place because this appeal involves a noise ordinance and whether it is constitutional under the st amendment i want to start off with a reference point when you go home at night and sit down at the dinner table and have that conversation that ordinary conversation how was your day the sound level of that ordinary conversation is sixty to sixty five deci that is the same sound level that the town wants to impose at the property line of a sound producing property without respect to whether there is a recipient of that so there are two means of regulation in the st amendment that signal potential likely violations of the st amendment content based regulation and prior restraint ordinance one hundred and sixteen has both the presence of specifically treats sound differently based upon its expressive content by requirements is not correct i mean how can it is it regulated based on whether or not it is a live performance or not but not the type of performance you could have a shakespeare production you could have a political speech you could have a live musical performance you could have a one person comedy show all of those get treated the same no matter what the content of the speeches is that not correct not is not correct under a three only outside live musical performance is subject to the prior restraint of either outdoor venue or approval or special permit scheme other sound all of those others expressions that you mention that create sound any of those can be engaged in with out getting the town's permission in advance and that it is the unequal application with respect to sound which makes it content based as the supreme court said in city of cincinnati discovery network a sound ordinance is permissible when it applies to music political speech advertising because all those makes and so as the town attempted to enforce this ordinance the town has not specifically enforced for a period of two years in that application the town interpreted that ordinance in such a manner that was unsupported by the text of the noise ordinance when we pointed that out the town then you don't have the same argument with that particular ordinance as far as content by the store prior restraint do you know we do not ok and so the i think we're on totally different grounds with regard to the court's ruling on that as we are with the new ordinance talking about the new ordinance do you have any concerns about the issue not being right for consideration has the town evidence to its intention to enforce the ordinance or has it has it taken any steps to say we're not going to enforce it or anything like that the town is taking the step of saying well outside of this record it has but that's outside of this arrest not an issue this was r argument at all is that correct that is correct ok so even if if we decided that the district court may be it was correct on its initial ruling with regard to the content based consideration of that ordinance would it be necessary for us to send it back to the district court and request the district court to consider the prior restraint argument that you made in the make findings with regard to that yes it would just didn't address it they didn't present any evidence that it wasn't that the regulations were reasonable narrowly tailored i'm sorry narrowly drawn and  that your view as a nation that their evidence didn't show that but i argued it certainly to the district court yes or ok thank you bench not issues that you know please go ahead is there any evidence in the record about why live music is being treated differently from other types of sound  i think there is some basis to treat live music differently than other types of sound but once again you have to analyze that under strict scrutiny because there's no evidence in this record supporting that means that town took in regulating sound regulating live musical performances specifically did not i'm sorry there's no evidence in this record that that the town  i'm talking specifically about whether in determining whether or not this is content based if there was something about the quality of the sound that had nothing to do with the fact it was music as opposed to political speech that's what i'm trying to get at so is there any evidence in the it had nothing to do with the quality of sound which i think was certainly an issue in in the ward case and it could be the case that live music is different more difficult to control because you're dealing with a live performer is there anything like that in the record there is there is testimony the only testimony that differentiates live music from say recorded music is that live music cannot be put through a limiter so for example if you could control all of my sound and put it into this microphone you could have a limiter that would compress that sound so that you wouldn't be able to violate the sound equipment but my sound makes  voice makes noise that doesn't get put into this and so does a live drum or brass or any other kind of instrument and that's the only difference between live musical performance and recorded musical perform does in a sense because for residential property owners your son could have his band play in the garage of your home he doesn't have to get a permanent advance why does a commercial property owner have to get that permanent advance because a commercial property is not going to have a kid playing a band playing instruments in a garage what about the circumstance of a restaurant that has a patio with an acoustical performer is no that's a normal circumstance and that would require the prior rule of the town in commercial zones or nonresidential zones sound is less of a concern but it can't it can't be right that every single permit ing ordinance constitutes a prior restraint