BERGER v. CITY OF SEATTLE - ACLU of Washington

BERGER v. CITY OF SEATTLE
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limits on spontaneous expression. Grossman, 33 F.3d at 1205
n. 9 (quoting Rosen v. Port of Portland, 641 F.2d 1243, 1250
(9th Cir. 1981)); see also Santa Monica Food Not Bombs, 450
F.3d at 1052-53 (upholding some permitting requirements,
but not others, applicable only to large groups of people).
But our usual careful inquiry into how well a permit system
serves its coordination purpose cannot even begin in this case.
For the Seattle Center’s registration scheme serves no coordination
purpose at all. Instead, it serves only one purpose: To
allow the government to know who is planning to engage in
communication through street performance at the Seattle Center
at some indeterminate time in the future. This “purpose,”
such as it is, is not a permissible governmental interest at all,
much less a significant one.
More specifically: The Seattle Center requires all street performers
to obtain a permit from the Director of the Seattle
Center, valid for one year, in order to perform. The permits
have nothing to do with where or when the performance will
occur. In fact, “[s]pecific performance times will not be
assigned to a performer by the Center.” (Emphasis added).
Instead, “[p]erformance locations are available on a first come
first served basis.” “If the performer abandons the location,
for any reason, the location may be utilized by another performer.
Locations may not be ‘saved’ or ‘reserved.’ ” So it is
the large number of well-located performance spots — a
restriction which I am willing to assume is valid in this
unusual context — that reduce performer conflicts over space.
The permit requirement has nothing to do with the space allocation
effort, but is simply a gratuitous restriction on speech. 4
4 On its face, the rules apply very broadly indeed. The Seattle Center’s
rules define a “street performer” as “a member of the general public who
engages in any performing art or the playing of any musical instrument,
singing or vocalizing, with or without musical accompaniment, and whose
performance is not an official part of an event sponsored by the Seattle
Center or by a Seattle Center licensee.” Protest songs, playing the guitar