garfield heights ohio and its building commissioner william were the primary issue before the court is ordinance eleven forty point three six two and whether that ordinance is cont neutral or content based and if it's content neutral whether it represents a reasonable time place and manner restriction on speech a majority view for determining content neutrality which has been followed by the third fourth sixth seventh and ninth districts has been called the practical test which was adopted by this court in h g v greektown versus the city of detroit the minority view followed by the fifth eighth and eleventh circuits applies the more rigid absolute test because the district court followed the minority absolute is just rejected by the sixth circuit in greektown it should be reversed and judgment should be entered for the city of garfield heights on its counterclaim declaring the const the ordinance constitutional and so content neutrality is the threshold issue well what about the difference in the different treatment outside of the residential area are you saying it doesn't matter we think that the treatment outside the residential area is misunderstood was misunderstood by the district court and also in the arguments asserted by the police the reason for this position is that if you look at the commercial area statutes that they refer to they refer to  square feet and sign and so in those commercial areas the ordinance says separate sections you're allowed a single size single sign of that sign if it fits in that category a temporary ground or wall as opposed to the section eleven forty point three six one which deals with political signs while it is true that it restricts the size and height of political science to six square feet and no more than four feet tall there is not a single size limitation and so if you're not a singles a single sign limitation the single sign so you have  e then you can have many and how many is a flexible determination which is a good balancing test it's a reasonable test because you take the frontage of the property you multiply that by factor of one point three five and based upon the size of the lot it determines how many total square feet they syria a resident is allowed to have on the sign of political side a political  to have more you can have vote for smith vote for jones or vote for allen but you couldn't have a go cards go cab go hoosier right because the those would be limited to a single side we're talking about resident that's the impacting race in here if we're looking at it as apply challenge we're talking residential if we're looking at the facial challenge which we think the court also erred by a type of a certain size and being permitted to have multiple you're calling them political sides right that's the campaign and you're talking about right now and you're saying that even the frontage limitation applies to a commercial in a commercial setting that's correct ok that's eleven forty point two seven that's the corn and section i'm referring to and so in mr wagner's case as applied to him based upon his frontage it was determined that he can have over one hundred eighty one square feet of total maximum signage the face area not one size you know one sign that is six square feet what what's the justification i mean let's say you have somebody who says you know what thank you i don't care about twelve issues and i don't care about deleting but i'm not interested in looting my message i would like to be able to have one of those very big signs that express my view and then someone else says well that's nice but i don't have one major commercial view i have five different views and i'd like to be able to have five little signs and someone else comes along and says you know i'm a big sports fan and where does that put me because as far as i know i'm n about let's go back to the commercial somebody owns a store with store from who's a big sports fan what can that person do about sports fans and why does the city care what kind of sign it is well that goes to the intermediate scrutiny analysis that the supreme court set forth and were versus rock against racism it's a three part in the alice's that courts have for decades applied to reasonable size and height restrictions on but  i'm asking you but you seem to have different size and height restrictions based upon the content of the speech no not based upon the content of the speech and that's the very essence of the issue before the court the category of the speech is important and so merely because you need to look at a sign to determine if it is a political sign doesn't mean that it is content based that is called the inspector must read it rule which has been rejected by this court this city has a substantial government interest in the statics and traffic in safety that is clear under primedia vs city of in a certain sense on its face i would say it's not completely content neutral because political signs in residential areas are in fact treated more favorably that was why i was saying that you can have a series of political signs on your residential law each of which is small but collectively is many many square feet right that's the point you made the point that i had making but you could not have a series of nonpolitical side so in that sense there is a distinction but political signs are treated more favorably is that fair political science are treated more favorably at least in the residential out judge white was starting to raise the commercial areas and as i understand that and help me if you have a really really long building then you get a large square footage ability right because there's so many square feet per front foot but now if you want to have a really big wall sign in a commercial area fits within these limits does it matter what the wall sign says can it say vote for smith or buy beans or go in the commercial area the wall signs deal with commercial issues the political sign limitation of six square feet applies in both commercial and residential districts equally ok so so there there is a certain kind tent discrimination which is that you can have a very large sign on the side of your commercial building that says drink coors but you can't have a very large similar sign that says vote for coopers is not your honor i would submit it is not the content discrimination it is a size restriction that makes no preference to the content of the message is delayed a bit i just i just that way but i just ask you that and i thought you gave me a different answer i thought you just told me that if it were a political sign it would be limited to the six square feet i wasn't