City’s Regulation Of Performers At A City Park Is Unconstitutional Because It Is Overly Broad And Does Not Meaningfully Promote The City’s Interests

In Berger v. City of Seattle, (— F.3d —-, C.A.9 (Wash.), June 24, 2009), the United States Court of Appeals considered a challenge to a city’s regulations of performance artists at a city park. The court found that because the regulations restricted speech, were overly broad, and the city failed to show how the regulations meaningfully promoted its legitimate interests, they were unconstitutional violations of the right to free speech.

Facts

In 2002, the City of Seattle (“City”) issued a set of rules governing the conduct of visitors to the Seattle Center (“Center”), an 80-acre entertainment center that includes a 23-acre public park. Among the rules were requirements that “street performers” obtain a permit before performing at the park and wear a badge displaying the permit while performing; a rule limiting performances to specific locations; a ban on performers “actively soliciting donations;” and a prohibition on performing within 30 feet of a “captive audience,” defined as people waiting in lines, attending a center event, or seated in a place where food or beverages are consumed.

Michael Berger, a balloon artist, filed suit in federal district court, alleging the City’s rules violated his First Amendment right to freedom of speech. The district court granted summary judgment for Berger, and the City appealed. A three-judge panel reversed the district court and upheld the City regulations, and Berger then appealed to the entire Court of Appeals to hear the matter en banc.

Decision

The court began its analysis with what it called a “bedrock principle,” that the First Amendment’s free speech protections are nowhere stronger than in public parks, which have always been held in trust for the public “for purposes of assembly, communicating thoughts between citizens, and discussing public questions,” citing Grossman v. City of Portland, 33 F.3d 1200 (9th Cir. 1994).

The court first considered the permitting requirement, calling it a prior restraint on speech that therefore bears a “heavy presumption” against its constitutionality, citing Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992). The Supreme Court has repeatedly found that permitting systems applying to individual speakers – as opposed to large groups – are unconstitutional because they sweep too broadly and only marginally advance the government’s asserted interest, and because the government’s interest can be achieved by less intrusive means.

While the City has a valid interest in protecting the safety and convenience of park-goers by reducing disputes among performers and deterring harassment of audience members, the permitting requirement did not promote those interests in any meaningful way, the court found. The City could simply enforce existing rules against those who actually exhibit unwanted behavior, rather than restrict the speech of all park performers. “The Supreme Court has consistently struck down prior restraints on speech where a state could achieve its purported goal of protecting its citizens from wrongful conduct by punishing only actual wrongdoers, rather than screening potential speakers,” the court said, citing Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781 (1995).

Since the permitting requirement did not significantly advance the City’s interest in protecting its citizens, it was an unconstitutional prior restraint of speech, the court found. “It requires single individuals to inform the government of their intent to engage in expressive activity in a public forum, a requirement that neither we nor the Supreme Court has ever countenanced,” the court concluded.

The location restriction did promote a City interest in reducing potential territorial disputes among performers, the court said. The issue then was whether it left open ample alternative channels for communication. There was conflicting evidence concerning whether the City’s permitted locations provided adequate access to performers’ intended audience, the court said. This question was therefore remanded to determine whether the City had met its burden in justifying the restriction.

The court next considered the City’s ban on performers’ actively soliciting donations. Speech that solicits funds is protected by the First Amendment, and restrictions on it are therefore subject to the same standards as those that limit other forms of speech. This rule was content-based by its very terms. “It specifically restricts street performers from communicating a particular set of messages – requests for donations,” the court said. An officer seeking to enforce this ban must necessarily examine the content of the message that is conveyed. The court found that because this restriction is content-based, it is subject to strict scrutiny which it cannot withstand. Because the city could have relied on constitutionally valid nuisance and aggressive panhandling laws to meet the same ends, its sweeping ban on speech soliciting funds was unconstitutional.

The rule that prohibited speech to a “captive audience” – people waiting in line, attending an event, or in a location for eating or drinking – was also far too broad to withstand constitutional scrutiny, the court found. The implications of this rule were “startling,” the court said, because it amounted to “almost unlimited regulation of speech in a public park.” Any person visiting a park, who might have reason to stay in a specific location rather than move elsewhere, or even people walking or running through a specific park location, could be deemed to be having a reason for being in that, rather than another, location, and therefore a “captive audience,” the court said. “No governmental interest – and certainly not an interest in protecting public park-goers from unwanted communications – could justify such a sweeping ban,” the court found.

Therefore, the district court’s grant of summary judgment to Berger on the permitting requirement, the ban on actively soliciting donations, and the ban on speech to a captive audience, were affirmed. The ruling on the location restrictions was remanded for further consideration.

Questions

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