Berger v. City of Seattle ( 2008 )

Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL JAMES BERGER, a single 
man also known as Magic Mike,
Plaintiff-Appellee,
v.
CITY OF SEATTLE; VIRGINIA No. 05-35752
ANDERSON, Director of Seattle
Center; MICHAEL ANDERSON,  D.C. No.
CV-03-03238-JLR
Emergency Service Manager for
Seattle Center; TEN UNKNOWN OPINION
EMPLOYEES/OFFICERS, of the Seattle
Center and the City of Seattle, all
in both their individual and
official capacities,
Defendants-Appellants.

Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted
March 7, 2007—Seattle, Washington
Filed January 9, 2008
Before: Diarmuid F. O’Scannlain and Marsha S. Berzon,
Circuit Judges, and Sam E. Haddon,* District Judge.
*The Honorable Sam E. Haddon, United States District Judge for the
District of Montana, sitting by designation.
205
206 BERGER v. CITY OF SEATTLE
Opinion by Judge O’Scannlain;
Partial Concurrence and Partial Dissent by Judge Berzon
BERGER v. CITY OF SEATTLE 209
COUNSEL
Gary E. Keese, Assistant City Attorney, Seattle, Washington,
argued the cause for the defendants-appellants; Thomas A.
210 BERGER v. CITY OF SEATTLE
Carr, Seattle City Attorney, Seattle, Washington, was on the
briefs.
Elena Luisa Garella, Elena Luisa Garella PC, Seattle, Wash-
ington, argued the cause for the plaintiff-appellee and was on
the brief.
OPINION
O’SCANNLAIN, Circuit Judge:
We must determine the bounds of a city’s authority to
restrict expression in a public forum.
I
The public forum is the “Seattle Center,” an entertainment
zone covering roughly 80 acres of land in downtown Seattle,
Washington. Each year, the Seattle Center’s theaters, arenas,
museums, exhibition halls, conference rooms, outdoor stadi-
ums, and restaurants attract nearly ten million visitors. The
city wields authority over this large tract of land and has dele-
gated its power to promulgate rules to the Seattle Center
Director (“Director”). See Seattle, Wash., Municipal Code
§ 17.04.040. In 1978, the Director issued rules setting forth
procedures and requirements governing use of the Seattle
Center campus. In 2002, after an open process of public com-
ment,1 the Director issued a superseding set of provisions in
response to specific complaints and safety concerns, which
became known as the Seattle Center Campus Rules.
1
Before enactment, the rules were “published in the English language
continuously” for six months in the Seattle area. In response to “comments
from street performers,” the Director made several changes to the rules,
such as expanding the number of preordained locations at which perfor-
mances could take place. The 2002 version was formally adopted on May
31, 2002.
BERGER v. CITY OF SEATTLE 211
This litigation, originally brought by Michael Berger, a
street performer, requires us to consider the validity of five
Campus Rules. The first four affect street performers only:
Rule F.1 requires a permit for street performances and
requires badges to be worn during street performances, Rule
F.2 sets the terms of conditions of obtaining a permit, Rule
F.3.a bars active solicitation by street performers, and Rule
F.5 limits street performances to sixteen designated locations.2
Another provision affects all persons in the Seattle Center:
Rule G.4 forbids speech activities within 30 feet of a captive
audience. Berger mounts a facial attack on the constitutional-
ity of these five restrictions.
Berger has performed in the Seattle Center since the 1980s,
making balloon creations and “talk[ing] to his audience about
his personal beliefs, especially the importance of reading
books.” In the 1990s, Seattle Center authorities ejected Berger
for various violations of the 1978 Campus Rules. In 1996, he
sued the authorities, alleging violations of the First and Four-
teenth Amendments under 42 U.S.C. § 1983. The city moved
for summary judgment, but the magistrate judge denied the
motion on the grounds that “substantial authority” supported
“a constitutionally protected right to perform magic tricks,
create balloon sculptures, and receive voluntary donations in
a public park.” That case ultimately settled.
When the revised Campus Rules were enacted in 2002,
Berger obtained a permit.3 Yet he continued to face problems
with the Seattle Center authorities: members of the public
filed numerous complaints alleging that Berger exhibited
threatening behavior and Seattle Center staff reported several
rule violations. In 2003, Berger filed this complaint seeking
damages and injunctive relief for alleged civil rights viola-
tions. In particular, he raised as-applied and facial challenges
2
The Seattle Center has not enforced these rules since the district court
enjoined their enforcement in May 2005. See infra.
3
Berger renewed his permit through the end of 2004.
212 BERGER v. CITY OF SEATTLE
to Rules F.1, F.2, F.3.a., F.5, F.7.a,4 and G.4. In 2005, the dis-
trict court granted summary judgment to Berger, concluding
that these rules facially violated the First Amendment.5 Pursu-
ant to a stipulation by the parties, the city paid Berger $1 in
nominal damages and $22,000 in attorney’s fees and costs and
the court dismissed with prejudice Berger’s remaining and
potential claims.6
The city timely appeals the district court’s order of sum-
mary judgment and seeks reversal with instructions to enter
summary judgment in its favor.
II
[1] The First Amendment states that “Congress shall make
no law . . . abridging the freedom of speech, or of the press.”
U.S. Const. amend. I, cl. 2. Expressive activity must be partic-
ularly protected in a traditional public forum, such as the
Seattle Center:7
In places which by long tradition or by government
fiat have been devoted to assembly and debate, the
4
Campus Rule 7.a states: “No performer shall treat any person or animal
in a manner that is aggressive, menacing, vulgar, profane, or abusive.”
5
Having concluded that the permit requirement was unconstitutional,
the judge did “not address the requirement that permits ‘shall be evidenced
by a badge that shall be worn or displayed by the performer.’ ” Further-
more, because Berger failed to offer grounds to support his “cursory chal-
lenge” to Rule 7.a, and “cite[d] no case authority” as to that rule, the
district court declined to consider that claim. Berger does not challenge
that ruling on appeal.
6
The stipulation did not address the injunction of the Seattle Center
rules, which the city contests in its appeal at bar. Berger does not dispute
the city’s right to bring this appeal.
7
At the district court, the government argued that Seattle Center should
be considered a limited public forum. The district court carefully consid-
ered the precedents and evidence on this issue and concluded that “Seattle
Center is a traditional public forum.” The government does not contest this
determination on appeal, and the record supports the characterization.
BERGER v. CITY OF SEATTLE 213
rights of the State to limit expressive activity are
sharply circumscribed. At one end of the spectrum
are streets and parks . . . . In these quintessential
public forums, the government may not prohibit all
communicative activity.
Perry, 460 U.S. 37, 46 (1983). However, “[t]he principles of
First Amendment are not to be treated as a promise that
everyone with opinions or beliefs to express may gather
around him at any public place and at any time a group for
discussion or instruction.” Poulos v. New Hampshire, 345
U.S. 395, 406 (1953); see also Near v. Minnesota, 283 U.S.
697, 716 (1931) (“[P]rotection even as to previous restraint is
not absolutely unlimited.”).
[2] “Expression, whether oral or written or symbolized by
conduct, is subject to reasonable time, place, or manner
restrictions.” Clark v. Comty. for Creative Non-Violence, 468
U.S. 288, 293 (1984). Such restrictions must satisfy three con-
ditions to be enforceable: (1) they must be “justified without
reference to the content of the regulated speech,”8 (2) they
must be “narrowly tailored to serve a significant governmen-
tal interest,” and (3) they must “leave open ample alternative
channels for communication of the information.” Id. In apply-
ing this three-pronged test to the five rules challenged at bar,
we review the district court’s grounds for summary judgment
de novo. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000)
(en banc).
8
A rule failing the content-neutrality threshold must withstand strict
scrutiny: “For the State to enforce a content-based exclusion it must show
that its regulation is necessary to serve a compelling state interest and that
it is narrowly drawn to achieve that end.” Perry, 460 U.S. at 46 (emphasis
added).
214 BERGER v. CITY OF SEATTLE
III
A
We begin with Berger’s challenge to the permit require-
ment. Rule F.1 states that any person wishing to conduct a
street performance must obtain a $5 annual permit from the
Director. This rule dovetails with the badge requirement in
Rule F.1, which mandates that a badge “shall be worn or dis-
played by the performer in plain view at all times during a
performance.” Although we address the permit and badge
requirements separately, we note that their purposes are inter-
twined. See infra, note 13.
Berger argues that the permit rule fails all three prongs of
the test for a reasonable time, place, or manner restriction.
The district court held that the requirement passed the first
prong of the test but failed the second: the rule was content-
neutral but was not sufficiently tailored to a significant gov-
ernmental interest. Granting summary judgment to Berger on
that ground, the district court never reached the third prong of
the test.
1
[3] To determine whether a rule is content neutral, “we do
not make a searching inquiry of hidden motive; rather we look
at the literal command of the restraint.” Menotti v. City of
Seattle, 409 F.3d 1113, 1129 (2005). “The principal inquiry
in determining content neutrality, in speech cases generally
and in time, place, or manner cases in particular, is whether
the government has adopted a regulation of speech because of
disagreement with the message it conveys.” Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989). A licensing statute
lacks content neutrality if it burdens only certain messages or
if it imposes a burden on all messages, but allows officials
unchecked discretion to treat messages differently. The
Supreme Court’s decisions in Cox v. New Hampshire, 312
BERGER v. CITY OF SEATTLE 215
U.S. 569 (1941), Poulos v. New Hampshire, 345 U.S. 395
(1953), and Thomas v. Chicago Park District, 534 U.S. 316
(2002), apply this principle and offer useful guidance.9
In Cox, the Supreme Court affirmed the convictions of five
Jehovah’s witnesses who had violated a state statute mandat-
ing a license to conduct a “parade or procession” on a public
street. 312 U.S. at 570. The Court clarified that the state could
enact a legitimate licensing system to ensure “comfort or con-
venience in the use of streets” but could not allow licensing
officials to use the system as a means of content censorship.
Id. at 577. Finding “no evidence that the statute ha[d] been
administered otherwise than in the fair and non-
discriminatory manner which the state court [ ] construed it to
require,” the Court read the statute to be content neutral. Id.
at 577. The court concluded that the licensing scheme was a
valid “exercise of local control over the use of streets for
parades and processions.” Id. at 578.
In Poulos, the Supreme Court reiterated that the First
Amendment does not preclude permit requirements. There,
the Court examined a city ordinance that stated: “No theatri-
cal or dramatic representation shall be performed or exhibited
and no parade or procession upon any public street or way,
and no open air public meeting upon any ground abutting
thereon shall be permitted unless a license therefor shall first
be obtained from City Council.” Id. at 397 n.2 (internal quota-
tion marks omitted). Although the ordinance allowed the city
council to charge for parades, processions, or open air public
meetings up to $300 per day, and had been applied to bar reli-
9
Berger gives rather short shrift to these cases, instead relying upon our
decision in Grossman v. City of Portland, 33 F.3d 1200 (1994). We ren-
dered our decision in Grossman without the benefit of the Supreme
Court’s decisions in Thomas and Watchtower Bible, and cited neither Cox
or Poulos in our analysis. We consider the light shed by our decision in
Grossman in our later application of doctrine to the particular facts and
permit scheme at bar, because Berger argues that Grossman offers a bind-
ing analogy. See infra pp. 226-27.
216 BERGER v. CITY OF SEATTLE
gious expression, the Court concluded that the licensing
requirement was a valid “ministerial, police routine for adjust-
ing the rights of citizens so that the opportunity for effective
freedom of speech may be preserved.” Id.
Again the Court upheld a permit requirement in Thomas,
534 U.S. 316. At issue was a municipal park ordinance requir-
ing a permit to be obtained prior to any “public assembly,
parade, picnic, or other event involving more than fifty indi-
viduals.” 534 U.S. at 319 (internal quotation marks omitted).
The claim in that case turned upon whether the city had to
enact certain procedural safeguards, set forth in Freedman v.
Maryland, 380 U.S. 51 (1965), to ensure that the ordinance
did not foster censorship.10 The political activists bringing suit
argued that the procedural safeguards applied to all licensing
restrictions.11 The Court, however, held that “Freedman is
inapposite because the licensing scheme at issue here is not
subject-matter censorship but content-neutral time, place, and
manner regulation of the use of a public forum.” Id. at 322.