sure you were right but that was that's correct political signs under eleven forty point three six to apply in both residential and commercial districts there is no limitation that the only apply to presidential districts you're saying it doesn't discriminate based upon the the position take it but it well it lead to skin a it's based on the current it only prefers smaller political science although it doesn't say in the window or on the law and so at least my in my example and query by interpretation you've got a subsection of the point three six one says residen signs and then the political signs in point three six two and it talks about window or lawn right so it would seem that that wouldn't restrict a sign on the side of a building it's not in a room it's not in a window and it's not on the lawn because that's a residential section yeah that's why i was a little puzzled by your answers because you know as a layman reading this thing i thought the whole idea of restricting signage and size and so on was pretty much to preserve the aesthetics of residence districts and you've got these bigger limits in commercial areas so they say i  a remain a little puzzled are you are you sticking to the notion that i couldn't have a big political sign on a wall in a commercial building that otherwise met the standard that is not expressly prohibited by the statute mean you're allowed to have wall signs in commercial districts and it doesn't specifically say that if you have a wall sign it cannot be a political nature what and why has there not the issue before i understand it i mean that's that's your better argument that all of this is hypothetical and should be and as applied challenge some other day what is a ground sign does that mean like laid out horizontally on the grid it's typically mountain all poll on the on the ground or it's at a monument a foundation on the ground but but but that's different from my little yard solving the our yard sign is on the ground also that was why i was puzzled correct yeah i understand your designs to be your typical election signs that you're putting in the yard that are just sort of metal or something bigger a ground sign in a commercial district is allowed to be larger and it's considered for a business you may have a ground sign for best buy or or wal mart that is on you know main thoroughfare as opposed to a residential sign something almost close to a billboard it may be again within the restrictions a ground sign could be up to sixty five square feet in a commercial district but the city is  missions way up in brown sign shall mean anything excluding a billboard supported by uprights braces or base or stem of any material placed upon the ground and not attached to a building although if i if i were being really picky picky aren't all of these little yard signs ground sign i believe they do fall within that definition i don't think you're being picky i think you're just applying the deposition question is what is an upright brace or stem of any material which you might well think that the little metal thing is the typical sign you know to stick it in the ground for mayor would be ok recorded no that's a good point i had not read that definition like tell me the mean to me that as far as as your client and the residential areas go how is the content distinction unfavorable to the political sign it just seems to me that that it is nobody can have a sign as big as your sign political or nonpolitical and the proliferation issue favors political it's kind it's not content neutral to me but it's favorable to political signs were not what am i missing as far as that goes i understand what you're arguing in the residential dis right yes because i think if you look at the commercial district as judge might indicate you almost have the inverse pyramid of priorities that commercial signs are given preferential status over political science which also found that there was some potential content aspect even about dealing with the political signs because the limitation in point three sixty two indicates that it has to be removed after the period has expired it doesn't give a time limit for pows and the other signs it talks about you know if it's a religious sign or a sports sign it has to be removed when the relevant correct but if you put a sign saying you know go republicans go democrats unrelated to an election is there a time limit the case because the restriction on political signs actually indicate it has a distant requirement that it has to be removed after the event to event issue or didn't and you need to read the sign in order determine what's the approachability of the a bit has he been expired or not expired well but if you just if you just do the the read the sign you couldn't have an ordinance that says you know you have to take down inflatable santas by december twenty ninth and i don't know that any any cases i know of that would have made that unconstitutional at least not in the us not in the non absolute just circuits and h p v greektown which i do case because i think firstly the court needs to be recognize or consider is any issue even properly raised because in the ditch before the district court i mean this city even if it's reply brief a page twenty three basically says you know the disk record because it feels subjected to strict scrutiny without considering the holding in greektown problem is before the district court the city never even raised greektown never cited it once before the district court basically all they said before the district court was the city doesn't disagree with any particular political message vote for smith versus don't vote for smith and therefore it's content neutral so this whole argument that they've developed here before this court i think is really an issue that may have been waived by not preserving it billowed as this court and dima crisis or health care benefits plans versus during that four four eight fed thirty nine hundred said this court's function is to review the case presented to the district court rather than a better case fashioned after district court's unfavorable ruling and with respect to the group greektown decision i think that's what they're doing but even on the merits with respect to greektown i think this court needs to appreciate and i think that the controlling precedent for this court is not greek overrule prior panel without intervening supreme court precedent similarly a panel cannot overrule non bank decision without an intervening banker intervening supreme court decision there has been no intervening  bunker supreme court case to change the holding and ruling and pagan