there are requirements for example to get permits to conduct a demonstration on public thoroughfares not all of those are prior restraints they can be but they're not categorically so what is it about this permitting process that in your opinion constitutes or makes it a prior restraint i think all of those processes are prior restraints the question is whether they're unlawful prior restraints and prior restraint or presumptively unconstitutional rect and permitting schemes get up held all the time but but you can show that they are constitutional but by showing that your regulations your permanent regulations are reasonable narrowly drawn and objective but when you have permit in regulations that use such words as you need to minimize sound here or not withstanding the fact that you have a noise ordinance the permit official impose sound restrictions more restrictive than the noise ordinance at that point these regulations are not grounded in something objective but objective and they've gone beyond what the town has already considered to be the balance of interest between proper private property rights and sound as a nuisance is was your argument with regards to the different parts of the ordinance in the district court facial  applied facial with respect to most of it there's kind of a unique circumstance with respect to the applied because they are applying ordinance one upon their prior misinterpretation of the no no no but that's not the way as applied goes as applied is not the way they're doing it it's as applied to you yes so my question to you is when you challenge the different  the ordinance in the scheme in the district court whether whether you challenged it on prior restraint or content based grounds was your challenge facial as applied or both a the plaintiffs says this statute says x y and z it may be ok on its face but as applied to me when i engage in act a that statute is unconstitutional so using that as an analogy what did you say was being applied unconstitutionally to you based on your purported conduct ok the town st of all the sound standard that was applied through it special permit in process from two thousand and fourteen to two thousand and sixteen was fifty five d b a over a three minute allocute which is average of sound over three minutes at the receiving property line now at some point that changed to seventy five d b a at our at a at a point at a measuring point on our property that was inside the property line that is where the town came up with the  term surrounding upline property line in the noise in its amendment of the noise ordinance those two things were applied consistently and what that application showed is we can meet fifty five dollars at the property line and we can meet the application of the old instantaneous down standard over there also we can meet all of those standards but the town specifically adopted this new peak standard because they knew we could not meet it they admitted this they said they had a solution for it they did not adopt that solution when they adopted ordinance one the peak measurement as their expert testified in one piece of three minute music can give you forty three thousand violations this w the peak standard was not adopted to regulate excessive sound it was adopted to find violations to control content absolutely bullet because again you're over your time and oh if if the town was to change their ordinance to be not only musical performances but all performances then that would eliminate content based new ordinance was was invalid unconstitutional and they went back to the ordinance that they're applying against you now your center arguments would still be there your arguments about how they're controlling you under the old ordinance but that was a decision that was not made under strict scrutiny by the district court improperly not made under strict scrutiny is that correct i'm not sure i understand the specific question the the if we completely call complied with the old noise ordinance that's our position ok so it didn't need to be analyzed under any oh you'd be fine yes ok is subsection in your opinion is subsection a one content based it is not it regulates sound during the night time equally for everybody or every with regard to a sound uplift amplification device or other sort of machine  we're dealing with day time we're dealing with a time to write right i just wanted to get your thoughts on anyone ok mr fink thank you very much and give your time for request entry of a temporary injunction on an emergency basis requiring the town to monitor harborside compliance with the town's exterior sound ordinance by measuring exterior sands created by harborside at the water's edge residential property line as it is done throughout two thousand and fifteen and prohibiting to town from interfering with harborside regularly scheduled free public programming through physical force or threats or that anything be found unconstitutional that there is no argument that there was a prior restraint that there was any treatment all they wanted with this temporary injunction was for the court to change the ordinance ordinance thirteen point eight six a outdoor amplified sound is limited to sixty decibels during the day and it makes you sound table what you go to table one and that's were all outdoor amplified sound is measured throughout the test now what happened here in this case or before you get to that year the district court understood harbor side's motion for an injunction as including at least some constitutional claims so i'm reading from page two of it's order this there's no question about that but i guess it passes the other question here that they ask in their brief that this denial be reversed but no where do they say what it is