finish construction of its billboard and it also aired by granting the city's injunction despite the city's unclean hands based on the erroneous proposition that the sign ordinance was presumptively constitutional i'd like to address three issues today first of all we think this case presents a unique set of facts in the post and pre read for city of appeals were the first amendment context of the first issue is that strict scrutiny applies here to the city sign ordinance because of the unique facts which are there is an off premises ban and exemptions which in our view are clearly content based but what we have here is a proposed digital billboard with rotating messages every eight seconds this is not a static commercial billboard that  we've seen for years in this country thirty eight percent of which historically you have to pass put as noncommercial speech we are aware of no circuit court would have ruled on the set of facts which we believe result in strict scrutiny and we don't believe that the justification for the sign code which is a statics can sustain that scrutiny second the court below urged by relying on an indiana case for the proposition that the sign ordinances presumptively constitutional because of the content based nature of the ban over the restrictions it is presumptively unconstitutional under federal law the city did not even try to satisfy its burden before the district court in the last week because the  cannot satisfy its burden the entire ordinance should be stricken which would then allow gav to finish the construction is intended to complete on december sixteenth twenty seventeen so the first position is that  op first of all this is a content based restriction you have an opera mr span and then multiple exemptions the off premises content basically you have to look at the sign to determine whether it advertises on premises for off premises and there's testimony from m sign content and the same is true for the exemptions mr skelton said as it relates to the example of exemptions the question was the only way to tell or is the only way to tell which exemption applies is to look at the content of the sign correct he then went and read the exemptions and then said at least some of them yes so clearly even the exemptions require a reading of the ordinance content which in our judgment then renders the ordinance assign s unconstitutional places a burden on the city to it's constitutional so the city or excuse first of all that read is limited to noncommercial speech but even if we don't get there it's our position that it's not so limited that the city says well this is commercial speech well ignores the fact that we have historically and of and it's undisputed in the record in tend to in the future of put up thirty eight percent noncommercial speech and sixty two percent commercial speech that's well more than  minimus amount of noncommercial speech we don't have anymore and this is where we think the case is haven't quite caught up we don't have a gentleman or lady climbing up a seventy five foot pole with vinyl and like we saw on the epping in missouri case where you put the vinyl on and and you might change it once a month from eat mcdonald's to the burger king to some political sign that's not what we have anymore so what the city it with broad brush say what's commercial because you are receiving money for your advertisements well that also doesn't hold most or because the long line of spin court cases with the story that new york times worse a solvent says just because we are a commercial entity we are a conduit for other people's commercial and noncommercial speech so we get those protections so what we have now is we have gaffed who can sit at a desk and and lo digital data that changes every eight seconds is not to send it up sign it cetera so conceptually you could have an hour where there's one hundred percent commercial speech you can have an hour where there's one hundred percent noncommercial speech or more realistically you're going to have a mix of all injunction on the basis of our suppose it unclean hands and then granting the cities because of the the ordinances presumptively constitutional i think we'll have to break that down a little bit because our unclean hands in the judge's view were we intentionally violated a valid ordinance well the ordinance in our judgment was invalid because it's presumptively unconstitutional but but more critical from an for to hold us  being unable to get an injunction and and what we're asking for was don't arrest this let me go out and finish the sign the court said you have unclean hands well we we didn't first of all because all they were doing was nonviolent civil disobedience secondly the court didn't find the nexus between our unclean hands and the first amendment issue so we were prohibited from exercising our first me case of from this court said that the unclean hands in that context that would prevent an injunction for somebody in our shoes would be if we somehow prevented somebody else from exercising their first amendment rights there has to be that nex in order for any of our conduct to constitute unclean hands right that all all of that right is not about reading not about content based or so russians or anything like that right right and i maybe i misread it but i just read judge bra to be saying look the temperature got turned up really high in the situation of people with arrest threats and everything else going on so she just held the status quo in place right but she did not get into the merits of purposes of ruling upon motions for you know either temporary or pro marriage injunctive relief or not for purposes of finally resolving the claims for all purposes in the litigation that is correct what she did but  she did she did so on the basis of the statute being presumptively constitutional on an indiana case which had no first amendment issues at no constitutional issue should that matter it was a it was an accident case