Berger v. City of Seattle ( 2009 )

BERZON, Circuit Judge:

In 2002, the City of Seattle promulgated a set of rules governing the conduct of visitors to one of its major attractions, an 80-acre public park and entertainment complex known as the Seattle Center. The new rules regulated for the first time the behavior of the Center’s street performers. We consider today the constitutional validity of some of those rules.

Among other provisions, the new rules required street performers at the Seattle Center to obtain permits before performing; set out specified locations for street performances and established a first-come, first-served rule for using the locations; allowed only passive solicitation of funds by street performers; and prohibited any communication, by street performers or anyone else, within thirty feet of visitors to the Seattle Center who are waiting in line, attending an event, or sitting, in a spot available for eating or drinking. Following the rules’ publication, “Magic Mike” Berger, a balloon artist and frequent Seattle Center performer, filed a lawsuit challenging the new regulations just outlined on the grounds that they violate his First Amendment rights. The district court agreed with Berger and so invalidated all five of the challenged rules. The City now asks us to reverse, asserting that all the regulations impose valid “time, place, or manner” restrictions on the actions of street performers and other park-goers.

For the reasons discussed below, we decline to do so. The government bears the burden of justifying the regulation of expressive activity in a public forum such as the Seattle Center. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). The City of Seattle has failed to meet this burden with respect to any of the rules challenged by Berger. We therefore affirm the district court’s grant of summary judgment to Berger, except that we remand for further factual development concerning the validity of the locational regulation.

I. Background

The Seattle Center is a central venue for Seattle’s civic, cultural, and social life. The Center’s roughly 80-acre expanse of public space attracts over ten million visitors annually. It is home to Seattle’s iconic Space Needle, and to museums, sports arenas, theaters, and a performance hall. The Center’s grounds also include twenty-three acres of outdoor public park space.

In 2002, the Seattle Center’s Director issued a revised set of regulations concerning the use of the Center, known as the Seattle Center Campus Rules (“Rules”).¹ Among other matters, the Rules govern the use of the Center’s outdoor spaces. Five of the Rules are relevant here: Rule F.l, which requires “street performers” to obtain a permit before performing at the Center and to wear a badge displaying that permit while performing; Rule F.2, which sets forth the terms and conditions for acquiring a “Street Performer Permit”; Rule F.3.a, which bars street performers from “actively solicit[ing] donations”; Rule F. 5, which limits street performances to sixteen designated locations; and Rule G. 4, which prohibits all Seattle Center visitors, other than Center employees and licensed concessionaires, from engaging in “speech activities” within thirty feet of a “captive audience.” Rule C.5 defines a “captive audience” as “any person or group of persons: 1) waiting in line to obtain tickets or food or other goods or services, or to attend any Seattle Center event; 2) attending or being in an audience at any Seattle Center event; or 3) seated in any seating location where foods or beverages are consumed.”

About a year after the Rules were promulgated, Michael Berger, a balloon artist and Seattle street performer, filed the complaint that gives rise to this appeal. In his complaint, Berger alleged that the five rules just summarized violate the First Amendment both on their face and as applied to him. In 2005, the district court granted Berger summary judgment as to his facial challenges. Shortly thereafter, Berger and the City settled his as-applied challenges. The City now timely appeals the summary judgment.

II. General Principles

We review a district court’s legal determinations, including constitutional rulings, de novo. See Berry v. Dep’t of Soc. Servs, 447 F.3d 642, 648 (9th Cir.2006). A district court’s determinations on mixed questions of law and fact that implicate constitutional rights are also reviewed de novo. See Cogswell v. City of Seattle, 347 F.3d 809, 813 (9th Cir.2003). Where, as here, the key “issues aris[e] under the First Amendment,” we also conduct an independent review of the facts. See Rosenbaum v. City & County of S.F., 484 F.3d 1142, 1152 (9th Cir.2007).

We begin our analysis with one bedrock principle: The protections afforded by the First Amendment² are nowhere stronger than in streets and parks, both categorized for First Amendment purposes as traditional public fora. See Perry Educ. Ass’n, 460 U.S. at 45, 103 S.Ct. 948; Long Beach Area Peace Network v. City of Long Beach, 522 F.3d 1010, 1021 (9th Cir.2008). In such fora, the government’s right “to limit expressive activity [is] sharply circumscribed.” Perry Educ. Ass’n, 460 U.S. at 45, 103 S.Ct. 948. Among traditional public fora, public parks such as the Seattle Center are especially important locales for communication among the citizenry, as they “ ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’ ” Grossman v. City of Portland, 33 F.3d 1200, 1204-05 (9th Cir.1994) (quoting Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939)).³

Despite the broad First Amendment protection accorded expressive activity in public parks, “certain restrictions on speech in the public parks are valid. Specifically, a municipality may issue reasonable regulations governing the time, place or manner of speech.” Grossman, 33 F.3d at 1205; see also Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). To pass constitutional muster, a time, place, or manner restriction must meet three criteria: (1) it must be content-neutral; (2) it must be “narrowly tailored to serve a significant governmental interest”; and (3) it must “leave open ample alternative channels for communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (quoting Clark, 468 U.S. at 293, 104 S.Ct. 3065).