The Court’s explanation bears lengthy quotation:
We have never required that a content-neutral per-
mit scheme regulating speech in a public forum
adhere to the procedural requirements set forth in
10
The Court “held [in Freedman] that a film licensing process must con-
tain certain procedural safeguards in order to avoid constituting an invalid
prior restraint: “(1) any restraint prior to judicial review can be imposed
only for a specified brief period during which the status quo must be main-
tained; (2) expeditious judicial review of that decision must be available;
and (3) the censor must bear the burden of going to court to suppress the
speech and must bear the burden of proof once in court.” Id. at 321 (cita-
tions omitted).
11
Berger makes much of the fact that the Thomas decision dealt with a
rule restricting expressive activity by groups of fifty-or-more persons. But
the Seattle Center’s permit requirement is aimed at performances intended
to gather an audience and thus addresses crowd concerns as well. More-
over, the Court upheld licensing requirements that applied to individuals
in Poulos, 345 U.S. 395, and Cox, 312 U.S. 569. The size of the affected
group of speakers is not dispositive.
BERGER v. CITY OF SEATTLE 217
Freedman. “A licensing standard which gives an
official authority to censor the content of a speech
differs toto coelo from one limited by its terms, or by
nondiscriminatory practice, to considerations of pub-
lic safety and the like.” Niemotko v. Maryland, 340
U.S. 268, 282 (1951) (Frankfurter, J., concurring in
result). “[T]he [permit] required is not the kind of
prepublication license deemed a denial of liberty
since the time of John Milton but a ministerial,
police routine for adjusting the rights of citizens so
that the opportunity for effective freedom of speech
may be preserved.” Poulos v. New Hampshire, 345
U.S. 395, 403 (1953). Regulations of the use of a
public forum that ensure the safety and convenience
of the people are not “inconsistent with civil liberties
but . . . [are] one of the means of safeguarding the
good order upon which [civil liberties] ultimately
depend.” Cox v. New Hampshire, 312 U.S. 569, 574
(1941). Such a traditional exercise of authority does
not raise the censorship concerns that prompted us to
impose the extraordinary procedural safeguards on
the film licensing process in Freedman.
Thomas, 534 U.S. at 322-23 (footnote and parallel citations
omitted). The Thomas Court noted that constitutional con-
cerns would arise if a permit requirement granted “unduly
broad discretion in determining whether to grant or deny a
permit,” and thus allowed the state to “favor or disfavor
speech based on its content.” Id. at 323. But the statute in
Thomas granted no such discretion, and the Court upheld it.
[4] Guided by these precedents, we must decide whether
Rule F.1 discriminates based on content. Berger argues that
the rule does so because it “single[s] out persons who choose
to exercise their First Amendment rights through the medium
of performance arts.” The district court correctly rejected this
argument. None of the challenged rules—the permit require-
ment, the bar on active solicitation, the designation of specific
218 BERGER v. CITY OF SEATTLE
locations, or the captive audience rule—burdens expressive
activity based on “disagreement with the message” of the per-
former. Contrary to Berger’s argument, a rule does not dis-
criminate based on content simply because it restricts a
certain “medium” of communication. A “regulation that
serves purposes unrelated to the content of expression is
deemed neutral, even if it has an incidental effect on some
speakers or messages but not others.” Ward, 491 U.S. at 791.
We are satisfied that the rules meet the first prong of the test
for a valid time, place, or manner restriction speech.
2
We turn to the second prong of the test. A rule is narrowly
tailored if it “promotes a substantial government interest that
would be achieved less effectively absent the regulation.”
United States v. Albertini, 472 U.S. 675, 689 (1985).12 Berger
disputes the significance of the city’s interests, and also con-
tends that the rule does not match the city’s asserted aims to
reduce territorial disputes among performers, deter patron
harassment, and facilitate the identification and apprehension
of offending performers.13
12
The Court has used the terms “significant” and “substantial” inter-
changeably to describe the government’s prerequisite interest. See, e.g.,
Ward, 491 U.S. at 799 (citing the need for a “substantial government inter-
est,” and then referring to it as a “significant government interest” a few
sentences later).
13
Berger’s reference to identification as an aim of the permit require-
ment underscores the interplay between the badge and permit require-
ments, because identification is facilitated through the badge requirement
—not the permit requirement alone. Without the badge requirement, the
permit requirement would not increase the ability of patrons to identify
offending street performers, and thus would lose much of its deterrence
and enforcement effects. Likewise, without the permit requirement, the
badge requirement would never be invoked. We could, of course, imagine
a permit system without a correlating badge requirement, or vice versa,
but we confine our review to the facts and rules at hand.
BERGER v. CITY OF SEATTLE 219
[5] “As a general matter, it is clear that a State’s interest in
protecting the ‘safety and convenience’ of persons using a
public forum is a valid governmental objective.” Heffron v.
Int’l Soc’y of Krishna Consciousness, Inc., 452 U.S. 640, 650
(1981). Here, the district court noted the Seattle Center
authorities enacted the permit requirement after encountering
“chronic” territorial disputes between performers and threats
to public citizens by street performers. Testimony from Randy
Douglas, a Seattle Center Emergency Services Department
Employee, recited some of the troubles:
Before the performer rules went into effect . . . there
were approximately 3 or 4 complaints by performers
against other performers per week. If Magic Mike
[Berger] was here, we could expect one or more
from him . . . . The general complaints by performers
against other performers would be ‘that is my spot
and he can’t be there’ and/or ‘that performer is doing
what I am doing and they won’t move.’ The general
complaints by the tenants against performers usually
concerned too much noise or blocking access.
These complaints show that street performances posed a
threat to the city’s interests in maintaining order in the Seattle
Center and providing harassment-free facilities. See Thomas,
534 U.S. at 322 (upholding a “permit system . . . [that was
aimed] not to exclude communication of a particular content,
but to coordinate multiple uses of limited space, to assure
preservation of the park facilities, to prevent uses that [we]re
dangerous, unlawful, or impermissible under the Park Dis-
trict’s rules, and to assure financial accountability for dam-
age”). We are satisfied that the city’s permit scheme was
designed to further valid governmental objectives.
We turn next to Berger’s claim that the permit requirement
is overbroad because it restricts all street performances, but
not all street performances are likely to cause harm. Noting
that street performances have led to numerous territorial dis-
220 BERGER v. CITY OF SEATTLE
putes and patron complaints, the city defends its decision to
place special requirements on such activities, and asserts that
the permit scheme addressed “the exact source of the evil.”
Members of the City Council of L.A., et al. v. Taxpayers for
Vincent, 466 U.S. 787, 808 (1984).
[6] We agree with the city that the permit requirement was
not overbroad. The requirement affected only a specific form
of activity, which had generated documented concerns for
patrons and Seattle Center staff. Although the permit require-
ment affected all street performers, and not only those proven
to be disruptive, the city was not required to wait for problems
to arise or to speculate as to which performers would pose
greater threats. In fact, attempts to discriminate among per-
formers in granting permits could well have destroyed the
content neutrality of the permit scheme. A “regulation will not
be invalid simply because a court concludes that the govern-
ment’s interest could be adequately served by some less-
speech-restrictive alternative.” Ward, 491 U.S. at 799-800. A
permit requirement for all street performances does not
exceed the scope warranted by the city’s interests in order and
accountability.14
14
Contrary to Berger’s argument, the permit requirement is not invalid
under the reasoning in Cox v. City of Charleston, 416 F.3d 281 (4th Cir.
2005), as Berger contends. In Charleston, the Fourth Circuit deemed
invalid an ordinance that made illegal “a small meeting of individuals who
gather on the sidewalk . . . to hand out religious tracts without first obtain-
ing a permit, even if their expression does nothing to disturb or disrupt the
flow of sidewalk traffic.” Id. at 286. Berger argues that Charleston deems
unconstitutional any law that restricts the speech activities of “ ‘groups as
small as two or three.’ ” (quoting Charleston, 416 F.3d at 285). In fact, the
Charleston court expressly “decline[d] Cox’s invitation to announce a
numerical floor below which a permit requirement cannot apply.”
Charleston, 416 F.3d at 286. The Charleston court invalidated the statute
on a different basis—that the city failed to establish “why burdening such
expression [wa]s necessary to facilitate its interest in keeping its streets
and sidewalks safe, orderly, and accessible.” Id. Charleston simply under-
scores the need for an adequate relationship between the challenged
restrictions and the problems they are intended to avoid.
BERGER v. CITY OF SEATTLE 221
The Seattle Center’s permit rule is not comparable to the
overbroad and untailored licensing ordinance invalidated by
the Court in Watchtower Bible and Tract Society of New York,
Inc. v. Village of Stratton, 536 U.S. 150 (2002).15 There, the
Court invalidated an ordinance requiring any solicitor or can-
vasser to obtain prior permission before going on private
property to promote a cause and to carry a permit on his or
her person.16 536 U.S. at 155. The Court found that the permit
scheme unduly broad and without relationship to a valid gov-
ernment objective.
The dissent argues that we have “badly misread[ ] Charleston.” Dissent
at 254 n.6. However, the dissent’s note only reaffirms our interpretation.
Id. (“It emphasized that any ‘legislative body’ crafting a permit require-
ment ‘should tailor that requirement to ensure that it does not burden small
gatherings posing no threat to the safety, order, and accessibility of streets
and sidewalks.’ ”). The quote cited by the dissent shows that the court in
Charleston did not create a rule based on individuals or large groups but
based on the groups’ or individuals’ effect on “safety, order, and accessi-
bility of streets and sidewalks.” Id.
15
Berger did not contend that Watchtower should guide our analysis,
and his brief stated: “At most, Watchtower supports the district court’s
determination that it was not necessary to reach the issue [of the validity
of the badge requirement] where the permit system has been invalidated.”
However, the case helps illuminate the sort of licensing scheme that would
exceed constitutional bounds and provides an apt contrast with the Seattle
Center’s permit scheme.
16
The Court found it “unnecessary” to determine whether a lower stan-
dard of review would apply to a restriction on private property than in a
public forum. See Watchtower, 536 U.S. at 164. Chief Justice Rehnquist
assailed the majority on this score: “It is not clear what test the Court is
applying, or under which part of that indeterminate test the ordinance
fails.” Id. at 175 (Rehnquist, C.J., dissenting). “The Court suggests that
[the city’s] regulation of speech warrants greater scrutiny [than that
applied to restrictions in public forums in Ward, 491 U.S. at 791, and
Thomas, 534 U.S. at 122]. But it would be puzzling if regulations of
speech taking place on another citizen’s private property warranted greater
scrutiny than regulations of speech taking place in public forums. . . .”
Watchtower, 536 U.S. at 176.
222 BERGER v. CITY OF SEATTLE
But this case presents different concerns. Street perfor-
mances do not carry the same “historical importance of door-
to-door canvassing and pamphleteering as vehicles for the dis-
semination of ideas.” Id. at 163. No evidence suggests that the
Seattle Center’s permit requirement “imposes an objective
burden on some speech of citizens holding religious or patri-
otic views” or shows “a significant number of persons whose
religious scruples will prevent them from applying for such a
license.” Id. at 168.17 Most importantly, the permit scheme at
bar bears a clear relationship to, and furthers, significant gov-
ernmental interests, whereas the ordinance in Watchtower
bore no relation to the municipality’s stated purposes of fraud
prevention and privacy. See id. at 169-70 (noting that crimi-
nals would likely ignore the permit requirement, as they did
other aspects of the law, and carrying a permit would not
make solicitors less intrusive). Finally, the Seattle Center does
not have a rule that will satisfy the same purposes, as did the
village in Watchtower. See id. at 169 (noting that another rule
allowed residents to post “No Solicitation” signs and made it
a crime to solicit despite such signs18). We conclude that
Watchtower does not support invalidation of the permit
scheme at bar.19
17
This chilling effect was corroborated by the statements of the Jeho-
vah’s Witnesses objecting to the ordinance. Berger offers no evidence that
street performers faced similar impediments, and he never argues that he
had a moral or religious objection to obtaining a permit, as he did through
2004.
18
Chief Justice Rehnquist pointed out in dissent that this rule might lead
to far greater limits on speech, because it allowed citizens to “cut off door-
to-door communication altogether” with the support of criminal sanction.
