good morning your hono gregory loosen nicholas newman your honor since time immemorial our public sidewalks have been a natural and proper place for free citizens to exchange information and ideas for that reason our public sidewalks occupy a special position in first and analysis however the town of campbell has barred free speech from the public sidewalks and each of its three overpasses town of campbell ordinance nine point twelve bans all signs two legs banners pennants streamers balloons are truly anything that might even be construed as a sign of any size or shape on all of the public sidewalks on its highly overpasses or even within one hundred feet of any of its overpasses the district court found that the town's ordinance was a valid time place and man restriction but the ordinance fails each aspect of that test the ordinance is not really you know good morning good morning your morning have been a number of other courts approved regulations similar to this one based largely on the obvious danger presented when people overhead are waving signs in front of interstate drivers who are drive we can you know driving at sixty five miles per hour and often unfortunately more than sixty five miles an hour absolutely not your honor what we're looking at is an all free speech on the public sidewalk no no aren't you aren't you saying that a number of other courts i'm what i'm what i'm asking you is whether a number of other courts have approved regulations similar to this very one no your honor the town is required to establish that this ordinance is narrowly tailored to each of the three overpasses in its town and so no other courts have approved such regulations not sound like you're saying like this where it bans all free speech and public sidewalk on the overpass and even within one hundred feet then how about our own decision our own second have lost are irrelevant and all the cases in which the plaintiffs have won support you this seems well strange your honor i think that's miss considering what i'm trying to say the second case well let's look at the ordinance itself no i'm asking a question about the overt case yes your i wish the record different from the record in the overall because when you look at the ordinance and you look at the reasoning of the town and you look at whether or not this ordinance is narrowly tailored to the facts at issue in this case it's simply it's not so how do you come here apples and oranges be can't condone or tell me something that was in the record is missing from the record here well when you're looking at simply traffic patterns in the city of madison and you're looking at the reaction and the facts that actually occurred in the overall case and you look at the here they're very different it's comparing apples and oranges and the constitution requires requires that the defendant's restriction be narrowly tailored and here when you look at all of the different fact that are in the record in this case it simply is not it does not meet constitutional scrutiny but actually counsel the ordinance in madison that was adopted during the litigation and the overall case was not tested in the overall case it was not before the court that's true your honor that's a very is that a material distinction that might be responsive to judge used to produce a question that is a material distinction and that's very true it has not been all signs on all beltline overpasses this could certainly be a legitimate place and manner restrictions because it would be clearly content neutral how do you deal with that we'll hear whether or not the ordinance is it still must be narrowly tailored and we look at the facts of the case in the at the record here and when we look at the facts of the case and the record here the ordinance applies twenty four hours a day seven days a week when you look at where that free speech is banned brit looking at public sidewalks which the supreme court just two terms ago reaffirmed that public sidewalks remain amongst one of the most valuable then use for the exchange of ideas because it's one of the few places ok maybe maybe we could focus this isn't really a case about content neutrality that was what was about this case is about fit and the application of the rest of the test for time place and manner restrictions in other words narrow channel airing the fit between the government's means and it's and you know the words the public safety justification that's been asserted here as well as the alternatives this speech that are left open you know those are the pressure points of this case so maybe we could get to those sure i think that the weinberg case is particularly instructive here like in weinberger the record focused on  just two self serving witnesses and their testimony that was rather scant which is the same as what we're looking at here and we're looking at the very scant testimony of defendant kalam and scott johnson who voted court has indicated that the first amendment restrictions can be based on a wide variety of evidence including anecdotal evidence and commonsense given that why i couldn't this ten own rely on the evidence the drivers were reporting safety problems to the police and that the layout of the area with those merging lanes rendered any further distractions more dangerous i think you know the lane three merging people are coming off people are coming on the keyword here is evidence and the defendant simply have not supplied evidence to that effect they supplied hearsay statement in the chief's affidavit but it really did not establish