore case that then the supreme court overturned after read so i guess i'm i'm a sensitive the strength of read if we were to remain and and say well you shouldn't have judge it under central hudson you should have judged it under read presumably you would still have in your view of a quite strong defense of your ordinance on the grounds that judge and rich is raised that these signs are just way outta line no matter what's on them drugs so would there be anything i mean obviously you want to win right now but would there be anything wrong with respect to at least count to saying you just used the wrong standard go back years the right standard and judge it well we've are we we actually argue below that our regulations were not actually content based we judge steve disagreed with us because our ordinance had a regulations regarding temporary signs and the temporary sign description used the words political signed real estate sign it was also a special  and we did argue that those type those really weren't content based the judge disagreed with us but we could still make an argument that our ordinance would still survive strict scrutiny because our ordinance is to  it could be and but and i guess i haven't really answered your question judge w they wanted to put up a billboard with a political message they still would not have been permitted to do it right because it would or could not comply with the size provisions that's correct right even if it were temporary it is too big cost you big yes and have you allowed political signs of that size or has anybody a wreck did a temporary sign of that size that was permitted no no in the city of detroit the city has allowed political temporary s the ground and remove remove because those are not permanent or temporary so it's a less of an issue with regard to traffic announce it will help me on this because you may be right but i'm i'm looking at the decision below at pages eight to eleven or so which discusses quotes the ordinance for temporary signs and flags and so forth and i didn't see a size limitation there i thought they were accepted completely sure is there another section that perhaps the judge it should have cited there that he didn't what should i look at for these parts that are quote again this is all under the original ordinance but as i read it they are simply accepted from the ordinance so did i miss some other part that i got as a part of the ordinance i don't know where i placed it at the moment that has size restrictions with regard this appeal our argument is that the sooner it was content base judge steve applied the crux standard than the central hudson standard if i may argue about the prior restraint ordinance the court properly determined that plaintive had no damages because without the severability clause plaintiffs signed still can't be though but we also it is also our argument that judge stevie technically made the wrong cause because i we contend are variance process is not an unlawful prior restraint to get a variance in troy the applicant has to demonstrate three criteria to the board of appeals it's our contention that because there are standards and criteria it was not and there was no unbridled discretion and therefore there was no prior judge's reasoning as long as it was argued on the record below and we made this argument if we if we accept your argument in support of judge on the severability point with respect to count one right would the same argument save you on count two if you were to follow my earlier hypothetical that we say no read applies in the lower court in our twelve b six motion we did our argued that the temporary sign provisions were severed both as well the judge did reject it that i have to admit we did not raise that in this current appeal but we made that our gut if again if you followed my cited by either party and the judge correctly denied the request for attorney fees but finding that the plaintiff was not a privileged party and i guess i'm done unless the court has a questions for  we did then present evidence to the court on that fact that was unrefuted by the city of troy they say now all small signs little signs they didn't say anything about signs they kept on their arguments here so to the extent that that's a question of fact and that further supports reman that we made an ass applied in facial challenge and the city albeit two years into the case responded to it i'm without a remedy in this case we've successfully the district court identified the problems in there and they're in their ordinance twice they reacted to it and then found that because a severability i'm entitle to no remedy and so i think that what's what that's what makes our argument different than the bucket in her buchanan in case which is is we're faced with a challenge in to the extent that judge rehnquist in writing that opinion suggested that it is a rare element when it came in the party would find no recovery through here we have no recovery through movies the fact that the city of troy saw the writing on the wall through two opinions and then finally took action suggests that i was the prevailing party now i agree that that is not my strongest argument that i have but ultimately i think i need to appeal it so that there's no law the case on the issue of attorneys feels i am successful in its remanded but number two what else could i have done in this instance if any word if any their toe in the water and say what fact find out whether or not facially their ordinance is or is not unconstitutional and then retreat or go forward based upon the court's initial take then they will never have an instance dispute that someplace else in the ordinance there are limits on even the accepted signs you know temporary play exult sort of things that their size limits that would have prevented your  application i didn't have to make an application i think this case is no different than read about twenty three different categories of science and just judge thomas only focuses on three of them but it's the same types of things science could be x the banners could be white now i don't have credential standing to challenge all of those however i do have standing to bring it to the court's attention that the entire permitting standard was content based whether i did or didn't need a permit my very signs in some instances based upon the message may have been had to correct the city of choice permitting process depended upon the content of the speech as to whether or not you needed to apply for a permit though if you're pure big sign however big was quote temporary you said you wouldn't have to have applied i may not have reached the they still regulated the size of temporary science but they were much more liberal and they were much more allowing for example size set backs and the like so that that's the distinction i'm trying to make which is as a billboard of changing of messages i can put up different site types of science all the time someone i want to one you said it's a flip of a switch if it was to meet electronic and that's exactly right my permanent scheme my set back my size and the like while never as large as what i was see that never is large as i was seeking i would have different standards which will pipe in some of the standards may have been acceptable to me and that's the give and take of a variance process that when you when you and can trust citizens with that decision could have been could have been reached and so i mean the thing about the different types of messages ok so your side is way too big you say ok i'll make it smaller and they say ok but then you can only display certain kinds of signs and not other kinds of signs that's how that would that's what ultimately i think that that standard would have created correct because you might have accepted a smaller size right in and you know i'm out of time but that's that's think that's the nature of the variance the visit is the give and take with the body thank you very much