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Ninth Circuit Decision May Impact Cities’ Regulation of Street Performers and Street Speakers

The Ninth Circuit’s June 2009 en banc decision in Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) found some of the City of Seattle’s regulations pertaining to street performers and others engaged in expressive conduct to be unconstitutional, including some that it had previously concluded, in 2008, to have passed constitutional muster.

This latest decision highlights the fluidity of First Amendment case law and the attendant need for cities to periodically review, and update as necessary, regulations impacting free speech. In Berger, the Court analyzed regulations governing conduct in an 80-acre Seattle public park and entertainment complex. Key aspects of the ruling are summarized below.

1. Permit and Badge Requirements for Street Performers

The Ninth Circuit’s en banc decision found Seattle’s regulation requiring all street performers to obtain a $5 annual permit and wear a badge unconstitutional. The Court, this time around, analyzed the regulations as a single speaker permit requirement and found the regulations suspect. Specifically, the Court pointed out that a permit system that applies to individual speakers, as opposed to large groups, has consistently been struck down by the Ninth Circuit and sister Circuits alike. (The Ninth Circuit noted that the Supreme Court has not yet addressed the issue in relation to public parks.) The Court aligned its decision with its previous decisions in Santa Monica Food Not Bombs and Long Beach Area Peace Network in which it found that a threshold number must be met before an advance notice permit requirement is constitutional. In Santa Monica Food Not Bombs and Long Beach Area Peace Network the Court found that 150 and 75, respectively, were constitutionally acceptable threshold numbers for requiring a permit. Prior to the Ninth Circuit’s en banc ruling, it was not obvious that a annual fee and badge requirements qualified as advance notice permit requirements. As such, cities may find it prudent to review their regulations to determine whether they have permit fees and/or badge requirements that apply to single speakers and to modify such requirements if they do.

2. Performance Location Rule for Street Performers

Also at issue in Berger was Seattle’s requirement limiting street performers to 16 locations in the SeattleCenter. The Ninth Circuit found that the summary judgment record was insufficient to establish whether the performance location rule was unconstitutional. The Court noted that Seattle had presented evidence that it received weekly complaints about performers blocking entranceways and engaging in disruptive and volatile territorial disputes and that the performance location rule does help reduce such problems. The Ninth Circuit noted, however, that the record did not establish whether the performance location rule left ample alternative channels for communication such that the street performers could reach their intended audience as constitutionally required. Thus, if cities are interested in location rules for street performers, they should draft findings as to why locational restrictions are necessary and should establish such restrictions in a way that allows speakers and performers to reach their intended audience.

3. Passive Solicitation Rule for Street Performers

The Ninth Circuit also found that the rule stating that no performer shall actively solicit donations unconstitutional. The Court found that the rule was content-based because it was a ban on the manner of making a request (i.e., a ban on active speech). By contrast, the Court explained that a ban on the hand-to-hand exchange of money is not content-based because it is a ban on conduct and not speech. Because the Court found the regulation on soliciting donations to be content-based, it applied strict scrutiny and found that the regulations did not serve a compelling government interest in curbing aggressive solicitation. This is not necessarily consistent with case law from other circuits that have been more lenient when reviewing solicitation regulations. It seems likely that the Berger decision on this point was driven by the specific facts of the case (i.e., regulating performers in a public park) and as such makes it more difficult to determine whether a solicitation regulation may pass constitutional muster in other contexts. Given the resulting murkiness, cities should thoroughly analyze any proposed solicitation regulations and support them with the appropriate findings. Likewise, cities may find it prudent to review their existing solicitation regulations to determine whether such regulations require updating in light of the Berger decision.

3. Captive Audience Rule (applicable to all speakers not just street performers)

Finally, the Ninth Circuit found unconstitutional Seattle’s rule prohibiting speech activities within 30 feet of any captive audience. Specifically, the Court stated that “[n]o government interest — and certainly not an interest in protecting public parkgoers from unwanted communications — could justify such a sweeping ban.” Of note, however, the Berger decision seems to diverge from other case law that has been far more lenient in upholding regulations addressing aggressive solicitation and protecting captive audiences. In particular, the cases involving panhandling and/or charitable solicitations have upheld regulations that prohibit solicitations near ATMs, bus stops, and other locations with captive audiences and have repeatedly found such regulations to be content-neutral. The Berger court acknowledges some of these decisions and does not appear to question their constitutionality.

Meyers Nave closely monitors developments in the First Amendment arena and will continue to provide pertinent updates. For questions regarding the impact the en banc Berger decision may have on current or planned regulations, please contact Deborah Fox.