where an ice cream truck hit a kid and the question was whether the local regulations dealing with lights on ice cream trucks conflicted with the state ones had nothing to do with it federal law says two things first amendment rights are so critical that if there is some oppression we should have to wait in this instance sixteen months to go to be able to exercise them it is a critical issue and so had the court apply the right standard and said well gee these are presumptively unconstitutional it was incumbent on the city to then come in and say wait a minute i if the regulating in an area that affects speech we don't our our first step is a legal matter is not to presume that legislatures or or you know local communities act  unconstitutional i guess and i've been in a very respectful says i'm not sure why i can't go if it's if i get to use my property if i'm gaffed however i want to use my property unless it's been lawfully restrained do it and i especially when it comes to the first amendment do i have to wait sixteen eighteen two years ago to vindicate my rights when that the this is clearly a content based statute which by law says it's presumptively unconstitutional so it's void i mean that's the i mean  i appreciate that but this city this court or this country has had a long history of nonviolent civil disobedience ignoring laws where people ignore laws to their peril and guess cept i'll pay the fines the city had they could find us they could seek an injunction what they couldn't do was arrest us and that's what they did and so civil disobedience a rescue part and they did a risk they did not but they got all the way to the point of the arrest where but who said they were going to res so your honor i think the there's a few reasons why we think we should get to the constitution the constitutional issue one is because it's a person an issue and this has been sixteen months or longer we have not been able to exercise our free speech rights on what we believe is  unconstitutional ordinance and we believe that under the authority we've cited this court has the ability to get to the merits of that issue as we go back down below and we're going to another sixteen eighteen months and back up here the whole time we believe on december sixteenth twenty seventeen we have the right to erect a billboard even if some days later the court said take it down because the court the city clearly had unclean hands by taking an action that they were not authorized to do threatening arrest with police on premises preventing us from finishing well you've stretched that to the point police on the premises of a have be a police officer there and you know you have somebody who is a contractor not a really employee or officer of the arrested you're going to get arrested and you're going to jail if you don't stop this construction that's not something to be dismissed respectfully on the receiving end of that when we know because we looked at it they have no ability to arrest us and by the way they had almost thirty days but we did this case the way we did it because gaffed has sued the city minneapolis before we didn't put a billboard in the ground the court said yeah it's unconstitutional but the city changed their members in the meantime and after you get damages we don't want damages we want to be able to speak so in this situation we said we're going to put the stick in the ground because that's what judge why don't you just try to get the challenging excuse me why didn't you take some other action other than physical to civil disobedience because it would be futile up in westville of me and you can look at all cities don't voluntarily agree to put legislation or more off premises billboards they just don't i mean it's futile similar to us having to go try to get a variance we've we try to get variances you get shut down every time this is not a popular community mode of speech but it is a protected mode of speech so as it relates to the to the constitutional question the city of troy case we think is instructive that case went through the analysis that we did which is it's content based yes which standard of review to apply strict scrutiny for content or intermediate scrutiny the court declined to extend read versus city of gilbert to commercial speech but did then say this is a unique situation because it was a digital billboard but in that situation the proprietor of the billboard only said that i would put one of thirty two screen flips as noncommercial the court said that's the minimum  therefore we're going to treat it like commercial speech in this case if we take the same approach we will have washed thirty two percent or thirty eight percent of noncommercial speech which is much more than de minimus so we believe that even if a court does not apply read to commercial speech that under the city of detroit case and the logic from that case that when you have a material amount of noncommercial speech on a constantly rotating billboard that strict scrutiny stood apply because you want to premises is out in that then the exemptions are out the whole ordinance has to go out because what you are left with is political signs are allowed in westfield without a permit there in the exemption section if the exemption section is gone in the city of westfield i can get on premises commercial sign i get an offer from says commercial sign i have to go get a variance to put up a political sign that is unacceptable under any cases that have discussed elevated commercial speech over noncommercial speech so in that situation even though there is a safe house that the courts in indiana have said you still the court must still determine the legislative intent in this situation we find it hard to fifteen thank you thank you  have please the court the district court made a very simple and very commonsense ruling it ruled only that guest was not entitled to the preliminary relief its side because it came to court with unclean hands it decided that guest