if you look at pagan because pagan again dealt with the it situation where the dressed that dealt with one of these were somebody who posed a for sale sign on their vehicle and it placed on the street the ordinance prohibited quote unquote any advertisement posted on of a god that was some division subdivision see of the organs at issue there any ever ties under their argument under greektown that would not be caught that would be content neutral because we don't care what the advertisement says it says for sale if it says you know joe the plumber so any advertisement in this court sitting on bunk said that was content based r the holding the supreme court it seven seven one of the opinion this court on bach stated the restriction on advertising does depend upon the content of the speech namely the ordinance draws a distinction between promotional speech and speech asserting belief or fact the supreme court has made clear that any regulation that requires reference to the content of speech to determine it's a place to build he is inherently content base so with all due respect to the dissident then the issue and of course that was a in a commercial speech context brecht and i really said i would agree with you that i would call this content based but then the question is does that end the issue and that's right but the circuit split was and  obviously an h g v greektown you know you you would have to read the science to tell the difference between the you know strip clubs and some other kinds and now i think the did the circuit split that's developed and i do know there's actually a pending petition before the supreme court on that issue the bells basically whether or not is and looking at the sign and having to read the sign enough to make it a content based you're not and i think pagan says that makes it a content based restriction and even with respect to  greektown if you look at greektown its whole premise and right relies upon a fourth circuit case that paraphrase the supreme court's case in hill versus colorado here versus colorado i think if you look at those facts demonstrates really when it does not become content big hill versus colorado dealt with basically a statute that prohibited within one hundred feet of a health care facility knowingly approaching somebody within eight feet that's the clinic which there's a case up before the supreme court what if it doesn't matter what if you have three identical ordinances and they are just simply divided into the type of sign for so that people who are looking for that information can find it that way so it says the ordinance one says advertising in a residential area can only be two by three and then ordinance two says sports signs or other non commercial speech can only be two by three and then there's another one that says political signs can only be two by three but where is you can only have one of the others you can have four of these so you have to look at the sign to know could correct correct and i would agree with you i don't think that one size limitation is uniform ok we don't have that in this case when you poll in the commercial projects well let me ask you this are you do you have any constitutional objection to the residential aspect of this case other than the fact that you have to take it down yes because even i think even under a you know if you consider under a intermediate scrutiny the evidence in the record clearly supports that the city did not satisfy its burden of meeting even intermediate screen if you proceed under a content neutral analysis of the burden for of what just define any reste the restriction upon first amendment speech rights the restriction meaning the size or the cut this one trying to find out what's what is in for with the residential restrictions other i understand you object to having to remove it what else in the in this in this case what we're dealing with is subject matter you know very good and i was going to say you know the court even in alvarez last year reiterated that it's not just the viewpoint of the messages on the board that is offensive it's also your ideas or subject matter but it is i mean correct me if i'm wrong is the whole this whole thing started because your guy wanted or did put up a sign that was too big i mean that's the challenge that we have here is he wants to put up a sign that is bigger than the size limitation for any kind of sign in his residential area that's what i'm asking is that your the basis of that objection to you saying that a uniform is what i'm trying to get at a uniform sign limitation it doesn't matter what the content is it just says any sign in a residential district cannot be larger than six feet yes even under the content neutral i think i premises that sometimes that is unconstitutional because the record evidence before the district court established that that not satisfy intermediate scrutiny that it was not merely tailored to serve this significant governmental interest that it did not actually advance the putative interest of us that it's in traffic safety because the evidence in the record basically we tendered on that it's interesting if you look at the plenary injunction stage chief judge oliver indicated that he thought this ordinance was content neutral and proceeded there so we presented the case as content neutral at summary judgment he said after further analysis he revisited that conclusion and i think correctly came that where you had proofs what were your proofs on this subject about its ineffectiveness its we offered three three expert testimony as expert witnesses jonathan walker  basically documents twenty one twenty two twenty three in the district court record mr walker address the aesthetic interest being claimed by the city flume address the traffic talked about the communicated aspects of the sign and it's with respect to these two by three or six square foot signs mystical or is basically and i summarize it in our brief basically said you know you have to have a size of a certain size that you can actually communicate your message i mean you get a size sign so small it's a looser disclaimer even communicating and here's a pin his professional opinion which is undisputed was that the two by three the six were put signs did not allow for meaningful communication of a message and explicitly if you start putting multiple signs out there well could you have constructed a sign that consists of twelve parts yes they actually argued before the district court  transcript but that you could actually take this four by four sign that our guy put up sol it and because they weren't physically connected that was for that