the court should have done is it without question or do you legitimately question the fact as to whether or not this ordinance is content maced you know i agree with the district court that it's content neutral you d ok and the reason i say that is what i was going to say is number eighty one thousand three hundred and eighty six a talks about outdoor amplified sound you have three s three different scenarios here and ten jupiter you have noise just noise then you have amplified noise you have indoor amplified noise and that's in thirteen eighty five then you have excuse me outdoor amplified noise recognize and this just started in two thousand and ten with the indication to the establishment of want to buy it as a street if you want to have an outdoor venue which means you want to have an outdoor stage and you're going to play music primarily live music outdoors we're going to let you do that if you follow these regulations and we're going to assign initially sixty and now by virtue of the men that increase to sixty five decibels always always measured at your property line as the quote district court pointed out that really wasn't change the only thing that was changed about it was the adding the word up and that was not ambiguous so this particular exception to the normal thing was added to give them some benefits if they didn't want that benefit they didn't have to council if y of subsection bay below or obtain special permits pursuit chapter twenty seven dollars article for entitle special permits for art isn't that the basis for your opposing counsel arguing political performances arguments that might be brought on by law students that were there making moot court arguments that were live did you restrict those during the day when they were amplified did you restrict  comedy performances did you restrict anything else in such a manner as to require that they meet the outdoor venue regulations of subsection bay below or paying special permits did you do that with your ordinance special performances also have to comply with that sign restriction yes or is it it depends upon what you're presenting so it's just a misunderstanding that not only is live musical performances required to do that what you're saying that all performances everything that slav everything that they are is required to go into the same restrictions with regard to sound where it's measured the manner in which it's measured in the level to which you cannot exceed well and again your point to my point is that the outdoor venue is a special category and before the amendment in june of and sixteen it didn't say live music ok it just said that but recognizing that what we have for this outdoor venue category is essentially live music and it doesn't say that we want to add it in there other ones don't come into that because they're not outdoor venues and he i think judge kugler started out by asking you on a different question about or whether or not this was content based your your position i take it is that if a long statute or ordinance regulates only one category of speech but is not based on the content within that category it is not a content based restriction is that right this career as is and that really turning content base into viewpoint based made there's nothing in the ordinance which talks about the type of music that is doing it's a recognition that music just like it it's amplified sound i mean and what you also have to recognize is that with the ordinance was amended outdoor venue is that is defined and it is defined in that change the minute included live music could you could you limit could you changed a three to talk about outside live political expression constitutionally no hi is this any different well because this is just sound we're only regulating sound the in my hypothetical you just regulating the sound but the sound of political expression no you're regulating the sound of like musical performances why is one content base and not the other because it's busey is the sound it's not the type of music this being played political speech is a sound it's not the type of political speech being expressed right the outdoor venue presented a specific type of situation where the live music recorded music it is outdoor venue they play movies too and they play they have speeches they have classes and stuff like that all of that is the particular thing falls within it it is not just live music it covers a variety of different things that are going to be presented at that and it's a recognition that this type of thing so close to the residential area where a substantial interest in doing it and certainly a wealth of complaints about the noise level there needs to is in the substantial this is a town to recognize and to regulate council council yes or i have personal preference in the kind of music that i like you know that character yeah i guess is probably old hard rock from back my days as i'm older i don't particularly care for rap music it's not my taste but this ordinance with the requirement that a permit have to be obtained doesn't it enable the town to prior to to review prior to performance and pick what kinds of music maybe they despise rahm and i there's other kinds of music out there maybe maybe they don't like a christian group that's going to play maybe they don't like some other group the scope like isn't that the problem with prior restraint the reason why we have to be so cautious when we allow just a blanket kind of a restriction and the district court apparently did not did not go through any kind of analysis on the prior restraint but isn't that part of the problem that we have with this ordinance i agree with you that prior restraint is a lawful i don't think this organ requires that and the reason i say that