Metropolitan News-Enterprise


Thursday, June 25, 2009


Page 1


En Banc Court Strikes Down Seattle Street Performer Regulations


By SHERRI M. OKAMOTO, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday struck down the city of Seattle’s regulations governing street performers in the downtown entertainment zone known as the Seattle Center as unconstitutionally overbroad.

Sitting en banc, the court disagreed with a three-judge panel that last year voted to overturn an injunction barring the city from enforcing those parts of its regulations which require street performers to obtain permits and wear badges during performances, refrain from actively soliciting money, and prohibiting any communication with visitors who are waiting in line, attending an event or sitting in a spot available for eating or drinking.

The appellate court also remanded, for further factual development, the issue of whether the limitation of street performances to 16 designated locations within the 80-acre district imposed was valid

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.

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 the Ninth Circuit, on a 2-1 vote, held that 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.

Panel Split

U.S. District Judge Sam Haddon of the District of Montana, serving by designation, concurred in the opinion by Judge Diarmuid F. O’Scannlain, but Judge Marsha S. Berzon wrote separately, agreeing that the city could limit performance locations and ban active solicitation but contending the permit, badge, and “captive audience” rules were unconstitutional prior restraints.

On rehearing en banc, Berzon wrote for the seven-judge majority, explaining that a permitting requirement is a prior restraint on speech that bears a heavy presumption against its constitutionality due to the significant burden it places on free speech.

Although the city’s asserted reasons for enacting the permitting regulations—protecting the safety and convenience of park-goers by reducing territorial disputes among performers, deterring harassment of audience members and “clarifying and coordinating potentially competing uses”—constituted substantial government interests, Berzon reasoned that they were not promoted in any significant way by the city’s permitting requirements.

Government Interest

As the city claimed that permits are freely issued with little, if any, screening process and without limit on the number of permits that may be issued, Berzon posited that the permitting requirement did not aid in coordinating multiple uses of the center’s grounds or reducing hostile performer behavior.

“Rather than requiring all speakers to pre-register with the government as a prerequisite to engaging in communicative activity, the City could simply enforce its existing rules against those who actually exhibit unwanted behavior,” she suggested, concluding that the registration requirement was facially impermissibly overbroad as it “burdens all performers to root out the occasional bad apple,” and the city’s main objectives could be achieved by far less intrusive means.

Turning to the restriction on performers’ abilities to solicit donations, Berzon reasoned that the city regulation was a content-based restriction by its very terms as it specifically restricts street performers from communicating requests for donations, though it purports to only regulate the manner in which performers solicit contributions.

Additionally, even if reducing aggressive solicitation would qualify as a compelling government interest, she noted that an absolute ban was “simply not the least restrictive means of reducing overbearing street performer behavior.”

Berzon further reasoned that public park-goers are also not a protectable captive audience for constitutional purposes, as such public fora have traditionally been used for discussion and gathering.

“Given the importance of these locales, we cannot countenance the view that individuals who choose to enter them, for whatever reason, are to be protected,” she said.

Judges Harry Pregerson, Stephen Reinhardt, Michael Daly Hawkins, Kim McLane Wardlaw,  Richard A. Paez, and Milan D. Smith Jr. joined Berzon in rejecting all of the challenged rules as unreasonable time, place or manner restrictions, except for the regulation limiting performances to designated areas. The summary judgment record provided conflicting inferences regarding the adequacy of access to the performers’ intended audience, Berzon said.

Chief Judge Alex Kozinski and Judges Ronald M. Gould  and Richard C. Tallman dissented, with Kozinski and Gould writing separately and joining in each other’s opinions and Tallman concurring with both.

Kozinski argued that the majority “overstates the problems that the rules supposedly cause for the street performers, and minimizes the problems that the street performers caused,” while Tallman maintained that the majority “utterly fails to give due weight to the valid interests of the City of Seattle in protecting a smoothly running Seattle Center.”  Both argued that all of the city’s regulations were constitutionally valid.

Judge N. Randy Smith agreed with the majority that the city’s permitting requirements and ban on active solicitation for street performers were facially unconstitutional. He also joined the majority in invalidating the city’s captive audience rule, but contended that the city’s performance location rule was constitutionally valid. Kozinski joined the dissenting parts of Smith’s opinion.

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


Copyright 2009, Metropolitan News Company