Id. at 181 (Rehnquist, C.J., dissenting).
19
Berger’s attempt to invoke other cases in which the Court invalidated
licensing schemes does not assist him, for the rules at issue in those cases
permitted content-based censorship. In Cantwell v. Connecticut, 310 U.S.
296 (1940), the Court invalidated a statute requiring prior approval by the
secretary of the public welfare council before solicitation “for any alleged
religious, charitable, or philanthropic cause.” Id. at 301. The statute gave
enormous discretion to the secretary to “determine whether such cause is
BERGER v. CITY OF SEATTLE 223
[7] Nor does the permit requirement fail the narrow tailor-
ing test for underinclusiveness.20 Berger argues that the rule
does not match its purpose because it “targets street perform-
ers while allowing large crowds engaged in other types of
expression to gather without a permit.” However, narrow tail-
oring does not require comprehensiveness: a rule is “narrowly
tailored” as long as the significant interest of the government
a religious one or is a bona fide object of charity or philanthropy and con-
forms to reasonable standards of efficiency and integrity.” Id. at 302. The
Court decided that the statute violated the free exercise clause of the First
Amendment because it constituted a “censorship of religion.” Id. at 305.
Likewise, in Schneider v. New Jersey, 308 U.S. 147 (1939), the Court
deemed unconstitutional a content-based statute that subjected prospective
speakers to “the power of a police officer to determine, as a censor, what
literature may be distributed.” Id. at 163. And in Village of Schaumburg
v. Citizens for a Better Environment, 444 U.S. 620 (1980), the Court inval-
idated an ordinance requiring permits for solicitation and barring any such
solicitation “by charitable organizations that do not use at least 75 percent
of their receipts for ‘charitable purposes.’ ” Id. at 623. The Court did not
object to the provision requiring permits for organizations that passed the
75-percent threshold; rather, the Court found unjustifiable the rule denying
permits to organizations that did not pass such threshold. The Court did
not object to the fact that a permit was required, but to the reasons for
which permits could be denied. See id. at 640 (“The 75-percent require-
ment plainly is insufficiently related to the governmental interests asserted
in its support to justify its interference with protected speech.”). Citing its
prior rulings in Cantwell, Jamison v. Texas, 318 U.S. 413 (1943), and
Schneider, the Court reiterated that “ ‘a state m[ay] not prevent the collec-
tion of funds for a religious purpose by unreasonably obstructing or delay-
ing their collection.’ ” Village of Schaumburg, 444 U.S. at 631.
The statutory rules rejected in Cantwell, Schneider, Jamison, and Vil-
lage, can be distinguished easily from the Seattle Center’s permit require-
ment, which does not support such content-based censorship.
20
The district court disagreed, holding the rules to be underinclusive
because they did not reach activities with “a greater impact on Seattle
Center patrons and tenants” and to be overbroad because they barred more
expression than “they were intended to reach.” The court did not reach
Berger’s final argument, that the rules foreclose all avenues of communi-
cation “because no performances are permitted anywhere at the Seattle
Center without a permit.”
224 BERGER v. CITY OF SEATTLE
“would be achieved less effectively absent the regulation.”
Albertini, 472 U.S. at 689. The Supreme Court “frequently
has upheld underinclusiveness classifications on the sound
theory that a legislature may deal with one part of a problem
without addressing all of it,” Erznoznik v. City of Jacksonville,
422 U.S. 205, 215 (1975),21 and this court has rejected the
argument that “a city’s means to achieve its significant inter-
est of restoring and maintaining security can never be nar-
rowly tailored absent a policy completely efficacious in
eliminating [the targeted evil],” Menotti, 409 F.3d at 1134
n.41. In this case, the city has demonstrated the efficacy of its
revised Campus Rules with testimony that “[a]fter the per-
former permit rules went into effect, Emergency Service
rarely received any complaints regarding performers.” The
disturbances that did occur were largely caused by Berger and
were reported by Seattle Center employees.22 Although the
Director might have drafted a rule sweeping more widely, so
as to avoid disturbances caused by other forms of activity
also, he was not required to impose further restrictions on
expression. Because the permit requirement furthers signifi-
cant governmental interests, it is not impermissibly underin-
clusive.
[8] We also find that the permit scheme does not grant the
Director undue discretion so as to allow content censorship.
As in Poulos, the permit scheme functions in a “ministerial,”
and “routine” fashion. 345 U.S. at 403. We see no signs of
21
In Erznoznik, the Court noted that the “presumption of statutory valid-
ity, however, has less force when a classification turns on the subject mat-
ter of expression,” 522 U.S. at 215, and deemed unconstitutional a
content-based bar on cinematic expressions containing nudity as part of “a
regulation designed to protect traffic.” 522 U.S. at 216. The rules applied
by the Court in Erznoznik provide guidance, but the facts at bar are
demonstrably different: the Campus Rules are content-neutral and care-
fully fitted to the problems they seek to address.
22
Seattle Center authorities reported that since the adoption of the Cam-
pus Rules, their Emergency Services Unit filed eight incident reports
involving Berger, one of which resulted in the suspension of his permit.
BERGER v. CITY OF SEATTLE 225
censorship in the text or application of Rules F.1 and F.2.
These rules do not permit discretion in issuing permits; a per-
mit “is issued upon [the] Director’s satisfaction that the infor-
mation set forth in the application is true, the applicant has
executed a statement stating that he or she will comply with
applicable law and all provisions of the Seattle Center rules,
and has paid the applicable application fee.” (emphasis
added). The Director has no power to reject a completed per-
mit application. While the Director may terminate or revoke
a permit, even that decision depends upon the satisfaction of
objective criteria or requires 7-day notice.
Berger offers absolutely no evidence revealing content cen-
sorship, and we will not presume that the city will read or
apply its permit rule to allow such censorship, especially at
the summary judgment stage. See Cox, 312 U.S. at 577
(rejecting a claim of impermissible discretion where “[t]here
is no evidence that the statute has been administered other-
wise than in the fair and non-discriminatory manner which the
state court has construed it to require”). Indeed, the evidence
shows that the Director has granted permits even to street per-
formers with a history of complaints against them, such as Ber-
ger.23 Like the valid licensing schemes in Poulos, Cox, and
Thomas, the Seattle Center’s permit requirement is narrowly
tailored to further valid governmental objectives and suffers
neither from a discretion-based potential for censorship nor
from overbreadth.
Like the Supreme Court’s precedents, our own caselaw
confirms that we have no basis to invalidate the permit
requirement at bar. The district court’s reliance on Grossman
v. City of Portland, 33 F.3d 1200 (1994), was misplaced. In
Grossman, we struck down a content-neutral permit scheme
23
The record reveals that “[i]n the year prior to the permit system, 70%
of [the] performer complaints came from Michael Berger . . . and/or were
in regards to him,” yet Berger received a permit to perform in the Seattle
Center the very next year.
226 BERGER v. CITY OF SEATTLE
that led to the arrest of a man engaged in a “small, peaceful
anti-nuclear protest involving six to eight people, in Port-
land’s Waterfront Park.” Id. at 1202. The ordinance in Gross-
man rendered it “unlawful for any person to conduct or
participate in any organized entertainment, demonstration, or
public gathering, or to make any address, in a park without
the written permission of the [Parks Commissioner].” Id. at
1204. The ordinance imposed a 7-day waiting period for such
permits, thus “requir[ing] potential speakers, demonstrators
and entertainers to plan their activities well in advance, pre-
cluding such persons from using the parks for more spontane-
ous speech activity.” Id. at 1204. We concluded that this rule
was overbroad. Id.
The Seattle Center’s routine permit requirement can be eas-
ily distinguished from the sweeping scheme in Grossman.
First, the Seattle Center’s permit rule simply applies to street
performances, designed to engage members of the public,
which may lead to congestion problems or altercations with
members of the public, as the record reveals. The Seattle Cen-
ter’s permit rule imposes no waiting period, and permits are
issued routinely. The rule does not require the sort of advance
planning necessitated by Portland’s restriction on speech
activities, let alone limit all forms of speech.
Berger attempts to analogize the ordinance in Grossman
with the permit scheme at bar by arguing that the rule targets
spontaneous expression that does not pose a threat to order or
patron convenience. In addressing this claim, we note that the
Seattle Center has not implemented its permit requirement to
limit spontaneous expression, and the city assets that “the per-
formance permit requirement should be construed to regulate
only performances aimed at attracting an audience, not spon-
taneous singing or dancing engaged in solely for personal
expression.” We give due consideration to the government’s
interpretation and past application of its rule. “Administrative
interpretation and implementation of a regulation are, of
course, highly relevant to our analysis, for ‘[i]n evaluating a
BERGER v. CITY OF SEATTLE 227
facial challenge to a state law, a federal court must . . . con-
sider any limiting construction that a state court or enforce-
ment agency has proffered.’ ” Ward, 491 U.S. at 795-96.
[9] In Thomas, the Court recognized that the text of the rule
might be interpreted to give undue discretion to deny a per-
mit, but accepted the Park District’s assertion that permits
would not be denied for “inadequacies that, under the circum-
stance, do no harm to the policies furthered by the application
requirements.” 534 U.S. at 781; see also United States v.
Buckland, 289 F.3d 558, 564 (9th Cir. 2002) (en banc) (“The
Supreme Court instructs us that ‘every reasonable construc-
tion must be resorted to, in order to save a statute from uncon-
stitutionality.’ ” (quoting Hooper v. California, 155 U.S. 648,
657 (1895)). We read the rule to apply only to conduct aimed
at attracting an audience—the sort of conduct that the city
cites as the source of its concerns. In light of those interests,
and the limited scope of the restriction, we are satisfied that
Rule F.1 is narrowly tailored to significant governmental
interests and avoids the constitutional infirmities discerned in
Portland’s overbroad licensing scheme in Grossman.
3
[10] Finally, we consider Berger’s argument that “[t]he per-
mit requirement does not provide ample alternative channels
for communication of a performer[’]s message because no
performances are permitted anywhere at the Seattle Center
without a permit.” Our precedent notes that “[i]n the ‘ample
alternatives’ context, the Supreme Court has made clear that
the First Amendment requires only that the government
refrain from denying a ‘reasonable opportunity’ for communi-
cation.” Menotti, 409 F.3d at 1141. Under the Campus Rules,
a performer may, without a permit, “convey his or her mes-
sage verbally while walking through the campus,” and “like
228 BERGER v. CITY OF SEATTLE
all other Center visitors, may leaflet, gather signatures, and
make speeches without any permit.”24
[11] It is clear that “ample alternative channels” do not
require the exact same means of expression in the exact same
location. In One World One Family v. City & County of
Honolulu, 76 F.3d 1009 (9th Cir. 1996), we upheld a Waikiki-
wide ban on the sale of message-bearing t-shirts on sidewalks.
We concluded that vendors could locate off the sidewalks and
thus retained “a number of alternative means of disseminating
their message, each of which allows them to communicate
effectively with people on the sidewalks.” Id. at 1014-15.
Although the ban was sweeping—precluding such sidewalk
sales throughout Waikiki—we found the rule to be valid:
“The broader the ban, of course, the more difficult it is to
prove that the remaining means of communication are ade-
quate. Difficult, however, doesn’t mean impossible.” Id. at
1015-16. We conclude that the permit requirement satisfies
the third prong of the test for a reasonable time, place, or
manner restriction on speech, and must be upheld.
B
Turning now to Berger’s challenge to the badge require-
ment, we have already noted the intertwined nature of the per-
mit and badge requirements. See supra note 13. The district
court did not rule on the validity of the badge requirement
24
The permit requirement is less limiting than the rule we upheld in
Menotti, which barred access to portions of downtown Seattle during a
World Trade Center conference. This court found ample alternatives for
expression in that case, noting that protestors could demonstrate in nearby
zones, such as “across from the Washington State Convention & Trade
Center, the Paramount Theater, three out of four major hotels where WTO
delegates were staying, and throughout the rest of downtown Seattle.”
Menotti, 409 F.3d at 1141. Similarly, the Campus Rules do not limit per-
formances outside the Seattle Center, and, unlike in Menotti, access to
internal locations remains possible if the performer obtains a routinely
issued permit.
