BERGER v. CITY OF SEATTLE - ACLU of Washington

BERGER v. CITY OF SEATTLE
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Madsen, 512 U.S. at 757-59; Schenck, 519 U.S. at 362-65;
Hill, 530 U.S. at 709-10. Yet, in those cases, where real and
documented threats were present, the restrictions put in place
were still narrower than the flat ban on all “speech activities”
the majority upholds today. See Madsen, 512 U.S. at 760 (ban
on “approaching any person seeking the services of the Clinic
unless such person indicates a desire to communicate”)
(emphasis added); Schenck, 519 U.S. at 366 n. 3 (injunction
allowing sidewalk counseling “of a non-threatening nature”);
Hill, 530 U.S. at 707 n. 1 (ordinance barring approaching
within eight feet of a person entering clinic “unless such other
person consents”). Here, in contrast, the Seattle Center’s
“captive audience” regulation would forbid a political campaign
representative from offering a handbill to a consenting
picnicker in an entirely benign — even silent — manner. Are
we to suppose that such a phantom threat to picnic tranquility
justifies more stringent controls on speech than those gingerly
applied in the Madsen line of cases? The majority defends a
draconian solution to an undocumented problem with its
strained reading of Dale and Roberts.
Most importantly, perhaps, the majority again forgets in its
invocation of Dale and Roberts that it is a public park we are
dealing with: As I have already discussed at length, the tradition
of open discourse in such places is central to our constitutional
heritage. There, the balance between the majority’s
purported “right” to picnic in peace and lively, even raucous,
speech has been struck in favor of speech since “time out of
mind.” Hague, 307 U.S. at 515. The speech whose protection
reaches its zenith in public fora extends beyond ideas capable
of relatively precise, detached explanation to communication
serving a more emotive function, including efforts to persuade,
entertain, and elucidate through strong language, and
to calls to honor, to disapprove, to shame, and to celebrate.
See, e.g., N.A.A.C.P. v. Claiborne Hardware Corp., 458 U.S.
886, 910-911 (1982) (“Speech does not lose its protected
character, however, simply because it may embarrass others
or coerce them into action.”); Terminiello v. City of Chicago,