BERGER v. CITY OF SEATTLE - ACLU of Washington

BERGER v. CITY OF SEATTLE
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grounds as a whole were the destination of the Fair’s patrons,
most if not all of the areas would be equally congested.”
Kuba, 387 F.3d at 863. This was not true for the “parking lots
and walkways” at the Cow Palace. Id. at 862. We also emphasized
that “the number of visitors and exhibitors at the Minnesota
State Fair . . . was vastly greater than the number of
visitors and exhibitors at the [facility in Kuba]” and the parking
lots in Kuba “[we]re not stopping places for patrons.” Id.
at 863. Finally, we stated that “while at the Fair the booths
available for distribution of literature ‘are located within the
area of the fairgrounds where visitors are expected, and
indeed encouraged, to pass,’ [the rule c]ordoning protestors
off in a free expression zone the size of a parking space,
located over 200 feet from the entrance [to the facility in
Kuba] far from encouraging interaction with them, is more
likely to give the impression to passers by that these are people
to be avoided.” Id. at 863 (citing Heffron, 452 U.S. at 655
n.16).
The contrast between Heffron and Kuba illustrates the distinction
between permissible and illegitimate location restrictions.
The Seattle Center’s rules further significant city
interests, by keeping street performances from posing threats
to the flow and convenience of Seattle Center patrons in heavily
congested areas and entrances to buildings. See Kuba, 387
F.3d at 850 (“The Policy certainly furthers the governmental
interest in preventing congestion. It would be hard to imagine
an exclusion of speakers from a given area that did not meet
this interest, at least marginally.”). Unlike in Kuba we note
substantial evidence that the attraction of an audience in many
locations would pose concerns for crowd control. Unlike leafletting
and carrying signs, a street performance seeks to
gather an audience, and thus even a single performer can generate
congestion problems. Compare Kuba, 387 F.3d at 860
(finding it implausible that “Kuba and the handful of other
demonstrators would contribute significantly to the congestion
and traffic danger if allowed to demonstrate in any area
other than the free expression zones”). Nearly ten million visi-