BERGER v. CITY OF SEATTLE 229
because it deemed the permit requirement—of which the
badge requirement is a part—to be invalid. Because we con-
clude that the permit requirement satisfies the three conditions
for a time, place, or manner restriction on speech, we must
ask also whether the badge requirement imposes some addi-
tional burden that tips the balance against the rule.
[12] Berger contends that the badge requirement generates
a further impediment to free expression because “[p]erformers
often wear costumes, which are a carefully-crafted part of the
speech itself,” and “[t]he integrity of this part of the message
may be damaged by a clip-on identification badge.” Berger
rests this claim upon the Court’s decision in Buckley v. Ameri-
can Constitutional Law Foundation, 525 U.S. 182 (1999), in
which the Court invalidated a Colorado regulation “requiring
[voter-]initiative-petition circulators to wear identification
badges.” Id. at 198.
[13] At first sight, the Seattle Center’s badge requirement
appears similar to that deemed invalid in Buckley: the Seattle
Center’s interest in enforcing its permit requirement can be
likened to Colorado’s aim of “enabl[ing] the public to iden-
tify, and the State to apprehend, petition circulators who
engage in misconduct.” Id. at 199. However, a closer reading
of Buckley defeats the analogy. Unlike Seattle Center’s
content-neutral badge requirement, Colorado’s badge require-
ment targeted speech based upon its message. See id. at 210
(Thomas, J., concurring) (“[T]he regulation must be evaluated
under strict scrutiny [because] the category of burdened
speech is defined by its content—Colorado’s badge require-
ment does not apply to those who circulate candidate peti-
tions, only to those who circulate initiative or referendum
proposals.”). Moreover, Colorado’s interest in avoiding voter
fraud was not clearly furthered by the badge requirement and
provided no “sufficient cause” to limit the traditional right to
anonymous political speech. Id. at 200-01.
[14] The Buckley Court’s protection of anonymous political
speech does not require us to discern an inviolable right to
230 BERGER v. CITY OF SEATTLE
anonymous artistic performances, although Berger argues that
“[s]treet performers may be just as concerned with their pub-
lic anonymity as street preachers, political protestors or any-
one else.” The importance of avoiding political retribution
does not compare to a street performer’s desire to maintain
the “integrity” of his costume. In Buckley, the Court received
evidence that the badge requirement chilled speech because it
exposed voter-initiative circulators to “the recrimination and
retaliation that bearers of petitions on ‘volatile’ issues some-
times encounter.” 525 U.S. at 199. Berger cites no similar evi-
dence of a chilling effect and does not assert that his own
speech was chilled by the permit requirement. Even if we
were to conclude that the badge requirement might cause
some performers to avoid the Seattle Center, this consider-
ation is outweighed by the Seattle Center’s significant inter-
ests in enforcing its permit rule and ensuring accountability of
performers. Because the badge requirement applies coexten-
sively with the permit rule, our earlier analysis explains that
adequate alternative avenues of expression remain, in which
no badges need be worn. We conclude that the badge require-
ment, like the permit rule, passes all three prongs of the test
for a valid time, place or manner restriction.
C
We next consider Berger’s challenge to the Seattle Center’s
rule limiting the mode of solicitation by street performers.
Rule F.3.a states that “[n]o performer shall actively solicit
donations, for example by live or recorded word of mouth,
gesture, mechanical devices, or second parties,” but allows
performers to seek donations “passively in an instrument case
or other receptacle provided for that purpose by the perform-
er,” which “may include a written sign that informs the public
that such donations are sought.” Again, Berger argues that the
rule is content-based because it burdens only street perform-
ers. We have explained above why this argument must be reject-
ed.25 See supra pages 214-18. Berger also argues that the rule
25
We explained that a burden on a mode of expression alone does not
constitute content discrimination against a message. The same applies to
BERGER v. CITY OF SEATTLE 231
is not narrowly tailored because it “targets a particular group
of people and not a particular problem such as aggressive beg-
ging.” The district court agreed, holding that Rule F.3.a could
not satisfy the second prong of the restriction test: “As with
the permit requirement, . . . the active solicitation ban is not
narrowly tailored. . . . Even more so than with the Rules’ per-
mit requirement, the mismatch between the solicitation ban’s
aim and its reach is fatal to its constitutionality.”
Our narrow tailoring analysis starts with a view of the
city’s interests. The city asserts that Seattle Center authorities
created Rule F.3.a in response to patron complaints regarding
“pushy or overbearing performers,” and tailored the rule to
ensure the convenience of patrons and to avoid performances
that might interfere with pedestrian traffic or Seattle Center
exhibitions. Our caselaw confirms that an “interest in protect-
ing the safety and convenience of persons using a public
forum is a valid government objective” and “[g]overnment
interests in promoting public safety and the orderly movement
of pedestrians, and in protecting the local merchant economy
are also substantial.” Perry v. L.A. Police Dept., 121 F.3d
1365, 1371 (9th Cir. 1997); cf. Heffron, 452 U.S. at 652 (not-
ing that the State has a significant interest in “avoiding con-
gestion and maintaining the orderly movement” of patrons at
a public fair).
[15] We have previously upheld bans on certain forms of
solicitation.26 In ACORN v. City of Phoenix, 798 F.2d 1260
(9th Cir. 1986), we addressed a city ordinance which prohib-
the solicitation rule, which applies to all performers regardless of their
message. Berger cites no evidence suggesting content discrimination in the
text or application of Rule F.3.a (barring active solicitation by street per-
formers).
26
Rule F.3.a does not completely ban solicitation, for it restricts only
active solicitation, while expressly allowing passive solicitation. Cases
such as Perry v. Los Angeles, 121 F.3d 1365, 1371 (9th Cir. 1997) (invali-
dating a total bar on solicitation for certain groups), do not apply.
232 BERGER v. CITY OF SEATTLE
ited fund solicitation from occupants of vehicles stopped at
intersections, in order to ensure road safety. The court noted
that solicitation may cause problems not engendered by other
forms of speech:
Although appeals for funds are indeed protected
under the First Amendment as speech-related con-
duct, Village of Schaumburg v. Citizens for a Better
Environment, 444 U.S. 620, 632 (1980), solicitation
goes beyond pure speech in the response it demands
on the part of the audience. Unlike oral advocacy of
ideas, or even the distribution of literature, success-
ful solicitation requires the individual to respond by
searching for currency and passing it along to the
solicitor.
Id. at 1268-69 (internal quotations omitted). Although we
acknowledged that the city possibly could have “served its
interests with a less restrictive means by prohibiting only
solicitation that disrupted traffic,” it found the ordinance “nar-
rowly tailored to address legitimate traffic safety concerns.”
Id. at 1270; see also Doucette v. City of Santa Monica, 955
F. Supp. 1192, 1205 (C.D. Cal. 1997).
Although not binding in this Circuit, the D.C. Circuit’s
decision in ISKCON of Potomac, Inc. v. Kennedy, 61 F.3d
949 (D.C. Cir. 1995), provides helpful analysis. There, the
court invalidated a Park Service ban on in-person solicitation.
Although it noted that “the Supreme Court recently recog-
nized that solicitation is a more intimidating and disruptive
form of expression than leafletting,” id. at 955, and agreed
that the Park Service has a legitimate interest in avoiding “the
ills associated with runaway solicitation,” id. at 956, the court
found the ban on in-person solicitation overbroad: “[W]e can-
not see how allowing in-person solicitations within the permit
area will add to whatever adverse impact will result from the
special event itself.” Id. The court emphasized the narrow
nature of its holding: “Our holding allows only those individ-
BERGER v. CITY OF SEATTLE 233
uals or groups participating in an authorized demonstration or
special event to solicit donations within the confines of a
restricted permit area such as that assigned to ISKCON. It
does not require the Park Service to let rampant panhandling
go unchecked.” Id.
[16] Unlike the solicitation ban in ISKCON, which bore an
at-most attenuated relationship to the interests of the Park Ser-
vice, the Seattle Center’s bar on active solicitation directly
addresses the problems of heckling and patron disturbance
revealed in prior complaints. Our reasoning in ACORN and
the considerations noted by the D.C. Circuit in ISKCON sup-
port a conclusion that the Seattle Center’s bar on active solici-
tation was narrowly tailored to the city’s significant interest
in protecting the Center’s patrons from disruptive and
unwanted advances.
[17] In addition to being content neutral and narrowly tai-
lored, Rule F.3.a leaves open ample alternative avenues for
solicitation. Contrary to Berger’s contention that street per-
formers “are completely barred from requesting donations,”
the Campus Rules expressly provide: “Donations for perfor-
mances may be accepted passively in an instrument case or
other receptacle provided for that purpose by the performer.
The receptacle may include a written sign that informs the
public that such donations are sought.” The bar only reaches
active solicitations, which were the source of the complaints
brought to the attention of Seattle Center authorities. Perform-
ers retain ample means to solicit funds without harassing
patrons. This rule satisfies the third and final prong of the test
and is a reasonable restriction on expression.
D
We next turn to Berger’s constitutional challenge to Rule
F.5, which confines street performances to sixteen “desig-
nated locations on the Seattle Center grounds,” and specifies
these by reference to a map provided with the permit applica-
234 BERGER v. CITY OF SEATTLE
tion. The map shows the designated locations and states the
“maximum number” of persons who may perform simulta-
neously at each. These locations include five positions close
to the Space Needle, as well as other locations beside popular
sites such as the Fun Forest Amusement Park, the Center
House, the Mura Amphitheatre, the Key Arena, the Memorial
Stadium, the International Fountain, and exhibition halls. The
rules impose a limit of two performers at most sites. Berger
argues that the rule limiting locations fails all three prongs of
the test for a valid restriction on speech.
The district court held that Rule F.5 was content neutral
and “designed to confine street performers to certain areas to
mitigate their adverse impact on Seattle Center patrons.”
Although this aim constituted a significant governmental
interest, the district court nevertheless held that “[t]he City’s
failure to narrowly tailor its restriction on where street perfor-
mances can occur is also fatal to its constitutionality.” At the
crux of the district court’s decision was its view that the rule
was underinclusive: “As with the permit requirement, the City
presents no justification for these restrictions in light of the
freedom of groups of up to 99 people who are not street per-
formers to congregate whenever they please.”
[18] We share the district court’s view that Rule F.5 is con-
tent neutral. The rule does not permit Seattle Center authori-
ties to discriminate based on a performer’s message, and we
have explained that a rule barring a certain medium of expres-
sion is not a content-based limitation.
We cannot accept the district court’s narrow tailoring anal-
ysis, however. Supreme Court precedent instructs us to the
“general effect” of the rule and not to invalidate the rule “sim-
ply because there is some imaginable alternative that might be
less burdensome on speech.” Albertini, 472 U.S. at 689. Here,
the city’s rule allowed the Director to confine street perfor-
mances to locations that did not pose concerns for pedestrian
traffic and enabled Seattle Center security personnel to focus
BERGER v. CITY OF SEATTLE 235
on areas in which audiences might be gathering. As the dis-
trict court noted, the rule helped mitigate the adverse impact
of street performances.
[19] The rule cannot be deemed overbroad. Street perform-
ers limited by the rule could still perform in numerous well-
located sites, including those near some of the most popular
Seattle Center attractions. See supra p. 234. The rule therefore
can be distinguished readily from the location limitation we
held invalid in Kuba v. 1-A Agricultural Association, 387
F.3d 850 (9th Cir. 2004). There, a state-owned performance
facility, the “Cow Palace,” had enacted a rule restricting pub-
lic demonstrators to three “free expression zones.” Id. at 854.27
All three zones lay on the perimeter of the parking lot and
were at least 200 feet way from the main doors to the Cow
Palace. Id. We found the first and second prongs of the time,
place, or manner test to be satisfied. Id. at 858 (holding that
the location limitation furthered the significant governmental
interests of ensuring “pedestrian and traffic safety” and “pre-
venting traffic congestion”). But we objected to the breadth of
the rule, which confined demonstrators to distant locations
unfrequented by pedestrians and thus “ma[de] communication
‘virtually impossible.’ ” Id. at 854. Such scope lacked proper
justification: we discerned no evidence that “handing out leaf-
lets and carrying signs on the parking lots and walkways out-
side [the facility] would cause . . . congestion and danger.” Id.
at 859. For that reason we held that “[t]he present policy,
which relegates communication activity to three small, fairly
peripheral areas, does not ‘sufficiently match’ the stated inter-
est of preventing congestion, and so is not narrowly tailored
to serve the government’s interest.” Id. at 862 (citation omit-
ted).
