BERGER v. CITY OF SEATTLE - ACLU of Washington

258 BERGER v. CITY OF SEATTLE
rial task,” performed promptly and for free, “a law requiring
a permit to engage in such speech constitutes a dramatic
departure from our national heritage and constitutional tradition.”
Id.
I note, finally, that even if registration to identify speakers
were ever acceptable, it is, from a purely practical perspective,
entirely unnecessary here. The rule targets street performers,
not anonymous members of the public. Such people
stake their careers on being readily identifiable, develop distinctive
shows, and are frequent return visitors to their performance
sites. It would not be hard for a police officer
patrolling the Seattle Center to recognize a rogue fireswallower.
Indeed, incident reports in the record make reference
to such distinctive characters as a hula-hooping magician
and “the puppet guy.” If Seattle Center officials are having
trouble tracking down such easily identifiable characters,
which I doubt, the solution is to pay more attention, not to do
violence to the Constitution. 11
U.S. at 162, so too does the use of public parks for artistic and creative
endeavors (which may also often include political content) have deep
roots: Parks are classically thrown open to public expression. See Perry
Educ. Ass’n, 460 U.S. at 46 (1983). For this reason, the majority’s claim
that Watchtower Bible is inapposite because street performing is not as
important as religious and political canvassing, Maj. Op. at 222, is not persuasive.
And the majority’s “most important[ ]”, id., distinction — that the
ordinance in Watchtower Bible “bore no relation to the municipality’s
stated purposes” while the permit requirement is closely related to government
interests — makes little sense. The permit requirement here in fact
shares the problems discussed in Watchtower Bible.
11 As the majority notes, Maj. Op. at 218 n. 13, the Seattle Center’s
badge requirement is intimately connected to the permit requirement: The
permits are to “be evidenced by a badge that shall be worn or displayed
by a performer in plain view at all times during a performance.” Because
I believe that the permit requirement itself is unconstitutional and because
no badges will be issued without permits, I have no need to decide
whether an independent badge requirement in this context would be constitutional.
I therefore do not concur in Part III.B of the majority opinion,
which upholds the badge requirement, premised largely on the supposed
constitutionality of the permit requirement.