that there was any sort of public safety risk when you look at the actual evidence in the case what you have are conclusions by the defendants and no real evidence and that's why we're looking at that there is no empirical studies no real evidence that has been presented certainly not evidence that would rise to a finding that the defendant that purposeful speech in the form of vanity license plates for drivers and passengers to look at and receive the plaintive both plaintiffs in this case admitted to the testimony of an expert who went through the conclusions that were provided by the defendants and found that they were simply false he studied the area he studied i ninety and found that this is an area that is actually lightly traveled that's on the additional kendricks page two hundred two there's only four lanes in the slightly traveled area i ninety now of course that report was not even before the tell me one it provided the regulation was  and there's no evidence that any drivers were frightened the the only mentioning of anything by the defendants is that there was honking which pursuant to state law all drivers in wisconsin must have a horn in their car  considered dangerous well conking is considered a warning and that's why it's required to be in all of the vehicles in the state of wisconsin so i don't know honking at issue here has nothing to do with of course what i'm trying to figure out is if you are can are you denying that the townhead evidence a lot from drivers themselves who contacted the police department and from law enforcement who monitor traffic in the area both local and wisconsin state police are you denying that those are hearsay statements the defendants have not provided any sort of statements from any witnesses saying that other than defendant kalam and whose judgement is certainly questionable considering the facts in this case and also people tend to slow down when they see a police vehicle in the roadway also there  but his credibility is in question based on his tally atory activity that can't stand your clients and his criminal prosecution for that  we have no call logs we have no no really independent objective evidence that any complaints from me right all we have is his testimony yes sir proffer testimony in the form of an affidavit with his deposition taken it was taken your honor ok what did he say in deposition about these calls was he testified essentially the same as the way of specifics yes your honor so essentially the testimony was that he saw breaking but nothing that would arise that would rise to any sort of public safety issue what about the complaints that he says were made these are your say statements there are unverified complaints and defendants have not provided any other evidence that speaks to anyone who who saw something that was dangerous is what did he say was the source of his knowledge of those complaints he take the calls did that apartment in general take the calls what do we complaints when an actual expert in this field dr dorothy analyzed the affidavit and statements of calum and he said that defendant kalman simply overstates his case that there is any sort of public safety issue here and that's on the additional panix page to zero eight and he analyzed would any sort of signs on the overpass pose any sort of danger by diverting attention from the driver and he simply said that no viewing the activity on the overpass does not require a driver to divert attention to a point where vital roadway information would be compromised again the highway is an area where we receive information from sites all of the time the state of wisconsin itself agrees they have to sign carved into the town of campbell lake shore drive overpass and that's that's a sign that is approved by the state itself so certainly this is so dangerous that the state wisconsin itself would not condone such signs on the overpasses and so when you're a few that the signs that are on every expressway on almost waving songs homemade signs and that a both would equally distract drivers it is that that is your view well actually dr dorothy said that some billboards cause a greater distraction for drivers because the driver actually has to look after the side of the roadway and his visibility made actually be diverted in that case and looking at  ordinance also has one hundred foot rule and so it began speech not only on the public side way on the overpass but also within one hundred feet and defendants have offered simply no reason at all  what interest your clients have in that it seemed to me your strongest argument was the observation that there are two holes with hundred feet and that they couldn't quote signs on their front  but so far as i can see your clients don't own either of those homes to your own and if you have standing to challenge the overcast could you answer my question and then you can tell me why you think the answer isn't control sidewalk in new pirates to their demonstrations both on the overpasses and within a hundred feet on the public space so while they would not be actually protesting on that lawn certainly that argument that was off of the overpass and he there he filed an affidavit in this regard in the lower court and it's part of the court's record that he wanted to hold a demonstration for forty days for life and it was off the overpass that within one hundred feet and you the district court in their opinion said it was bothersome that the defendants could not articulate a basis for their one hundred foot restriction and that's in the short