having filed this lawsuit and having asked the district court to rule could not unilaterally decide that the city's uniform development ordinance both of the provisions relating to location improvement permits or building permits and the provisions relating to sign permits were in a political or void and proceed to go about its business as if the you do you know did not even exist in some the district did not like the fact that guest after having fired this lawsuit refused to allow the lawsuit to take its course and wait for the district court to rule the district court never reached the first amendment issues and it's important to understand why and how the the district court never got to those first amendment issues the district court had two motions before it and it took up gets the motion first in its ruling in addressing guests motion t based soley on the violation of its due process rights so then the district court looked at the facts surrounding gaps conduct it found that get decided that it did not have to apply for a location improvement permit it decided get or they get decided that it didn't have to comply with the city's stop work notices the district court recognized that get decided it could disregard the letters the city sent to regarding the ordinance violations and g  cited it could move forward to complete the construction of this electronic poll site without waiting for the district court to rule the district court determined that it was not forget after to decide the  constitutionally of the audio because that decision was for the court in due course in its ruling the district court observed that ordinances are presumptively valid intil a court and that's a key word in the district court's ruling until a court has determined the ordinance to be in a political or otherwise unconstitutional what guest has done here in connection with this appeal is get grasped the hold of that one sentence in the district court's ruling and misconstrues it by arguing that the district court applied the wrong legal standard that the district court was not to apply a presumption of constitutionality but rather a presumption of unconstitutionality the thing that guest is missing and the point at the district court the district court as i mentioned using the word court was saying that all persons including corporate persons like gatt they must presume that ordinances are valid and that they cannot go about of voiding them or violating them as they please the the key here is that the district court didn't say it was making any presumptions about the u t you know at that point it just said they could get up couldn't make the presumption that it was unconstitutional and that guest was not entitle to the preliminary relief that it wanted in till the district even if read versus the town of gilbert might cause some ordinances or at least parts of them to be stricken as unconstitutional it didn't hold that persons including corporate persons can unilaterally declare ordinances to be unconstitutional and do whatever they want in essence re didn't sanction lawlessness now having made the decision that gift was not entitled to the preliminary relief it wanted the city's motion at that point was basically moot it was moot in the sense that the district court didn't have to take up the city's motion because the practical effect of denying gaps notion was to give the city what it wanted which was essentially the status quo to preclude get from moving forward to complete the construction of this electronic billboard pending the outcome of the lawsuit and i think the fact that the district court recognized at that point it wasn't necessary to take up the city's motion at that point is revealed by this language in its order and i want to just kind of quote this and pointed out to you it said in light of the court's ruling on gaps motion the court grants westfield's motion a restraining order to the extent that it requests an order prohibiting gaffed from continuing any work on the pole and digital sign until after the court rules on the constitutionality of the u t oh and resolves the litigation on its merits and i think what's important about that sentence that i just quoted out of the district court's ruling are the words in light of and to the extent by using those words the district court clearly signaled that its grant of the city's motion was simply the necessary corollary or result of its denial of guest motion so the district court didn't reach the first amendment issues because its ruling didn't require it to do so and accordingly the district court did not care when it didn't reach the first amendment issue hughes the district court said it would reach those issues later in connection with its ruling on the merits and this court should allow it to do so there is no need for this court to decide this issues now and it should not except it gets invitation to leapfrog to the constitutional issues before the district court has an opportunity to address them first even if the district procedural due process ground it wasn't entitle to that get claimed that it had a right to notice and an opportunity to be heard before being told it couldn't put up the billboard it its basis for that procedural due process claim is that there were the stop work notices that were posted on this pool and on the no trespassing signs didn't strictly comply with the u t ozone provisions even if that is true if the law is well established that a governmental entities failure to strictly comply with its own procedures doesn't make out of federal due process claim it's other argument was based on a substantive due process issue gets to once this court or at one of the district court to find that on this saturday morning when the representatives of the gapped were out there proceeding to put up this electronic billboard even though they had been issued stop or notices the city attorney comes up and there's two men that essentially get into a disagreement