We carefully explained that our decision in Kuba was con-
sistent with the Supreme Court’s decision in Heffron, 452
27
Although the Cow Palace was not a traditional public forum such as
we encounter at bar, the same time, place, or manner test applied.
236 BERGER v. CITY OF SEATTLE
U.S. 640. In Heffron, the Court upheld a rule confining exhib-
itors to certain fixed locations within the Minnesota State Fair
against a First Amendment challenge brought by religious
persons wishing to distribute and to sell faith-based literature
and solicit donations at non-designated locations. Id. at 656.28
The Court found that the rule was content-neutral and sup-
ported the government’s significant interest in “avoiding con-
gestion and maintaining the orderly movement of fair
patrons.” Id. at 652. The Court also explained that the rule sat-
isfied the third prong of the time, place, and manner test
because it “does not exclude [the religious group] from the
fairgrounds, nor does it deny that organization the right to
conduct any desired activity at some point within the forum.
Its members may mingle with and orally propagate their
views. The organization may also arrange for a booth and dis-
tribute and sell literature and solicit funds from that location
on the fairgrounds itself.” Id. at 655.29
The facts in Kuba led us to a different conclusion, however.
There, we contrasted the circumstances that led the Court to
uphold the location limitation in Heffron with the facts before
us in Kuba. “The organization and layout of the Minnesota
State Fair encourage[d] milling about rather than purposeful
movement toward a single central location,” and “the fair-
28
The grounds of the Minnesota State Fair “comprise[d] a relatively
small area of 125 acres, the bulk of which is covered by permanent build-
ings, temporary structures, parking lots, and connecting thoroughfares.”
Heffron, 452 U.S. at 651. To that extent, the grounds mirror those of the
Seattle Center—unsurprisingly, as the latter was built for the 1962 Seattle
World’s Fair. See Don Duncan, Meet Me at the Center (Seattle Ctr. Found.
1992). And although the Heffron court ultimately stated that the “Minne-
sota State Fair is a limited public forum,” 452 U.S. at 656, its application
of the time, place, or manner test offers guidance at bar. And the Heffron
Court did not state that the fair was a limited public forum until after
reaching all three prongs of the test for a valid time, place, or manner
restriction on speech.
29
The Heffron Court found these means of communicating a message to
be sufficient in a limited public forum. It did not rule on whether these
avenues would be sufficient in a traditional public forum.
BERGER v. CITY OF SEATTLE 237
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 empha-
sized that “the number of visitors and exhibitors at the Minne-
sota State Fair . . . was vastly greater than the number of
visitors and exhibitors at the [facility in Kuba]” and the park-
ing 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 peo-
ple to be avoided.” Id. at 863 (citing Heffron, 452 U.S. at 655
n.16).
The contrast between Heffron and Kuba illustrates the dis-
tinction between permissible and illegitimate location restric-
tions. 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 heav-
ily 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 lea-
fletting and carrying signs, a street performance seeks to
gather an audience, and thus even a single performer can gen-
erate 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 conges-
tion and traffic danger if allowed to demonstrate in any area
other than the free expression zones”). Nearly ten million visi-
238 BERGER v. CITY OF SEATTLE
tors visit the Seattle Center each year. While the number of
street performers is small—testimony suggests that typically
only 5-8 performers seek street performance permits even
during peak hours—such activities create a legitimate concern
for crowd control. Given that the rule still permitted street
performances in sixteen locations near popular Seattle Center
sites, we conclude that the rule was not overbroad.
We also reject the conclusion of the district court that the
rule was underinclusive. “The validity of such regulations
[that ‘control the time, place, and manner of expression’] does
not turn on a judge’s agreement with the responsible decision-
maker concerning the most appropriate method for promoting
significant government interests.” Id. at 688-89. As we have
noted, a time, place, or manner restriction on speech is suffi-
ciently tailored if it “promotes a substantial government inter-
est that would be achieved less effectively absent the
regulation.” Id. at 689. The city was not required to restrict all
possible expressive activities that would lead to the same sort
of problems in order to create a valid rule to ensure order.
While the district court highlighted the fact that larger groups
conducting activities are not similarly confined, we note that
such groups face other restrictions designed to preserve order.
For example, Rules E.1-E.15 require licenses for activities
that require props or amplification, as most large-scale gather-
ings would.30 The fact that Rule F.5 simply addresses a spe-
cific kind of potential congestion hazard and threat to patron
convenience does not render it underinclusive. Because the
rule serves a significant government objective and is neither
overbroad nor underinclusive, we hold that it satisfies the sec-
ond prong for a valid restriction on expression.
30
Berger does not challenge those rules or dispute their role in ensuring
order in activities not covered by Rule F.5. We consider these other provi-
sions relevant to show that the government has not selectively targeted
certain activities for restriction, however, applying “the cardinal rule to
construe provisions in context.” United States v. Balsys, 524 U.S. 666, 673
(1998).
BERGER v. CITY OF SEATTLE 239
[20] Applying the third prong, we conclude that Rule F.5
also leaves alternative modes of expression available in cases
where too many performers request the same site. The rule
sets forth sixteen locations (a number of which were added
pursuant to street performer requests).31 The record shows that
only 5-8 performers have sought permits at the same time—
even during peak times. Berger does not offer any evidence
that a performer has been unable to perform in the Seattle
Center due to this rule. His claim amounts to a demand for the
right to perform in the Seattle Center at whatever venue he
chooses. That claim cannot be reconciled with the city’s sig-
nificant interest in maintaining order and patron convenience.
A venue requirement is not a prohibition on speech, but a rea-
sonable limit designed to further significant government inter-
ests.32 Rule F.5 passes all three prongs of the test for a valid
time, place, or manner restriction on speech.
E
Having determined that rules F.1, F.2, F.3.a, and F.5 pass
constitutional review, we turn, finally, to Berger’s claims
against Rule G.4, which applies to all Seattle Center entrants.
This rule prohibits speech activities “within thirty (30) feet of
any captive audience; or within thirty (30) feet of any building
entrance; or within thirty (30) feet of any person engaged in
any scheduled event that is sponsored or co-sponsored by the
Seattle Center.” The rules exempt city employees and
licensed concessionaires. Berger asserts that the “ ‘captive
31
During the period of public comment prior to final enactment of the
2002 Campus Rules, see supra note 1, the proposed rule was amended to
offer more locations for street performances, in response to street per-
former requests. This underscores the Seattle Center’s efforts to tailor nar-
rowly the rule to impose a reasonable limitation to conserve its interests,
without unnecessarily hindering expression.
32
Furthermore, persons like Berger can express their messages to
patrons throughout the Seattle Center in other ways; Rule F.3.a only
applies if they want to conduct street performances that may gather an
audience.
240 BERGER v. CITY OF SEATTLE
audience’ ” rule cannot stand because the doctrine permitting
such restrictions on speech “is not applicable in a traditional
public forum.” The district court invalidated the “captive
audience rule” based on its conclusion that “[n]o court has
recognized the desire to protect captive audiences in a tradi-
tional public forum as a significant government interest.”33
We look to our precedent on this issue. In Kuba, we
addressed the validity of a policy limiting demonstrators to
“free expression zones,” as described above. This policy also
prohibited “discussions” between demonstrators and patrons
“within 75 feet of the entrance and within the fire lane.” Id.
at 862. Because we held that the entire policy was not nar-
rowly tailored, we never specified the possible validity of the
75-foot rule in isolation. And the case at bar represents very
different considerations. Unlike the mobile audience in Kuba,
which could easily avoid the demonstrators, the Seattle Center
patrons waiting in line for events cannot move away without
sacrificing their enjoyment of Seattle Center facilities. They
are more like the “captive audience” on the streetcar in Leh-
man v. City of Shaker Heights, 418 U.S. 298 (1974), who can-
not escape unless they give up the ride.
[21] As the Court has made clear, the “captive audience”
doctrine does not require literal captivity or inability to
escape. In Madsen v. Women’s Health Center, Inc., 512 U.S.
752 (1994), the Court considered women entering an abortion
clinic to be “held ‘captive’ by medical circumstance” and
therefore unable easily to escape demonstrators outside the
clinic. Id. at 769. At issue was a state court ruling that barred
abortion protestors from expressive activities “within 36 feet
33
The court cited Erznoznik, 422 U.S. at 209, Heffron, 452 U.S. 640,
650 n.13 (1981), and Kuba, 387 F.3d at 861 n.10. These cases do not sup-
port its ruling. In Heffron, the Court expressly declined to discuss a cap-
tive audience argument. 452 U.S. at 650 n.13. In Erznoznik, the Court
rejected a paternalistic “captive audience” rule advanced to support a
content-based bar on nude films. 522 U.S. at 209.
BERGER v. CITY OF SEATTLE 241
of the property line of the clinic as a way of ensuring access
to the clinic.” Id. at 768. The Court “h[e]ld that the 36-foot
buffer zone around the clinic entrances and driveway burdens
no more speech than necessary to accomplish the governmen-
tal interests at stake,” but that the “portion of the buffer zone
[on private property along the back and side of the clinic] . . .
burdens more speech than necessary to protect access.” Id. at
771. Just as in Madsen, Seattle Center Patrons could choose
to turn around and go home. But the Seattle Center offers
desirable facilities for public entertainment, relaxation, and
edification. Its authorities had the right to protect captive
audiences seeking to enjoy such functions without being
forced to choose between enduring harassment and leaving
the facilities.
The 30-foot limitation imposed by the Seattle Center
authorities to accomplish this purpose was reasonable and tai-
lored to the interests at stake. It included only the spaces prox-
imate to captive patrons—a far smaller area than fell within
the 75-foot ban in the Cow Palace in Kuba. As the district
court noted, “[t]he general captive audience restriction targets
visitors’ complaints about unwanted harangues and solicita-
tions while waiting in line for Seattle Center events.”34 More-
over, the captive audiences protected by the rule do not
compare to the mobile visitors to the Cow Palace, who could
have avoided demonstrators by walking another way without
losing access to the facilities. The Seattle Center was not
unreasonable in concluding that such zone was necessary to
protect visitors confined to a fixed location while waiting to
enjoy its facilities.
[22] The third prong of the test is satisfied by this rule as
well. Rule G.4 does not disallow verbal communications to
34
We see no evidence that these same concerns are generated by conces-
sionaires, and because a rule will not fail because it addresses some, but
not all, possible sources of harassment, the rule does not fail because
authorized vendors are permitted to offer concessions to waiting patrons.
242 BERGER v. CITY OF SEATTLE
non-captive audiences or at a greater distance than 30 feet.
The captive audience rule does not silence a message in the
Seattle Center, but only prevents it from being expressed in
locations where it would pose a serious threat to order and to
the convenience and peace of patrons.35 The Seattle Center’s
content-neutral captive audience rule was sufficiently tailored
35
The dissent criticizes our use of Madsen in upholding the 30 feet limi-
tation on permit holders. Dissent at 262. The Dissent argues that the “pri-
vacy and self-determination interests involved in” Madsen are inapplicable
in this case. Id. With all due respect, just as the Supreme Court has recog-
nized a privacy interest that gives rise to a right to abortion, as against the
government, see Planned Parenthood v. Casey, 505 U.S. 833 (1992), it
has also recognized that the First Amendment of the U.S. Constitution
protects a person’s interest in expression. See Boy Scouts of America v.
Dale, 530 U.S. 640, 647-48 (2000) (quoting Roberts v. United States Jay-
cees, 468 U.S. 609, 622 (1984), for the legal principle “that ‘implicit in
the right to engage in activities protected by the First Amendment’ is ‘a
corresponding right to associate with others in pursuit of wide variety of
political, social, economic, education, religious and cultural ends’ ”).
Here, for example, the 30 feet permit limitation protects families and
friends from having their intimate associations interfered with. See Dale,
530 U.S. at 646-47. If the government can limit the religious expression
of protestors on public sidewalks to promote the “privacy and self-
determination interest” of women seeking abortions and abortionists, there
is no reason it cannot legitimately protect others wishing to exercise their
interest in private and public expression in intimate association with fam-
ily and friends at a picnic. See supra at 239-43.
