Metropolitan News-Enterprise


Thursday, January 10, 2008


Page 1


Ninth Circuit Upholds Regulation of Street Performers


By Kenneth Ofgang, Staff Writer


The City of Seattle’s regulations governing street performers in the downtown entertainment zone known as the Seattle Center do not violate the First Amendment, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

A three-judge panel overturned an injunction barring the city from enforcing those parts of its regulations which require street performers to obtain permits and wear badges during performances, comply with certain terms and conditions in order to obtain and keep their permits, refrain from actively soliciting money, and perform only in 16 designated locations within the 80-acre district.

The appellate court also overturned the district judge’s ruling that a provision barring anyone from engaging in speech activities within 30 feet of a captive ordinance was unconstitutional.

U.S. District Judge James Robart of the Western District of Washington issued the injunction in May 2005, pursuant to a summary judgment motion by street performer Michael J. “Magic Mike” Berger.

Berger has performed in the area since the 1980s, fashioning balloons and talking “about his personal beliefs, especially the importance of reading books,” according to court documents. In the 1990s, he was ejected from the center on several occasions for rules violations, and filed suit in 1996.

First Case Settled

The case was settled after a magistrate judge denied the city’s motion for summary judgment. The city subsequently revised the rules, and Berger brought his second suit in 2003, contending that the challenged rules circumscribed protected activities.

The district judge agreed, but Judge Diarmuid F. O’Scannlain, writing for the Ninth Circuit, said the rules were constitutional because they were content-neutral, narrowly tailored to serve the city’s significant interests, and left open ample alternative means for the performers to communicate.

The $5 permit fee is reasonable, O’Scannlain said, and requiring permits to perform serves the city’s significant interests in reducing territorial disputes among performers, deterring harassment of patrons, and identifying offending performers.

He cited testimony that prior to the enactment of the rules, performers—particularly “Magic Mike”—constantly complained about each other taking a favored “spot” or performing a similar routine, while tenants complained that performers made too much noise or blocked access to their businesses.

“Although the permit requirement affected all street performers, and not only those proven to be disruptive, the city was not required to wait for problems to arise or to speculate as to which performers would pose greater threats,” the judge wrote, adding that had the city applied the requirement to some but not all performers, it would have been subject to challenge for lack of content neutrality.

He distinguished the U.S. Supreme Court’s ruling that the government may not require a permit for door-to-door canvassing by missionaries. Street performances do not carry the same degree of constitutional protection as a historical matter, O’Scannlain said, nor was there any showing that the city was trying to burden the practice of religion or would not treat performers fairly.

“Indeed, the evidence shows that the [Seattle Center] Director has granted permits even to street performers with a history of complaints against them, such as Berger,” the judge wrote.

Alternative Means

The permit requirement also allows alternatives, the judge said, because performers may convey their messages verbally while walking around the area, and may also engage in other expressive activities, such as signature-gathering, leafleting, or speechmaking.

The other requirements also pass muster,                       O’Scannlain said, distinguishing decisions that have struck down bans on direct solicitation of funds in public places. The city, he said, had established that the ban was narrowly tailored to its “significant interest in protecting the Center’s patrons from disruptive and unwanted advances” that patrons had complained of.

The jurist also noted that the rules expressly allowed performers to “passively” accept donations by putting out an instrument case or other receptacle with a sign requesting that patrons contribute.

U.S. District Judge Sam Haddon of the District of Montana, serving by designation, concurred in the opinion. Judge Marsha Berzon wrote separately, dissenting in large measure.

“Although one might think otherwise from reading the majority opinion, the permitting scheme the majority approves serves no discernible purpose whatever, other than to identify speakers to the government in advance of their speech,” Berzon wrote. “There is no limit on the number of permits, and although another part of the rule designates certain locations at the Seattle Center for street performers generally, the permits do not assign any particular location at the Seattle Center to any particular street performer. So there is simply no crowd or traffic control function served by the permitting scheme.”

While the “permitting scheme may seem innocuous,” she wrote, “the principle that American citizens ordinarily do not need government permission to speak in public places is a precious one, and one the majority entirely ignores.” Berzon argued that the permit, badge, and “captive audience” rules are unconstitutional, although she agreed that the city may limit performance locations and ban active solicitation.

The case is Berger v. City of Seattle, 05-35752.


Copyright 2008, Metropolitan News Company