Berger v. City of Seattle
512 F.3d 582, 2008 WL 80707, 2008 U.S. App. LEXIS 331 (2008)
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Rule of Law:
Content-neutral time, place, and manner regulations on speech in a traditional public forum are constitutionally permissible if they are narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communication.
Facts:
- The Seattle Center is an 80-acre public entertainment zone in downtown Seattle, which the court recognizes as a traditional public forum.
- Michael Berger, a street performer who creates balloon sculptures and discusses personal beliefs, has performed at the Seattle Center since the 1980s.
- In response to numerous public complaints and safety concerns, including territorial disputes between performers and harassment of patrons, the Seattle Center Director enacted a new set of Campus Rules in 2002.
- The new rules required street performers to obtain a $5 annual permit and wear a badge (Rule F.1).
- The rules also banned street performers from actively soliciting donations, although passive collection was permitted (Rule F.3.a).
- Performances were restricted to sixteen designated locations within the Center (Rule F.5).
- A separate rule prohibited all persons from engaging in speech activities within 30 feet of any 'captive audience,' such as people waiting in line (Rule G.4).
- After the new rules were enacted, Berger obtained a permit but continued to be the subject of public complaints and staff reports of rule violations.
Procedural Posture:
- Michael Berger sued the City of Seattle in the U.S. District Court, alleging the Seattle Center Campus Rules violated his First and Fourteenth Amendment rights.
- The district court granted summary judgment to Berger, concluding that the challenged rules facially violated the First Amendment.
- The district court issued a permanent injunction preventing the city from enforcing the rules.
- Pursuant to a stipulation, the city paid Berger nominal damages and attorney's fees, and the court dismissed Berger's remaining claims with prejudice.
- The City of Seattle (appellant) appealed the district court's grant of summary judgment to the U.S. Court of Appeals for the Ninth Circuit; Berger is the appellee.
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Issue:
Do a city's regulations for a public park—requiring permits for street performers, banning their active solicitation, limiting them to designated locations, and prohibiting speech within 30 feet of a captive audience—violate the First Amendment as impermissible time, place, and manner restrictions?
Opinions:
Majority - O'Scannlain, J.
No. The city's regulations are constitutional time, place, and manner restrictions that do not violate the First Amendment. The rules are content-neutral because they regulate the medium of performance and serve purposes unrelated to the speaker's message, such as maintaining order and safety. They are narrowly tailored to serve the city's significant interest in protecting the safety and convenience of patrons by addressing documented problems like territorial disputes and harassment. Finally, the rules leave open ample alternative channels for communication, as performers can still convey messages verbally, leaflet, and perform in numerous designated high-traffic locations with a routinely issued permit.
Concurring-in-part-and-dissenting-in-part - Berzon, J.
Yes, in part. The permit/badge requirement and the captive audience rule violate the First Amendment, while the bans on active solicitation and the location restrictions are constitutional. The permit scheme is an unconstitutional speech registration system, not a coordination mechanism, as it does not assign specific times or places and thus serves no significant government interest beyond identifying speakers to the government. The captive audience rule is a radical and dangerous extension of a doctrine that has no place in a traditional public forum; park-goers waiting in line are not 'captive,' and the rule creates impermissible 'floating' speech-free zones. I concur in upholding the rules that channel speech to prevent conflicts (location rule) and address aggressive behavior (solicitation ban).
Analysis:
This decision reinforces the authority of municipalities to regulate expressive activity in traditional public forums through content-neutral rules aimed at public safety and order. The court's application of the standard time, place, and manner test provides a clear framework for analyzing such regulations. The most significant and controversial aspect is the majority's extension of the 'captive audience' doctrine to patrons in a public park, a concept the dissent argues is fundamentally at odds with the nature of a public forum and could lead to broader restrictions on speech in traditionally protected spaces. The case highlights the ongoing tension between protecting free expression and managing public spaces.
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