is because if you don't want an outdoor venue there you can go out there and have a guitar player and whenever you do it the requirements in here all relate to the level of sense none of them relate to what kind of music are you going to play whether you're going to have amplified sound of a political speech or that nature all they talk about is ink i think would judge coolers trying to ask you he corrected me if i'm wrong is that if you don't meet the outdoor venue requirements then you have to get a special permit right if you want to go to the above the yes sound levels and by getting a special permit i think his question is asking whether or not you are putting in the hands of the government the decision about whether or not to favor one kind of musical expression over another by granting the government the ability to grant or deny special permits when they're we have experience and the record is replete with that one hundred and fifty dollars special permits were granted your two thousand and fifteen not a one of them told them that they couldn't play a certain type of music or not ok so we had that experience as applied they wanted to go back there what happened during the year two thousand and fifteen through two thousand and sixteen is because they had not achieved their certification as that outdoor venue they hadn't met those requirements to in order to so the town took the extra step of going say well ordinarily you could only entitle to forty special permits a year but we'll give you more and they ended up giving one one hundred and fifty dollars special permits each time they applied for it they asked you know what they wanted to do and the town said here's the conditions of the permit exactly what do you wont to do that's the question that your town was asking and that's where i have a problem with it why didn't the district court address that question because the district court didn't find it found to be content for a neutral didn't find a prior restraint because the town as he said the town's actions were reasonable in this situation he addressed that he just said it was reasonable as an alternative to allow them to do this rather than doing nothing else from the very outset of this case they wanted it is a part of their development approval they wanted to have an outdoor venue it goes back to two thousand and thirteen at that point in time they received at approval of they just had to meet the requirements which dealt with  sound and they just never wanted to do that and so no matter what they played and town didn't care what they played it's only that the sound level was not meeting the town code it they say that  public safety nature but you know as far as the sound level it simply says seventy five b b is that property ladder fifty five b b there that probably line it doesn't say you can't play country music and in fact there was a country music concert there were all kinds if i may judge your now i want to go back to a question judge your glorious you so are you saying that an outside live comedy performance in a nonresidential establishment would have to really meet the same requirements either be an subsection three that refers to outside live musical performances or an outside live comedy performance associated with a nonresidential establishment would it be required to either be an outdoor venue or get a special perm do as far as the level of sound if you want to go to a higher level of sound than you get to meet these requirements it doesn't matter what you're doing it's whether the level of sound is involved the level of sound under subjection a one is sixty d b at a mix you sound is fifty five dollars in a residential and they changed it to mix residence mix use without residential and residential and change that so recognizing the fact you see harborside requote requested an amendment to this order is on two occasions both of which they drew and those two occasions they say they essentially asked exactly what they asked for in the temporary injunction motion they wanted to change the location and they wanted change the measure and it didn't really matter what they were playing here there whether it was a comedy show and or stand your argument thank you ok right if you tap you very much as robert it your feet before you start let me ask you a question as when a motion for a preliminary injunction can always be narrower than the complaint that's filed before it and so my question to you is when you move for inju relief what constitutional theories did you assert everything that was in the complaint or was the motion for preliminary injunctive relief narrower in scope and in claimed than the complaint well it was certainly in other words you may have and i'm not saying this is this case but you may have a case where someone argues this ordinance is content based unconstitutional on that ground this ordinance is a prior restraint unconstitutional neg round but then you move for polygamy ery injunctive relief only on ground one but not ground two and so the district court doesn't address count two for purposes of the injunction motion so that's all predecessor stuff what theories a jew assert in your preliminary injunction motion we asserted the theory that ordinance one hundred and sixteen dollars both regulated the content of speech and impose unlawful prior restraints both ok got it and the judge understood that he specifically addressed the question to two to counsel and i can quote it's volume fifteen at forty eight and forty nine of two of seven because musical performances are kind of singled out from other forms of the expression and there is a burden put on them to have to get a permit or conform to an outdoor venue requirement in order to play musical performance that's it it's