BERGER v. CITY OF SEATTLE - ACLU of Washington

BERGER v. CITY OF SEATTLE
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The Seattle Center’s permit rule is not comparable to the
overbroad and untailored licensing ordinance invalidated by
the Court in Watchtower Bible and Tract Society of New York,
Inc. v. Village of Stratton, 536 U.S. 150 (2002). 15 There, the
Court invalidated an ordinance requiring any solicitor or canvasser
to obtain prior permission before going on private
property to promote a cause and to carry a permit on his or
her person. 16 536 U.S. at 155. The Court found that the permit
scheme unduly broad and without relationship to a valid government
objective.
The dissent argues that we have “badly misread[ ] Charleston.” Dissent
at 254 n.6. However, the dissent’s note only reaffirms our interpretation.
Id. (“It emphasized that any ‘legislative body’ crafting a permit requirement
‘should tailor that requirement to ensure that it does not burden small
gatherings posing no threat to the safety, order, and accessibility of streets
and sidewalks.’ ”). The quote cited by the dissent shows that the court in
Charleston did not create a rule based on individuals or large groups but
based on the groups’ or individuals’ effect on “safety, order, and accessibility
of streets and sidewalks.” Id.
15 Berger did not contend that Watchtower should guide our analysis,
and his brief stated: “At most, Watchtower supports the district court’s
determination that it was not necessary to reach the issue [of the validity
of the badge requirement] where the permit system has been invalidated.”
However, the case helps illuminate the sort of licensing scheme that would
exceed constitutional bounds and provides an apt contrast with the Seattle
Center’s permit scheme.
16 The Court found it “unnecessary” to determine whether a lower standard
of review would apply to a restriction on private property than in a
public forum. See Watchtower, 536 U.S. at 164. Chief Justice Rehnquist
assailed the majority on this score: “It is not clear what test the Court is
applying, or under which part of that indeterminate test the ordinance
fails.” Id. at 175 (Rehnquist, C.J., dissenting). “The Court suggests that
[the city’s] regulation of speech warrants greater scrutiny [than that
applied to restrictions in public forums in Ward, 491 U.S. at 791, and
Thomas, 534 U.S. at 122]. But it would be puzzling if regulations of
speech taking place on another citizen’s private property warranted greater
scrutiny than regulations of speech taking place in public forums. . . .”
Watchtower, 536 U.S. at 176.