The Dissent also cites to Schenck v. Pro-Choice Network of Western
New York, 519 U.S. 357, 378-79 (1997) (“[I]t would be quite difficult for
a protester who wishes to engage in peaceful expressive activities to know
how to remain in compliance with the injunction.”), in support of its prop-
osition that the 30 feet limitation should be struck down as an impermissi-
ble “floating buffer zone.” Dissent at 265, 266. The Dissent’s reliance to
Schenck is misplaced. First, unlike Schenck, where the “floating buffer
zone” applied to the whole area that was available to street counselors to
share their message, Schenck, 519 U.S. at 377-79, the buffer zone in this
case is limited only to certain areas, not to all of the Seattle Center. See
supra at 239-42. Second, there is no indication in this case that the buffer
zone has prevented the performers from sharing their message with indi-
viduals at the Seattle Center, unlike in Schenck where the “floating buffer
zone” effectively prevented any communication by counselors. Schenck,
519 U.S. at 378-79.
BERGER v. CITY OF SEATTLE 243
to its significant interest in preventing patron harassment and
disturbances, did not exclude more speech than necessary, and
left open ample alternatives for communication. The captive
audience rule may stand.
IV
Berger raises a different but related challenge based on the
Equal Protection Clause of the Fourteenth Amendment. He
addresses this claim only to the permit requirement, and
argues that the rule creates impermissible “distinctions among
groups of people.” Because the logic of this argument applies
equally to all street-performance-specific rules, we construe
this argument as a challenge not only to Rule F.1 (the permit
and badge requirement), but also to Rule F.2 (the permit terms
and conditions), Rule F.3.a (the active solicitation bar), and
Rule F.5 (the locations limitation).
[23] We agree with Berger that the proper standard can be
found in the Supreme Court’s decision in City of Cleburne v.
Cleburne Living Center, 473 U.S. 432 (1985). There, the
Court stated that “[t]he general rule is that legislation is pre-
sumed to be valid and will be sustained if the classification
drawn by the statute is rationally related to a legitimate state
interest.” City of Cleburne, 473 U.S. at 440. A restriction
faces strict scrutiny only if it targets a suspect class or a fun-
damental right. See id. This court has specifically addressed
the relationship between equal protection and free speech. In
Rubin v. City of Santa Monica, 308 F.3d 1008 (9th Cir. 2002),
we rejected an equal protection challenge to a rule barring a
voter from designating “peace activist” as his occupation. We
noted that the case required both “free speech and equal pro-
tection analyses.” Id. at 1019. We concluded: “Neither ‘non-
incumbents’ nor ‘peace activists’ is a suspect class. Therefore,
rational basis review is appropriate unless the restriction
unconstitutionally burdens a fundamental right, here, the right
to free speech. Because we conclude that the restrictions do
not unconstitutionally burden Rubin’s right of free speech, we
244 BERGER v. CITY OF SEATTLE
find that neither do they violate his Equal Protection right.”
Id.
[24] Like the non-incumbents and peace activists in Rubin,
street performers are not a suspect class. See Cleburne, 473
U.S. at 443 (explaining the limited set of “suspect” classifica-
tions and declining to expand the limited set to mental retar-
dation). Thus, as in Rubin, the only question is whether the
Campus Rules violate the constitutional right to free speech.36
As explained above, the rules satisfy the standards for valid
time, place, or manner restrictions on speech. Like the ballot
rule in Rubin, the Campus Rules “further an important gov-
ernmental interest, . . . are non-discriminatory, are viewpoint-
neutral, and . . . do not severely limit a candidate’s First
Amendment rights. Therefore, they are not unconstitutional
on their face . . . .” Rubin, 308 F.3d at 1019.
V
In sum, Rules F.1, F.2, F.3.a, F.5, and G.4 satisfy the
requirements for valid restrictions on expression under the
First Amendment. Such content neutral and narrowly tailored
rules, which leave open ample alternatives for communica-
tion, must be upheld. The rules also survive rational basis
review under the Fourteenth Amendment.
The order granting summary judgment to Berger is
REVERSED. The case is REMANDED to the district court
for further proceedings consistent with this opinion.
36
The relevant constitutional right should not be characterized as a “con-
stitutionally protected right to perform magic tricks, create balloon sculp-
tures, and receive voluntary donations in a public park,” as erroneously
suggested by the magistrate who considered Berger’s 1996 complaints.
BERGER v. CITY OF SEATTLE 245
Volume 2 of 2
246 BERGER v. CITY OF SEATTLE
BERZON, Circuit Judge, dissenting in part and concurring in
part:
“It is offensive — not only to the values protected by the
First Amendment but to the very notion of a free society —
that in the context of everyday public discourse a citizen must
inform the government of her desire to speak to her neighbors
and then obtain a permit to do so.” Watchtower Bible and
Tract Society of New York, Inc. v. Village of Stratton, 536
U.S. 150, 165-66 (2002). Today the majority endorses just
such a scheme, requiring individuals to obtain permits from
the government before they may engage in communicative
activity. Worse, it does so in the context of a public park, a
traditional public forum, with regard to which “the govern-
ment bears an extraordinarily heavy burden when it seeks to
regulate free speech.” A.C.L.U. of Nevada v. City of Las
Vegas, 466 F.3d 784, 791 (9th Cir. 2006) (internal quotation
marks omitted) (“ACLU II”), because parks have, “time out of
mind, have been used for purposes of assembly, communicat-
ing thoughts between citizens, and discussing public ques-
tions.” Hague v. C.I.O., 307 U.S. 496, 515 (1939); see also
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.
37, 46 (1983).
Nor does the majority stop there: It goes on to declare that
public park-goers, using this quintessential public forum, are
a captive audience, justifying still more restrictions on speech.
Yet, “as society becomes more insular in character, it
becomes essential to protect public places where traditional
modes of speech and forms of expression can take place.”
ACLU II, 466 F.3d at 791 (emphasis added). The majority’s
opinion, far from obeying this admonition, validates a regula-
tion that prevents communication between citizens in a public
BERGER v. CITY OF SEATTLE 247
park, making this case part of a “nationwide trend toward the
privatization of public property,” id., transforming formerly
public spaces into private, heavily-regulated domains.
The case concerns the Seattle Center, a public park —
although the majority obscures this basic fact through a
euphemism, calling the Center an “entertainment zone.”
Indeed, Seattle Center, in the heart of Seattle, declares itself
“the nation’s best gathering place,” and a “public space open
to everyone.” Despite these boasts, the Seattle Center has
imposed a raft of speech restrictions on park-goers and street
performers. These restrictions were adopted, we are told, to
reduce space conflicts between street performers and to
reduce the frequency of incidents where performers behave
abusively towards their audiences. Some of the Seattle Cen-
ter’s regulations forward this substantial public purpose with-
out unnecessarily burdening protected speech, see Ward v.
Rock Against Racism, 491 U.S. 781, 791 (1989) (internal quo-
tation marks omitted), and I am willing to assume that these
regulations are valid. But at least two of them go far further,
working to turn the Seattle Center into a sterile theme park.
For the truth is this: Although one might think otherwise
from reading the majority opinion, the permitting scheme the
majority approves serves no discernible purpose whatever,
other than to identify speakers to the government in advance
of their speech. There is no limit on the number of permits,
and although another part of the rule designates certain loca-
tions at the Seattle Center for street performers generally, the
permits do not assign any particular location at the Seattle
Center to any particular street performer. So there is simply
no crowd or traffic control function served by the permitting
scheme.
There is no case anywhere, as far as I can tell, approving
a speech permitting scheme of this kind — that is, one appli-
cable to single individuals and having nothing to do with allo-
cating scarce public space among competing users. So,
248 BERGER v. CITY OF SEATTLE
although this particular permitting scheme may seem innocu-
ous, the principle that American citizens ordinarily do not
need government permission to speak in public places is a
precious one, and one the majority entirely ignores. I there-
fore dissent from Part III.A of the majority opinion, which
upholds the permit scheme. Because a requirement that per-
formers holding permits wear badges depends upon the exis-
tence of the permit scheme, I also dissent from Part III.B,
which upholds the badge requirement.
That the administrators of the Seattle Center fundamentally
misunderstand the nature of public parks is made even clearer
by the park’s astonishing “captive audience” rule, which the
majority upholds in Part III.E. The idea of ordinary park-
goers as, in any sense, “captive” is deeply offensive to the
First Amendment. Yet, the Seattle Center has imposed a
broad “captive audience” rule which bans any speech — artis-
tic or political — within thirty feet of a line of people, or even
of people eating lunch in a seating area, because these groups
are supposedly “captive.” Worse, because the rule’s applica-
tion depends on the particular location of the audiences it
“protects,” the rule creates just the sort of system of “floating”
speech restrictions, hard to enforce and harder to obey, that
the Supreme Court struck down in Schenck v. Pro-Choice
Network of Western New York, 519 U.S. 357, 377-80 (1997).
I cannot agree that this radical extension of captive audience
law into a context in which it does not apply, and in a manner
already held to be impermissible, is constitutional.
Only those parts of the Seattle Center’s regulations that
merely channel speech to prevent conflicts between perform-
ers, and between performers and the public, are even arguably
constitutional: A regulation designating first-come, first-
served areas for street performances1 and a ban on active solicita-
1
It may be that there could be valid as-applied challenges to this rule.
“There is a strong First Amendment interest in protecting the right of citi-
zens to gather in traditional public forum locations that are critical to the
BERGER v. CITY OF SEATTLE 249
tion.2 I therefore concur only in III.C and III.D. of the major-
ity opinion, which uphold those regulations.3
content of their message, just as there is a strong interest in protecting
speakers seeking to reach a particular audience.” Galvin v. Hay, 374 F.3d
739, at 749-53 (9th Cir. 2004). Because the “location of speech, like other
aspects of presentation, can affect the meaning of communication and
[therefore] merit First Amendment protection,” id. at 751, the fixed perfor-
mance locations could impair the meaning of some performances designed
to be seen in particular areas of the Seattle Center. The present plaintiff,
however, brings no such as-applied challenge.
2
Even the active solicitation regulation is somewhat constitutionally
suspect. In ACLU II, we held that it is “beyond dispute that solicitation is
a form of expression entitled to the same constitutional protections as tra-
ditional speech” and struck down a solicitation ban in Las Vegas. 466 F.3d
at 792. We held that Las Vegas’s total ban on “messages that contain
soliciting content” was a content-based restriction. Id. at 795-97. Doing so,
we approvingly quoted Justice Kennedy’s concurring opinion in Interna-
tional Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992)
(“ISKCON”) in which he explained that if a “solicitation regulation pro-
hibited all speech that requested contribution of funds” he would strike it
down. ACLU II, 466 F.3d at 795 (quoting ISKCON, 505 U.S. at 704 (Ken-
nedy, J., concurring). Because I understand the Seattle Center’s regulation
to ban only certain aggressive manners of donation requests, rather than
requests for donations generally, and because I believe the Seattle Center
has demonstrated that the regulation narrowly addresses its problems with
aggressive solicitation by street performers, I concur, albeit somewhat
dubiously, in upholding this regulation.
3
I do not concur in Part IV because the majority’s holding is partially
premised on its conclusion, which I reject, that the permit requirement
(and its associated badge requirement) do not violate the First Amend-
ment. See Maj. Op. at 243-44. I agree, however, that street performers are
not a suspect class for the purposes of the Equal Protection Clause, see
City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439-42 (1985)
(discussing suspect classes). Although the permit requirement does burden
a fundamental right, it is not a “class-based denial of a particular right,”
Pyler v. Doe, 457 U.S. 202, 217 n. 15 (1982) (emphasis added) and so
does not implicate equal protection. I also agree with the majority that,
because the active solicitation bar and location designation rule do not vio-
late the First Amendment, they also do not violate the Equal Protection
Clause.
250 BERGER v. CITY OF SEATTLE
I. The Permit Requirement
The majority’s description of the permit requirement is a
triumph of misdirection, upholding a speech registration
scheme but relying upon cases that instead uphold much less
troublesome systems of speech coordination.
In general,“the government may impose reasonable restric-
tions on the time, place, or manner of protected speech, pro-
vided the restrictions are justified without reference to the
context of the regulated speech, that they are narrowly tai-
lored to serve a significant governmental interest, and that
they leave open ample alternative channels for communica-
tion.” Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989) (internal quotation marks omitted). Under this stan-
dard, even in a public forum, governments may regulate to
allow all voices to be heard through “coordination of use,”
Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d
1022, 1036 (9th Cir. 2006) — by, for instance, ensuring that
a parade does not march right through a street festival or
unduly interfere with street traffic. Such “coordination of use”
is, in other words, a significant governmental interest.