putting a prior restraint or unconstitutional restraint on the expression of music which is constitutionally protected form of expression that's the judge's words so he certainly understood that this was a prior restraint claim as well as the content ok thank you i want to briefly again touch on can i just a question and it might be i don't want to violate any mediation rule but participate in an extensive mediation is i understand early on in the case i was there in the you can just cite this violates your mediation rules but was there ever discussion about how this ordinance could be repaired in such a way t to eliminate all the concerns the act because what i'm hearing is the town is saying we were just trying to give them what they wanted being able to have loud music during the day and you're saying if  not made it just about music we wouldn't have as much of a problem so there's a there's been a fundamental disagreement that it's kind of perpetuated this dispute and that is whether the old noise ordinance regulated sound at the sound producing property now we all agreed throughout this process you could regulate sound at the sound producing property but so long as whatever the standard you're imposing there is design he district judge applied intermediate scrutiny to that did he not that is correct and he considered the evidence and he made analysis and he came to a conclusion that is correct no if we think he's right on land does that solve your problems if we think he's right we think what he did was the correct way to handle the situation does that resolve the issues that you have in other words could you resolve this case so that we don't see you all back in court again and we don't just send it back to the district or yes yes if you think that he's wrong that could resolve this case because on stand that but sometimes we're not at liberty to make decisions that a district judge is at liberty to consider the evidence ok except to the argument of whether or not imposition of a peak standard at ten decibels above the three minute standard is content based i mean that could require a full record we believe we met our burden on that which shifted the burden to them but we would be entitled to a full trial on that particular is part of what you're asking us to do it seems like is to redo this stuff to novo no your honor that i'm not exactly career because as i understand supreme court what we're supposed to be doing is reviewing for abuse of discretion whether or not the district court correctly concluded that you don't have a substantial likelihood of success on the merits that's a couple of inner laid standards but it's certainly not deny right that that is it is not to nova but it is not abuse of discretion in the normal sense why not in the st amendment context and this is in united states v playboy entertainment se promotions limited and i'd particularly direct you to a case out of the th circuit called fell heimer the city of san diego which is six hundred and forty five f rd at eleven  and fifteen through sixteen the standard of review is in a st amendment case at a preliminary injunction we have to establish a colorable claim that its content braced or imposes a prior restraint the burden then shifts to the government to prove either that meets strict scrutiny or with respect to a prior strain it's not an unlawful prior restraint and that is injunction on a st amendment case which or the district court for the district court were not the district court ok let's get to try to get back to basics and maybe maybe we can sort of get on the same page do we know any difference whatsoever to anything that the district court did in this case just generally anything anything at all any difference because the court did not properly apply strict scrutiny as opposed to intermediate scrutiny no factual findings get no deference we get to do the facts ourselves you don't get to do the facts yourselves and there's deference you get to send it back then there's deference owed to factual findings no i'm saying there's been a mistake in the law and the facts need to be assessed no that means that the district courts factual findings may not support the ultimate conclusion of the district court applied the wrong standard i think you're right about that but we don't get to nd guess facts pure factual findings although in the bose case there is a slightly different standard in the st amendment and what's particular for so called constitutional facts correct correct right but not historical facts so for example if the district court said the intents based on the information and the evidence i received the intent of the town of jupiter was not to do x yes right has to be right yes and then your argument is but the court misapplied the legal standard didn't even apply a nd legal standard so you've got to send it all back wrecked ok i understand ok we'll give you i think up what i want to do is just touch briefly on the purpose behind the content based and and i think judge justice scalia said this best the vice of content based legislation is not that it all is always used for invidious thought control purposes but that it lin's itself to that use and so let me give you a perfect example of how this plays out here you're running on your thirty seconds i'm sorry very quickly the district court said that it didn't believe that they were controlling the actual viewpoint in prohibiting rap hip hop  and heavy metal because we voluntarily put that in our statement of use with every application but it really shouldn't be a burden on us to prove that we we didn't voluntarily submit to that it doesn't make any sense that we would voluntarily limit our performances in every single statement of use and that's why the burden is on the