out on the side of the road on a cold saturday morning in december gaffed wants to say that when the city attorney to hold gapped and guess representatives that if they proceeded to put up this billboard they'd be arrested that that was so shocking to the conscious that it's the type of offense that it creates a constitutional offense it's our position that it just doesn't when this court looks at the long line of cases that talk about substantive procedural d process and the kinds of cases that the conduct a shot into the conscious to implicate the constitution we're talking about the seminal case of broken where police officers took a guy to a hospital and had his stomach  forcibly punched pumped we're not talking about a disagreement between two strong headed men on the side of the street and to the extent that guest is claiming that there was this threat of arrest gets own filings in this case nobody could have predicted that the city attorney would have made this threat of arrest this was something that was sudden unexpected in the heat of the moment it wasn't the kind of thing that the city could have reasonably anticipated and provided with a notice and an opportunity to be heard this is the kind of random unauthorized conduct that if there is any kind of tortious situation here this is something that deft can address after the fact this is not something where was entitle to notice an opportunity to be heard so even had the district court moved on to the merits of gaps preliminary injunction we believe it still would have failed now have in our brief addressed some of the first amendment issues solely because that's what did they brought these first amendment actions to the court but it's our position that those first amendment issues  resolved by the district court at this point it's our position that the record on severance is not yet fully established and so that it would be even if this court were to entertain the first amendment issues and again it's our position that it's premature and this court should not it should let the district court do its work even if the court should go onto those first amendment issues and even if it should find that some provisions of the sign ordinance are content based this court cannot decide whether those provisions cause the entire uniform development ordinance to fail or the entire portion of the signed ordinance to fail because the argument the record the issues are just not yet developed in the district court of the city of westfield respectfully asks this court to affirm the district court's ruling and if and when the time time for this court to take up the first amendment issues it will be better position to do so on another day but it is not today thank you you thank you old address a couple of issues that i may be quick if what i understand that the consequence of the district court's order is already by the city is if i want to if i believe that i am being oppressed in my speech because of the content based provision in the law says the federal law says it is presumptively unconstitutional then my civil disobedience now has to be filing and then place the burden on the city which has the remedies under the u dio to come in and stop me if they want to fine me if they want to how do they stop you get an injunction which is i was at stop part well then it then it's then i'm of a court order it you know it's there's a lot of examples of that in the civil rights movement dr martin luther king at one point was subject to an injunction not to pass over a bridge he stopped at the bridge not because he thought that undeniably have a right to hold a parade in the city of chicago on an important matter to celebrate something but you know what i'm not going to go to city hall to get a permit forget it i might my first amendment right as is clear as a bell well and you know the local law requires me to get a permit but forget it the first amendment's clear enough i'm not bothering with fact well again if i don't know what chicago's ordinances are but if chicago's organized make any difference what they are you should take any city you want right w an i respectfully believe that the civil disobedience must then be to force companies to go file civil litigation and wait the period of time do you guys you guys never even sought a permit we didn't after according to what according to the fact that it's a signed permit which is part of a fundamentally invalid and void ordinance because it's content based there is all there's myriad how does this who says it is we did in your case we do you do futile and it was an required i mean there's a lot of reason required it may eventually be a situation where you are correct about that not an issue we told the city as i went out december the sixteenth and said hey here we are with putting up a sign we sued them after we put a sign in the ground because that was the consequence of the gaffer's that indianapolis case we had divest ourselves then we told them they were to go do this in the next thirty days i don't know what else i could have done for while but then my first memorize aquash for sixteen months yet you know we have a judicial system and that's kind of the way it works in that but i believe the burden is on the city in and presumptively unconstitutional ordinance to come forth and stop me not for me to stop myself because they've already stopped me by their unconstitutional ordinance i guess as we'll find out when you're on this case i'm not the judge to arrest somebody to go and threaten somebody with the rest without consequence that's a law on the southern district of indiana when nobody disputes that there was no authority to race and upon the district court's opinion here was sure i mean because there was no th was clearly unclean hands from the city by threatening to arrest i think that was i'm really surprised judge brack well i that's the consequence of the ruling i think i see my time's up thank you thank you thanks to both coun