appendix twenty three well it's more than bothersome it's  had pulled over on the interstate in response to the protests before the town board when it approved the regulation or was that evidence that's been presented for the first time in this  litigation those photographs were part of the record were not before the town at the time the warden's was an acted there is case law that supports that the record supporting ordinance can be built through in the litigation process that cases deem for a number of scott johnson the town board chairman did observe traffic safety problems and at the september board meeting told he was a witness to these demonstrations  a traffic concern traffic slowing he received calls also from constituents complaining about traffic safety problems noise disturbances at the at the traffic at the overpass if you have any specific specifics did he offer about traffic hazard screen aided by these demonstrations the traffic slowing and breaking a lot of that came from chief couple but so it was second hand from coulomb and most of it was you know what did he know so we don't even know if he was a witness correct ok so you take back what you just said it two minutes ago that he was a witness correct ok so he's not a witness to any of these demonstrations he can't testify to anything of any value in the first amendment between august and jean where it is that is that gap january is the first time right but he made no record of complete calls of complaints the police department itself made no records of the calls of the supposed that complaints that were officer casper's another person in the police department ok but we have deposition testimony from him that he took complaint cos i don't believe he actually took this complaint calls but he talked to help and shortly after those calls so his knowledge comes from callum and to correct ok and that's not worth anything on the shoulder to know is what the basis of calamus knowledge is either he took the calls himself or there's some record some police department records from which he's offering his quarter of what three times as many four times as many bruises or similar protests temporary signs been hung out talking about the traffic this is this is of lightly traveled stretch of the interstate in a and it's rated l o s a which is the most lightly travelled rating that is that is correct regardless that if you look at the video of these protests it's it's evident that this is causing traffic save idio shows people honking their this isn't some open stretch of highway your sport of wisconsin where there's another a pass for there's no lanes merging traffic you have these are lanes for traffic merging into an exit ing from the interstate  isn't that correct that is correct you're out there you're literally the lane if you're going westbound the lane for traffic merging and i ninety s directly to your right below the overpass so the physical layout of the highway we believe justifies the nec and of the or it's and just so i i have it right cal men testified that he observed traffic slowing and braking in response to the protests in observed drivers pulling their vehicles to the side of the road to take photographs of all of this excuse me kellerman did observe a car slowing and braking  not or is it so that drivers were complaining of the need to slam on their brakes near or at the overpass in response to other e mails death threats other serious things that's when they tell me she started so there's a five month gap and a lot of the talk is about motives on the forecast if the ordinance or law is otherwise constitutional the mode of is if there is a relevance and board itself did this research now believe the board itself or the information was reported to the board and they made a reasoned decision with with their counsel to enact this ordinance to tailor it evidence it seems to me is limited to calum and testimony about these complaint phone calls and it's testimony out the channel traffic patterns and traffic hazards on th stretch of the interstate which has been severely called into question by the plaintiff's expert the confident isn't there enough here for a trial to resolve whether this is actually a dangerous stretch of interstate so that the traffic hazard concerns of the municipality are real as opposed to pretextual for speech suppression your honor i don't believe require some type of x reporter's plan of suggester some going evidentiary hearing to test the anecdotal foundation of your ordinance and it seems to me it's purely anecdotal i believe it's common sense that if you're going to displaying sky and even that requires some evidentiary testing we ha after the overpass protests and cars pulling over on the side of the road i think anyone can agree that a vehicle pulling over on the side of the interstate to observe protest r is a traffic safety often did that happen and at least two occasions officer casper observed one protest in december after the work it was and acted and saw pulled over homeowner stopped woman was already pulled over on the side of the road and created a report and asked her what she was doing and she said she was observing the protests there's forty perhaps from plaintiffs own witnesses and they admitted in their depositions yeah we saw cars all over the side of the roadway so i think is the biggest fact if you have people coming over to take sidewalk counselors in massachusetts could reach their intended audience for their speech even with the buffer zone in place and the court held that they could not