BERGER v. CITY OF SEATTLE - ACLU of Washington

BERGER v. CITY OF SEATTLE
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[7] Nor does the permit requirement fail the narrow tailoring
test for underinclusiveness. 20
Berger argues that the rule
does not match its purpose because it “targets street performers
while allowing large crowds engaged in other types of
expression to gather without a permit.” However, narrow tailoring
does not require comprehensiveness: a rule is “narrowly
tailored” as long as the significant interest of the government
a religious one or is a bona fide object of charity or philanthropy and conforms
to reasonable standards of efficiency and integrity.” Id. at 302. The
Court decided that the statute violated the free exercise clause of the First
Amendment because it constituted a “censorship of religion.” Id. at 305.
Likewise, in Schneider v. New Jersey, 308 U.S. 147 (1939), the Court
deemed unconstitutional a content-based statute that subjected prospective
speakers to “the power of a police officer to determine, as a censor, what
literature may be distributed.” Id. at 163. And in Village of Schaumburg
v. Citizens for a Better Environment, 444 U.S. 620 (1980), the Court invalidated
an ordinance requiring permits for solicitation and barring any such
solicitation “by charitable organizations that do not use at least 75 percent
of their receipts for ‘charitable purposes.’ ” Id. at 623. The Court did not
object to the provision requiring permits for organizations that passed the
75-percent threshold; rather, the Court found unjustifiable the rule denying
permits to organizations that did not pass such threshold. The Court did
not object to the fact that a permit was required, but to the reasons for
which permits could be denied. See id. at 640 (“The 75-percent requirement
plainly is insufficiently related to the governmental interests asserted
in its support to justify its interference with protected speech.”). Citing its
prior rulings in Cantwell, Jamison v. Texas, 318 U.S. 413 (1943), and
Schneider, the Court reiterated that “ ‘a state m[ay] not prevent the collection
of funds for a religious purpose by unreasonably obstructing or delaying
their collection.’ ” Village of Schaumburg, 444 U.S. at 631.
The statutory rules rejected in Cantwell, Schneider, Jamison, and Village,
can be distinguished easily from the Seattle Center’s permit requirement,
which does not support such content-based censorship.
20 The district court disagreed, holding the rules to be underinclusive
because they did not reach activities with “a greater impact on Seattle
Center patrons and tenants” and to be overbroad because they barred more
expression than “they were intended to reach.” The court did not reach
Berger’s final argument, that the rules foreclose all avenues of communication
“because no performances are permitted anywhere at the Seattle
Center without a permit.”