As the general time, place, or manner standard indicates,
however, this authority to regulate speech is limited even
when there is a legitimate coordination purpose to be served:
“The government’s right to limit expressive activity in a pub-
lic forum is sharply circumscribed” and our review is search-
ing and careful. ACLU II, 466 F.3d at 791 (quoting S.O.C.,
Inc. v. County of Clark, 152 F.3d 1136, 1145 (9th Cir. 1998));
see also Santa Monica Food not Bombs, 450 F.3d at 1035-36
(9th Cir. 2006) (same); A.C.L.U. v. City of Las Vegas, 333
F.3d 1092, 1098 (9th Cir. 2003) (“ACLU I”) (same); Foti v.
City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998) (same);
Grossman v. City of Portland, 33 F.3d 1200, 1204-05 (9th
Cir. 1994) (same). We are particularly skeptical of coordina-
tion permit requirements which are, after all, “prior restrain-
t[s]” on speech and therefore raise serious concerns over
BERGER v. CITY OF SEATTLE 251
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 coordi-
nation 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 Cen-
ter 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 per-
formers 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 per-
former. 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 allo-
cation 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
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 abso-
lutely no coordination of use purpose. The majority has cited
none. Given that speech registration is, by its nature, only jus-
tifiable 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 Port-
land, 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 appli-
cants to register seven days in advance of any gathering, “de-
scribing the details of the planned event” in their applications.
Id. at 1204. Although we “sympathize[d] with the City’s con-
cern 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 defi-
nition far more narrowly than its text, to apply essentially only to profes-
sional 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 well-
established 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 con-
struction.
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 regula-
tions 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.
254 BERGER v. CITY OF SEATTLE
groups, where the burden placed on park facilities and the
possibility of interference with other park users is more sub-
stantial.”) (emphasis in original).
Conversely, we have never countenanced the imposition of
permits for individual speakers in public fora. Indeed, the pos-
sibility that the ordinance in Grossman could reach “the
actions of single protestors,” was one of the reasons we struck
that ordinance down as unconstitutional. Id.; see also Cox v.
City of Charleston, South Carolina, 416 F.3d 281, 285 (4th
Cir. 2005) (“[U]nflinching application” of a permit require-
ment “to groups as small as two or three renders it constitu-
tionally infirm.”).6
In brief, then, we and other courts have expressed deep
skepticism that a permit can ever be appropriate when applied
to small groups or individuals. We have never approved such
a permitting scheme, nor has any other court, as far as I am
aware. Yet, the Seattle Center adopted, and the majority
upholds, a permitting program that does not have a use coor-
dination purpose, that applies on its face to individuals,7 and
that imposes a prior restraint on speech with no purpose other
6
The majority badly misreads Charleston, Maj. Op. at 220 n. 14, hold-
ing the case irrelevant because it did not “announce a numerical floor
below which a permit requirement cannot apply.” Charleston declined to
do so because it felt that writing a hard rule was a legislative, not a judicial
task, not because it countenanced permits for individual speech. Charles-
ton, 416 F.3d at 286. The court was very clear that a permit ordinance
attaching to small groups of individuals would be overbroad. See id. (col-
lecting cases). It emphasized that any “legislative body” crafting a permit
requirement “should tailor that requirement to ensure that it does not bur-
den small gatherings posing no threat to the safety, order, and accessibility
of streets and sidewalks.” Id. at 287.
7
Although street performers do, of course, hope to draw crowds, this
goal is of little moment to the analysis. The individual protestors in Gross-
man and Charleston also undoubtedly hoped to attract crowds of people
eager to learn their views. We have, in any event, emphasized that coordi-
nation permits are only appropriate for far more substantial crowds than
any street performer is likely to draw at one time. See Santa Monica Food
Not Bombs, 450 F.3d at 1043 n. 17 (“Whether 150 people is the outside
[lower] limit for a permitting requirement is a question we do not decide,
except to caution that a substantially lower number may well not comport
comfortably with the limited governmental interests at play in public parks
and open spaces.”).
BERGER v. CITY OF SEATTLE 255
than to make government surveillance and control of the
speakers easier.8 It is hard to think of a more obviously uncon-
stitutional measure in the First Amendment context.
The majority, nonetheless, relies on a few coordination
cases to uphold this offensive registration scheme. Its cases,
Cox v. New Hampshire, 312 U.S. 569 (1941), Poulos v. New
Hampshire, 345 U.S. 395 (1953), and Thomas v. Chicago
Park Dist., 534 U.S. 316 (2002), say nothing about speech
registration. All three cases upheld coordination programs,
not registration schemes. That these cases upheld permits
actually serving a “time, place, or manner”-related purpose
does not suggest that we should uphold a permitting program
that does no such thing.
Cox, for example, upheld a permit requirement for parades,
public meetings, and “theatrical or dramatic representation[s]”
which required each permit application to “specify the day
and hour” of the planned performance. Cox, 312 U.S. at 571
& n. 1. The permits in Cox thus genuinely did regulate the
“time, place and manner” of parades and demonstrations “in
relation to the other proper uses of the streets.” Id. at 576.
In Poulos, a coordination requirement was also at issue. See
Poulos, 345 U.S. at 398 n. 2 (setting forth a “day and hour”
coordination requirement for permits). Once again the Court
upheld the rule, this time in the context of religious services,
because the requirement “merely call[ed] for the adjustment
8
That the Seattle Center does not require a permit for each separate
speech act but one permit to cover a year’s speech does not ameliorate
these concerns. Permit issuance is not instant and, even if it were, anyone
who wishes to spontaneously perform in the park must seek out the permit
office (if it is open) and fill out forms before they speak. The absence of
a specified waiting period does not alter the practical reality that every
permit application system imposes some delay.
256 BERGER v. CITY OF SEATTLE
of the unrestrained exercise of religions with the reasonable
comfort and convenience of the whole city.” Id. at 405.9
Thomas also considered a permitting-based coordination
plan that conformed permitted activities with other uses and
with general park purposes, see Thomas, 534 U.S. at 379 n.
1 (setting forth permit requirements), and upheld the permit
requirement because it was designed “to coordinate multiple
uses of limited space,” among other related purposes. Id. at
322. Thomas was decided quite narrowly and does not pro-
vide carte blanche for park permits, despite what the majority
suggests. Most importantly, because the petitioners in Thomas
challenged the ordinance in question only on the ground that
it conferred allegedly over-broad permitting discretion, the
Court did not consider other concerns that might be relevant
here. See id. at 322 & n. 3 (“Petitioners do not argue that the
Park District’s ordinance fails to satisfy other requirements of
our time, place, and manner jurisprudence. . . .”). We have
twice recognized Thomas’s limited scope. See Santa Monica
Food Not Bombs, 450 F.3d at 1037 n. 15 (“Appellants here
challenge the ‘other’ requirements of time, place, and manner
jurisprudence, explicitly not at issue in Thomas.”); Galvin v.
Hay, 374 F.3d 739, 747 n. 5 (9th Cir. 2004) (“The Court in
Thomas considered only a challenge to the breadth of official
discretion” and not other issues.).
In short, the law is clear: Permits for speech in traditional
public fora are disfavored and may be upheld only when they
are tailored to serve a coordination of use purpose, including
traffic and safety concerns, created by large groups of individ-
uals engaging in First Amendment-protected activity. Incon-
sistency with this long-established principle is enough to
show that the Seattle Center’s rule is fundamentally flawed.
9
I note that Cox and Poulos both antedated the development of the mod-
ern standard for approving time, place, and manner restrictions in public
fora, and may not be fully controlling after that development.
BERGER v. CITY OF SEATTLE 257
But there is more. The Supreme Court has consistently
struck down speech registration permitting programs in the
one context, solicitation of private homes, where they have
been put in place with some regularity. There is no interest
present here greater than those the Court deemed insufficient
to support speech registration in that context.
In Watchtower Bible, for instance, a small Ohio village
required solicitors to register before going door to door to pre-
vent fraud, protect residential privacy, and prevent crime. 536
U.S. at 168-69. The Supreme Court struck down the registra-
tion scheme because it imposed significant First Amendment
burdens, including a heavy burden on spontaneous speech. Id.
at 166-67. Watchtower Bible was not the first time that the
Court had struck down license requirements for solicitors on
First Amendment grounds. See also Cantwell v. State of Con-
necticut, 310 U.S. 296, 306-07 (1990) (striking down license
requirement for religious solicitation); Village of Schaumburg
v. Citizens for a Better Environment, 444 U.S. 620, 638-39
(1980) (striking down solicitation permit requirement);
Schneider v. State of New Jersey, 308 U.S. 147, 152 (1939)
(striking down permitting scheme for all forms of solicita-
tion). Speech in public parks is no less protected than speech
on citizens’ doorsteps. And the Seattle Center asserts no
stronger interests than those forwarded in the house-to-house
solicitation context.
That, as the majority notes, Maj. Op. at 222-23 n. 19, the
permitting schemes in Cantwell, Schneider, and Village of
Schaumburg had other fatal flaws does not alter the funda-
mentally “offensive” character of speech registration require-
ments. Watchtower Bible, 536 U.S. at 166. As Watchtower
Bible made clear in the context of political or religious
speech, but with reasoning that surely extends to artistic expres-
sion,10 even if the issuance of permits were purely a “ministe-
10
Just as door-to-door canvassing plays an “important role in our consti-
tutional tradition of free and open discussion,” Watchtower Bible, 536
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 tradi-
tion.” Id.
I note, finally, that even if registration to identify speakers
were ever acceptable, it is, from a purely practical perspec-
tive, entirely unnecessary here. The rule targets street per-
formers, not anonymous members of the public. Such people
stake their careers on being readily identifiable, develop dis-
tinctive shows, and are frequent return visitors to their perfor-
mance sites. It would not be hard for a police officer
patrolling the Seattle Center to recognize a rogue fire-
swallower. Indeed, incident reports in the record make refer-
ence 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 per-
suasive. 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 govern-
ment 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 con-
stitutional. 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.
BERGER v. CITY OF SEATTLE 259
II. The “Captive Audience” Rule
Having simply ignored decades of First Amendment juris-
prudence to uphold the permit requirement, the majority con-
tinues its radical rewrite of free speech law in public parks by
upholding the Seattle Center’s so-called “captive audience”
rule, Rule G.4, which imposes significant limits on speech to
supposed “captives” using park facilities. If there is any audi-
ence that is definitively not captive — any group of people
who the government has no obligation or power to shield
from speech — it is the public in a traditional public forum.
It is in such places that freedom of speech is at its height and
is most zealously to be guarded.
That duty is particularly important now, when the very con-
cept of public space is under threat. “If the trend of privatiza-
tion continues . . . citizens will find it increasingly difficult to
exercise their First Amendment rights to free speech, as the
fora where expressive activities are protected dwindle.
‘Awareness of contemporary threats to speech must inform
our jurisprudence regarding public [fora].’ ” ACLU II, 466
F.3d at 791 (quoting ACLU I, 33 F.3d at 1097); see also
Grossman, 33 F.3d at 1205 n. 8 (protection of parks as open
fora is “increasingly significant now, when the extremely rich
have an enormous variety of privately-owned media through
which to reach the public” but persons of ordinary means
must rely on free fora for public debate like the parks.). The
majority displays no awareness of its duty to protect the tradi-
tional role of public parks, and still less awareness of the
basics of captive audience law.
The Seattle Center bans all “speech activities” — defined
to include “both political speech and commercial speech” —
within thirty feet “of any captive audience,” or “of any build-
ing entrance” or “of any person engaged in any scheduled
event that is sponsored or co-sponsored by Seattle Center.”
“Captive” audiences are defined as including persons “wait-
ing in line to obtain tickets or food or other goods or services
260 BERGER v. CITY OF SEATTLE
or to attend any Seattle Center event,” or “seated in any seat-
ing location where foods or beverages are consumed” (a
group which the majority assumes includes picnickers). None
of these restrictions apply to “activity conducted by City
employees or licensed concessionaires,” or pursuant to a “Se-
attle Center license or other agreement.” Members of the pub-
lic waiting in line, having lunch, or sitting or standing
anywhere near an entrance, are insulated from all speech,
except that of the Seattle Center and of those it has allowed
to speak. This prohibition is an extraordinary restriction on
the use of public space.
