June 25, 2009

The 9th Circuit is now Street Performer Heaven!

Get out your balloons! Get out your bongos and dulcimers! And go west!
[T]he U.S. 9th Circuit Court of Appeals on Wednesday struck down curbs imposed by Seattle on those performing at the popular Seattle Center, home of the landmark Space Needle.

Michael "Magic Mike" Berger, a busker who sculpted balloon figures and dazzled children with sleight-of-hand tricks, prevailed in his seven-year challenge of the constitutionality of Seattle's 2002 rules regulating street performers. The city had required them to obtain permits, wear badges, refrain from soliciting gratuities, stay away from "captive audiences" and work only within designated sites....

"The city has been trying to turn Seattle Center into a government-controlled place that is very convenient for commercial interests and hostile to freedom and free speech," [Berger] wrote, concluding that "the city needs to wake up and read the Constitution."


tim maguire said...

I'm pretty cool with the staying away from captive audiences part. The rest of it I'm with Berger.

traditionalguy said...

One for the home team.

holdfast said...

I don't have a problem regulating vagrancy or other social nuisances, the city of Seattle was practically tying to regulate these buskers into a straitjacket - or a union.

Dust Bunny Queen said...

OMG..... Unleash the Mimes.

Jeff with one 'f' said...

""The city has been trying to turn Seattle Center into a government-controlled place that is very convenient for commercial interests..."

Isn't he a "commercial interest"?

MadisonMan said...

I hope all the alders in Madison who are trying to regulate State Street performers are reading the decision, and taking notes, and recognizing their own foolhardiness.

Anyday the USSC limits the power of Government? That's a good day.

XWL said...

Sorry, busking isn't speech, it's annoyance (but yeah, in public spaces probably 1st amendment protected annoyance).

The solution, privatize the space around the Space Needle.

Badger said...

Read Judge Kozinski's dissent for an entertaining and persuasive discussion of the City's position. He says: "The rules adopted by Seattle Center are a measured and reasonable response to a real problem; none of them stifles speech in any meaningful way, and none is unconstitutional." (p. 7801.)


Kirk Parker said...

"Unleash the Mimes."

Hey, stop not saying things around me!!!

Beth said...

Good decision. The French Quarter would be a whole different place without street buskers. I don't want a squeaky clean tourist Disneyland or some fenced-off retreat for rich people. I want annoying mimes, loud brass bands, and bad caricature artists. That sounds like I'm being sarcastic, but no. That's the great public square, and I love it.

Zach said...

From page 55 (Kozinski's dissent):

The majority also faults Seattle Center for applying its rules
to street performers who are not obnoxious. Maj. at 7765-66.
But that’s how rules operate: Two million travelers a day go
through U.S. airport metal detectors in order to deter a few—
very few—political terrorists. The Center’s rules are designed
to prevent abusive behavior, not punish those who are abu-
sive. None of these other performers has objected to the rules
and, according to the city, they are happy with them.

The irony is captured in footnote 15 of the majority opin-
ion, which reveals that plaintiff was involved in 70 percent of
the street performer complaints filed before adoption of the
rules. It is fairly clear from the record that the rules were
adopted largely to protect others—including other street
performers—from Mr. Berger’s overly aggressive behavior. It
borders on chutzpah to invoke the rights of these other indi-
viduals, none of whom has seen fit to join Mr. Berger’s suit,
in striking down the rules designed to protect them from him.