BERGER v. CITY OF SEATTLE - ACLU of Washington

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252 BERGER v. CITY OF SEATTLE I am aware of no case — ever— that has approved a permit requirement in a traditional public forum where there is absolutely no coordination of use purpose. The majority has cited none. Given that speech registration is, by its nature, only justifiable if it serves a significant government interest, it is not surprising that such cases do not exist. Indeed, we have expressed profound skepticism of such permits even when they do serve a coordination purpose. In Grossman, for instance, we struck down a permit requirement for demonstrating or gathering in parks in Portland, Oregon that was designed to “permit efficient time, place and manner regulation,” 33 F.3d at 1205 n. 9 (internal quotation marks omitted), and which required permit applicants to register seven days in advance of any gathering, “describing the details of the planned event” in their applications. Id. at 1204. Although we “sympathize[d] with the City’s concern for the safety and convenience of park users,” we could not agree that this interest could justify the “substantial restrictions” inherent in a permit to speak. Id. at 1206. “Both the procedural hurdle of filling out and submitting a written at a picnic, even whistling, are swept up into this broad requirement. Reading the text of the rule, I would have no difficulty holding that the rule is unconstitutionally overbroad. But Seattle urges us to read the definition far more narrowly than its text, to apply essentially only to professional street entertainers and buskers. While “it is common to consider a city’s authoritative interpretation of its guidelines and ordinances . . . [t]o affect the constitutional analysis, such a limiting construction must ‘be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice’.” Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022, 1035 (9th Cir. 2006) (quoting City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 770 (1988)). There is no such binding construction or textual incorporation of the city’s asserted limits here, and it is not obvious to me that wellestablished practice at the Seattle Center indicates that the broad text of the rule has been so limited. Still, the majority thinks so; I am willing to go along because the rule cannot survive even with that narrowing construction.
BERGER v. CITY OF SEATTLE 253 application and the temporal hurdle of waiting for the permit to be granted may discourage potential speakers.” Id.; see also N.A.A.C.P., Western Region v. City of Richmond, 743 F.2d 1346, 1355 (9th Cir. 1984) (“The simple knowledge that one must inform the government of his desire to speak and must fill out appropriate forms and comply with applicable regulations inhibits speech.”); Rosen, 641 F.2d at 1249 (advance notice “drastically burden[s] free speech”). So, although the Grossman permitting scheme did, unlike the permitting rule here, purport to serve the significant governmental interest of coordinating the use of public space, the burdens it created were too large to be endured. 33 F.3d at 1208-09. We have taken these burdens very seriously: In Rosen, where the permit ordinance required only one day’s notice and advance disclosure of the name of the speaker, we struck it down, holding that the “interest in knowing in advance what type of free speech activities may occur . . . is insufficient to justify an ordinance so broad in its application and with so chilling an impact on the exercise of [F]irst [A]mendment rights.” 641 F.2d at 1249. The Seattle Center scheme is not only unsupported by a governmental coordination interest; it also reaches individual speakers. 5 This reach alone renders it suspect. When we have allowed coordination permits it has been for large groups: “As the cautionary language in our earlier opinions indicates, the significant governmental interest justifying the unusual step of requiring citizens to inform the government in advance of expressive activity has always been understood to arise only when large groups of people travel together on streets and sidewalks.” Santa Monica Food Not Bombs, 450 F.3d at 1039; see also Grossman, 33 F.3d at 1206 (“Some type of permit requirement may be justified in the case of large 5 The two features are, of course, closely related. Only large groups of people in public parks and on public streets create a need for coordination of uses of public space.
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BERGER v. CITY OF SEATTLE - ACLU of Washington

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