First, as Berger argues, the city’s preference for conces-
sionaires and licensees leads to the odd result that commercial
speech, which receives more limited First Amendment protec-
tion than political and artistic speech, is allowed and encour-
aged, while artistic and political speech is not. This result,
alone, suggests profound problems with the rule. See G. K.
Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064, 1081 (9th
Cir. 2006) (ordinance is invalid if it favors commercial speech
over noncommercial speech); Desert Outdoor Advertising,
Inc. v. City of Moreno Valley, 103 F.3d 814, 819-20 (9th Cir.
1996) (same).
Worse, the very premise of the restriction is wrong. Public
park-goers are not a protectable captive audience for constitu-
tional purposes. “The plain, if at times disquieting truth, is
that in our pluralistic society, constantly proliferating new and
ingenious forms of expression, we are inescapably captive
audiences for many purposes.” Erznoznik v. City of Jackson-
ville, 422 U.S. 205, 211 (1975) (internal quotation marks
omitted). But only in “narrow circumstances” may the gov-
ernment restrain speech to protect such audiences; “the bur-
den normally falls upon the viewer” to avert his or her eyes,
or the hearer to cover his or her ears, not upon the speaker to
be silent. Id. “The ability of government, consonant with the
Constitution, to shut off discourse solely to protect others
from hearing it is, in other words, dependent upon a showing
BERGER v. CITY OF SEATTLE 261
that substantial privacy interests are being invaded in an
essentially intolerable manner.” Cohen v. California, 403 U.S.
15, 21 (1971).
Yet the majority suggests that “Seattle Center Patrons” are
captives because the “Seattle Center offers desirable facilities
for public entertainment, relaxation, and edification” and that
therefore it “had the right to protect captive audiences seeking
to enjoy such functions without being forced to choose
[between] enduring harassment and leaving the facilities.”
Maj. Op. at 241. This argument is entirely back-to-front: The
fact that people wish to gather in a park like the Seattle Center
is precisely why protecting speech there is so important, not
a justification for limiting it. Use of the parks for public dis-
cussion and gathering has “from ancient times, been a part of
the privileges, immunities, rights, and liberties of citizens.”
Hague, 307 U.S. at 515. “It must not, in the guise of regula-
tion, be abridged or denied.” Id. at 16. Declaring, as the
majority does, that desirable gathering places must be insu-
lated from speech turns this ancient proposition on its head.
The argument also has no apparent stopping place: Why
individuals waiting in line or eating sitting down in desig-
nated areas are any more “captive” — or any more interested
in staying in the park instead of leaving — than parents
watching children in a playground, runners on a park track, or
young people tossing about a frisbee in a park field, we are
not told.12
The short of the matter is that the possibility of objection-
able speech in a public place is not a justification for limiting
speech. See Perry Educ. Ass’n, 460 U.S. at 46 (emphasizing
12
Moreover, as I discussed above, citizens are very often not free from
solicitation and pamphleteering in their own homes, yet government
restrictions on such activities are frequently invalidated. See Watchtower
Bible, 536 U.S. at 160 and n. 10 (collecting cases striking down permit
requirements for door-to-door solicitation).
262 BERGER v. CITY OF SEATTLE
the liberty of speech and discussion inherent to a traditional
public forum). Public park-goers certainly have no “substan-
tial privacy interest,” Cohen, 403 U.S. at 21, that must be
defended; they are in the public sphere. See also Lehman v.
City of Shaker Heights, 418 U.S. 298, 303-04 (1974) (adver-
tising space on public streetcars is not a “First Amendment
forum” like a “park,” and a streetcar “captive audience” is in
a situation “different from the traditional settings where First
Amendment values inalterably prevail.”). If a captive audi-
ence is to be found at the Seattle Center, such an audience
could be found in just about any public park anywhere. For
that matter, people walking down the street usually want to
get where they are going; on the majority’s rationale, they
would be “captive” also, because they have no choice but to
walk from here to there. Any such result would be deeply at
odds with our law, as it would swallow entirely the broad pro-
tection of speech in public fora.
But the majority does not only import captive audience law
into a context in which it simply does not apply. It also relies
on a wholly inapposite line of cases concerning the unique
privacy and self-determination interests involved in protecting
abortion clinics and medical facilities: The majority justifies
upholding the captive audience rule by pointing out that the
thirty-foot buffer zone the Seattle Center wishes to impose is
about the same size as the buffer zone at issue in Madsen v.
Women’s Health Center, 512 U.S. 753 (1994).
The interests involved in Madsen, however, could not be
more different than those we consider here. In that case, the
Supreme Court upheld a state court’s injunction creating a 36-
foot buffer zone around the entrances of an abortion clinic in
which picketing and demonstrating, among other activities,
were barred. Id. at 768-71. The idea that park-goers are in any
way similarly situated to the patients and doctors of an abor-
tion clinic under siege by hostile protestors, is absurd.13 The
13
Even the process by which the buffer zone was designed and upheld
in Madsen is entirely distinct. In Madsen, abusive abortion protesters were
BERGER v. CITY OF SEATTLE 263
Supreme Court has made the distinctiveness of the interests at
issue in such cases very clear. See Hill v. Colorado, 530 U.S.
703, 728-30 (2000) (upholding 8-foot regulatory buffer
around clinic entrances due to the “unique concerns that sur-
round health care facilities,” where those using the facilities
“are often in particularly vulnerable physical and emotional con-
ditions”).14 It trivializes the interests carefully balanced in
those cases to extend them in this way. Indeed, we have
already rejected such a comparison in Kuba v. 1-A Agricul-
forcing doctors and patients to run a “gauntlet” to enter an abortion clinic.
512 U.S. at 758. A district court imposed a narrow injunction to curb the
illegal behavior, which failed to solve the problem. Id. at 758-59. Only
then, after more speech-protective remedies had failed to cure the illegal
activity, did the district court impose the broader injunction that the
Supreme Court examined. Id. What we have here is not an injunction
imposed after illegal behavior but a prophylactic rule that applies to per-
fectly law-abiding individuals.
Moreover, the Supreme Court in Madsen upheld the buffer zone, cre-
ated by the broader injunction, based on the particular geography of the
clinic, 512 U.S. at 769, giving “some deference” to the state court’s famil-
iarity with the situation, and noting that the earlier, “much narrower”
injunction had failed to protect access to the clinic. Id. at 770. The injunc-
tion had been fitted to the particular circumstances, and in a context where
reproductive rights, public safety, and medical privacy all weighed in the
balance. Id. at 768-69. Those important considerations are not at issue
here, and there is no evidence that the thirty-foot buffer zone has been
carefully tailored to the particular geography of the Seattle Center.
14
Nor does the fact that Kuba, 387 F.3d at 863, struck down a 75-foot
buffer zone on speech around an exhibition hall’s entrance, along with
other restrictions, have much bearing. The majority seems to think that
because the thirty-foot rule here is smaller than the 75-foot rule in that
case, it is somehow more acceptable. Kuba provides no support for this
proposition, as it did not address whether a smaller buffer zone would
have been acceptable.
Also, context matters when analyzing speech restrictions. If, for
instance, a five foot buffer put speakers on the other side of hedges, or
down hills out of sight, it might well be unacceptable. See id., 387 F.3d
at 861-63 (carefully analyzing the relevant geography of the site at issue
in that case).
264 BERGER v. CITY OF SEATTLE
tural Ass’n, 387 F.3d 850, 861 n. 10 (9th Cir. 2004), explain-
ing that patrons of a “place of public entertainment” were not
a captive audience as in Madsen and its progeny, because they
were obviously not “particularly vulnerable,” as are the
patients and doctors in such cases.
The majority nonetheless asserts that the First Amendment
rights to intimate and expressive association recognized by
Boy Scouts of America v. Dale, 530 U.S. 640 (2000) and Rob-
erts v. United States Jaycees, 468 U.S. 609 (1984) justify sim-
ilar protections to those at issue in the Madsen line of cases.
Maj. Op. at 242 n. 35. This argument is both rife with error
and blind to the role of public parks as a location for inter-
change among citizens.
First, it is not at all clear that people “wishing to exercise
their interest in private and public expression of individuals in
intimate association with family and friends at a picnic,” as
the majority puts it, even implicate the rights at issue in Dale
and Roberts. Those cases concern two sorts of association:
“Certain intimate human relationships,” Roberts, 468 U.S. at
618, and expressive association “for the purpose of engaging
in those activities protected by the First Amendment.” Id.; see
also Dale, 530 U.S. at 647-48.15 Picnickers do not fall natu-
rally into either category (the majority appears to be melding
the two when it refers to the “expression of individuals in inti-
mate association”) unless Dale and Roberts are far more
sweeping than they have previously been understood to be.
Second, the flat ban on communication at the Seattle Center
is more extreme than the restrictions considered in the Mad-
sen line of cases. In those cases, unlike here, there was a his-
tory of aggression justifying some speech restrictions. See
15
It is also worth noting that neither Roberts nor Dale are concerned
with protecting such associations from other private parties but instead
deal with “undue intrusions by the State.” Roberts, 468 U.S. at 618; see
also Dale, 530 U.S. at 647-48.
BERGER v. CITY OF SEATTLE 265
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 cam-
paign 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 tradi-
tion of open discourse in such places is central to our constitu-
tional 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 per-
suade, 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,
266 BERGER v. CITY OF SEATTLE
337 U.S. 1, 4 (1939) (“[A] function of free speech under our
system of government is to invite dispute. It may indeed best
serve its high purpose when it induces a condition of unrest,
creates dissatisfaction with conditions as they are, or even
stirs people to anger.”). The majority’s vision of a public park
as a place regulated to protect the placid outings of “associat-
ing” citizens who are forbidden to engage in “speech activi-
ties” at all, lest someone be unsettled, is alien to the values
instinct in the First Amendment, and to the entire public
forum concept. Are two people chatting on a street corner in
an “association” that can properly be protected by preventing
a fellow citizen from offering them a handbill? Are picnickers
on the National Mall in Washington, D.C., to be so “protect-
ed”? The majority’s reading of Dale and Roberts to create
such a sweeping ability to protect “association” vitiates
speech protections in all public fora locations.
Further, even in the abortion clinic context, where speech
restrictions may be somewhat broader, the Supreme Court has
struck down a captive audience rule that bears a marked
resemblance to the one the majority upholds today. In
Schenck, the Court considered an injunction which barred
demonstrations within fifteen feet of any person or vehicle
using an abortion clinic, id. at 367, and held that this “float-
ing” buffer created an uncertain and over-broad system of
restraints on speech. 519 U.S. at 377-80. As clinic patients
moved, speech-restricted areas shifted across the landscape in
an unpredictable and, in the Court’s view, unacceptable man-
ner. Id.
The same problems are present here and are not leavened
by the clear public safety issues present in Schenck. The Seat-
tle Center’s captive audience rule applies within thirty feet of
any line, any audience, and even any group of people having
lunch in a seating area. Crowds move. As the end of a line
shifts, or a picnic table is occupied, the captive audience rule
snaps on to bar speech within thirty feet of the line or of the
picnicking park-goers. This system of shifting “speech-free”
BERGER v. CITY OF SEATTLE 267
zones is precisely the sort of capricious restraint, likely to
chill far more speech than the Seattle Center would be justi-
fied in regulating, that Schenck struck down. 519 U.S. at 377-
80.
By somehow finding a captive audience in a public park
and then endorsing a buffer zone as restrictive as that struck
down in Schenck, the majority turns the law on its head. It
does not simply abdicate its responsibility to safeguard the
rights of the public but creates dangerous new legal principles
that have no obvious stopping point. I cannot go along with
this perilous course.
III. Conclusion
The majority does not acknowledge how radically its hold-
ings alter our law, creating a legal structure which will make
it far easier to shut down discourse in public parks and other
traditional public fora. Democracies survive and grow through
public conversations among their citizens. For this reason, we
have always viewed any limitations on speech in traditional
public fora with extreme skepticism. Today’s opinion departs
from that long tradition. I respectfully dissent.