was for signs and therefore you could do your message or you could do a bill drive down  disputed well you know the only evidence they put forth in terms of experts were lawyers who a pint on legal opinion that the statute of constitution which is not a proper subject although i guess a lot of at this level of scrutiny there are there are you know things that say you can apply common sense and so forth maybe some of maybe some of us have even put up political signs as to how visible they are ok but i think but again you know i mean you know we developed it in the record the summer and you can do that then don't you have a reasonable alternative you can say well you shouldn't have to but if that if it's that important to your client to get this message out then he then why didn't he just arrange a signs in the fashion that it actually that you cut it into a it's a new just amount and you just stack them you don't even have to do that you could this particular sign would be legit as just four signs one above the other a fraction of an inch  part right yes yes yeah i do do the math because he's four times too big all he has to do is come in under four feet so if he's four feet high six feet wide he would do that when i die which is what his si arbitrariness of the number that there is no would that it's not it's not actually advance the interest of the that x to limit it to six square feet if i can do this little gamesmanship it does not actually advance any significant call but that's with the with the might say political favoritism overlay that is i take it the city's position here is kind of you know look we like aesthetics but we know that politics is important the first amendment is important so we're going to give you some leeway on political signs now that is content based in my view because you can't say you know read emily dickinson in quite the same way but i'm not sure that makes it unconstitutional that's really the issue is is that kind of content based on this unconstitutional but i would argue and i know that is that even if you under the content neutral sense does that actually advance demonstrate that it advances these government and when you look at the reports when you look at the photographs and we put a feel them in our briefs it's cluttered when you have all these signs versus the single sign and then the reports say that undermines traffic safety because people are more focused on it than that so i don't record everything supporting  have your three minutes for rebuttal thank you your honor in miller michigan state bell c e o versus miller this court held that the use of subject based categories does not automatically render an ordinance content based and in brown versus carrie and other case the distinction is whether or not there's a sense or real intent along with the subject matter a yes it was a city council woman who reported it inspector went over but when he said i'm a sign i want a letter about this sign he didn't say you can't say that don't say he's going to say the city the city didn't have and i'm sure she was in disagreement with a message which is what free speech is all about she has the right to disagree but the point is he was not told to remove the sign he said please conform the sa the sign to the reasonable size restrictions and so there was no meaningful preference for one type of political speech over another or for political speech versus a different type of speech it was just a size and height restriction and in midwest media verses earl is no need for the city to prove that traffic safety actually motivated the enactment of this statute the purpose of the intent or set forth that sufficient so this issue about a statics in the expert witness is completely irrelevant because whether or not there are experts thinks it's ecstatically pleasing it's very clear in the president before this court that size and height restrictions may regulate only the non expressive components of the si and that is what we have here and in the cases that when something is so small it isn't expressive at all well then i would say that that might be going too far in the balance but this particular size sign he didn't even consider other alternatives that he had available to him so there are cases that brown versus kerry where was a five square foot sign that was upheld or maybe a six square foot so who's to say i mean actually when you think about it you're talking about two feet by three feet right and that's effective for a name but if you have any message that you want to get get out that's not a really effective  to do it well again you can use multiple signs and it's a question of ample alternatives under the third prong of the intermediate scrutiny test in fact there's a case on point on that issue your honor  versus baltimore the district court in maryland in two thousand and ten found that the ability to post multiple smaller signs was ample while trying to channel of communication it's on point with this case the record at page id nine thirty six nine thirty seven indicates that mr wagner indicated during his deposition that he never even considered the alternative of using and altering to take it down i mean why should you have to take it down because it's exceeds the reasonable time place and manner restrictions that have been imposed by the city council but why is it reasonable why can't you it's reasonable under the reagan for president if it's meaningful to you what difference does it make the city has a substantial government interest in statics and traffic safety they have to have some regulate this and you're going to put another one out tomorrow it doesn't to keep the sign up for a longer period of time but we said no the purpose is been fulfilled you must take it down today cool who gets to decide if the purpose is been fulfilled what if a city council would come in and say that we think the p fulfillment don't tell someone hypothetically to take it down they would have the right to deny you have you presumably have some kind of city code in the city council doesn't have to do it itself if it says you know repeal dred scott  ok well why should you have to take that sign down if you don't necessarily need to you're on if if it's an issue that is a political issue that you feel strongly about and it's still something that goes on there's nothing in the or in this it would make you take it down because the purpose has never been fulfilled so if you're saying sell the post office you can keep that up forever because the government hasn't sold the post office yes or ok anything else on that all right thank you the case will be submitted the