Divided 9th Circuit backs Seattle’s rules for street performers

Friday, January 11, 2008

Editor’s note: The 9th Circuit U.S. Court of Appeals en banc will hear an appeal to Berger v. City of Seattle in September 2008.

SEATTLE — A divided federal appeals court has ruled against a long-time performer and upheld the Seattle Center's requirements that street entertainers wear badges and stay away from people waiting in line.

In a strongly worded dissent, one of the three 9th U.S. Circuit Court of Appeals judges who heard the case agreed with Michael Berger — aka Magic Mike — that the rules violate the First Amendment. “There is no case anywhere, as far as I can tell, approving a speech permitting scheme of this kind,” writes Judge Marsha Berzon in her dissent.

Berger says he'll appeal the majority’s decision in Berger v. City of Seattle.

The rules imposed in 2003 require buskers — or street performers — to get annual $5 permits, wear badges, perform in one of 16 locations and refrain from asking for money.

In April 2005, a lower-court judge sided with Berger, finding the rules violated the First Amendment. The judge wrote that under the rules, “a latter-day Gene Kelly cannot sing in the rain.”

The Seattle Post-Intelligencer reported yesterday that after the 2005 ruling, the city settled with Berger for $22,000, but the case continued in order to resolve the civil rights issues. The newspaper reported that Berger’s attorney, Elena Garella, said he wouldn't have to repay the money if the city prevails in an appeal of the 9th Circuit ruling.

The city appealed the 2005 decision on the civil rights issues, saying the rules are necessary to prevent disputes between performers and to prevent buskers from making too much noise or aggressively seeking donations.

The 9th Circuit majority agreed with the city, writing that the rules “further significant city interests, by keeping street performances from posing threats to the flow and convenience of Seattle Center patrons in heavily congested areas.”

The majority also found that “authorities had the right to protect captive audiences (such as people in a ticket line) seeking to enjoy such functions without being forced to choose between enduring harassment and leaving the facility.”

In her dissent, Judge Berzon took issue with the majority’s characterization of park-goers as a “captive audience.”

“The idea of ordinary parkgoers as, in any sense, ‘captive’ is deeply offensive to the First Amendment. Yet, the Seattle Center has imposed a broad ‘captive audience’ rule which bans any speech — artistic or political — within thirty feet of a line of people, or even of people eating lunch in a seating area, because these groups are supposedly ‘captive.’”

Berzon wrote that “although this particular permitting scheme may seem innocuous, 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 also blasted the majority for allowing a regulatory scheme that requires individuals “to obtain permits from the government before they may engage in communicative activity. Worse, it does so in the context of a public park, a traditional public forum, with regard to which ‘the government bears an extraordinarily heavy burden when it seeks to regulate free speech.’”

Doug Honin of the ACLU of Washington told the Post-Intelligencer that his group agrees with Berger that the decision is a blow to free speech. He said the ACLU may get involved if there is an appeal.

Seattle Center Director Robert Nellams told the newspaper that he was pleased with the ruling.

“The campus rules that were put in place to ensure everyone's safety and comfort are fair and reasonable, and we are pleased that the 9th Circuit Court has reaffirmed their proper place,” Nellums told the newspaper.

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