With these overarching principles in mind, we turn to an evaluation of each of the challenged rules.

III. Rules F.l & F.2: The Permit & Badge Requirements A. Overview

Rule F.l requires all “street performers” to obtain a permit from the Director prior to performing on the Center’s grounds. A “street performer” is “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.”⁴ Rule C.15. Notably, a “street performer” need not be seeking payment from his audience to be covered by the permit and other requirements, nor need he be a repeat performer at the Seattle Center. Permits are issued “upon [the] Director’s satisfaction that the information set forth in the [performer’s] 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.” Rule F.l. The permits are presumptively valid for one year, Rule F.2, and allow permit-holders to perform “at designated locations on the Seattle Center campus.” Rule C.16. Rule F.l also mandates that “[p]ermits, when issued, shall be evidenced by a badge that shall be worn or displayed by the performer in plain view at all times during a performance.”

The permitting requirement outlined in Rule F.l is noteworthy for what it does not cover. It places no limitation, for example, on the number of street performer permits that the Director may issue in a given year. Nor does the required permit assign particular performers to specific venues or performance times. Instead, “[p]erformance locations are available on a first come first served basis” and “may not be ‘saved’ or ‘reserved.’ ” Rule F.4.

Rule F.2 sets forth the “terms and conditions” governing the permits, including the grounds for their revocation. Although the City represents that the Rules provide the Director with no discretion to deny a permit application, the language of Rule F.2 suggests otherwise. According to the Rule, the Director may deny or condition a permit “as appropriate to protect the health, safety and welfare of the public and/or the campus; to protect property; to avoid or limit interference with other uses or users of the campus; [and] to minimize disturbance of the surrounding neighborhood.” The Director may also require the performer to obtain insurance, supply a security deposit, and/or post a bond. A permit may be revoked by the Director “for convenience,” so long as the Director provides the performer with notice.

B. Constitutionality of Rules F.l and F.2

1. Single-Speaker Registration Requirements

A permitting requirement is a pri- or restraint on speech and therefore bears a “ ‘heavy presumption’ ” against its constitutionality. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 130, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963)). As the Court explained in Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002),

[i]t 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 first inform the government of her desire to speak to her neighbors and then obtain a permit to do so.

Id. at 165-66, 122 S.Ct. 2080; see also id. at 166, 122 S.Ct. 2080 (“Even if the issuance of permits by the mayor’s office is a ministerial task that is performed promptly and at no cost to the applicant, a law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition.”).

The presumptive invalidity and offensiveness of advance notice and permitting requirements stem from the significant burden that they place on free speech. “Both the procedural hurdle of filling out and submitting a written application, and the temporal hurdle of waiting for the permit to be granted may discourage potential speakers.” Grossman, 33 F.3d at 1206. Registration requirements also dissuade potential speakers by eliminating the possibility of anonymous speech. See Watchtower Bible, 536 U.S. at 166, 122 S.Ct. 2080; see also McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341—42, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) (“[A speaker’s] decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.”). And, critically, advance notification requirements eliminate “spontaneous speech.” See Watchtower Bible, 536 U.S. at 167, 122 S.Ct. 2080; see also Grossman, 33 F.3d at 1206 (noting that “because of the delay caused by complying with the permitting procedures, ‘[ljimnediate speech can no longer respond to immediate issues.’ ”) (alteration in original) (quoting NAACP. v. City of Richmond, 743 F.2d 1346, 1355 (9th Cir.1984)); see also Rosen v. Port of Portland, 641 F.2d 1243, 1249 (9th Cir.1981).

As a result of the significant burden that registration requirements place on speakers, the Supreme Court has consistently struck down permitting systems that apply to individual speakers — as opposed to large groups — in the one context in which they have been put in place with some regularity: solicitation of private homes. See Watchtower Bible, 536 U.S. at 166-67, 122 S.Ct. 2080; Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 638-39, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980) (striking down a solicitation permit requirement); Cantwell v. State of Conn., 310 U.S. 296, 301, 306-07, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) (striking down a license requirement as applied to Jehovah’s Witnesses “going singly from house to house” for the purpose of religious solicitation); Schneider v. State of N.J., 308 U.S. 147, 163-64, 60 S.Ct. 146, 84 L.Ed. 155 (1939) (striking down a permitting scheme covering all forms of solicitation). The Court has recognized that the government interests asserted in these door-to-door solicitation eases — the prevention of crime and fraud, and the protection of residential privacy — are weighty. See, e.g., Watchtower Bible, 536 U.S. at 164-65, 122 S.Ct. 2080. Nonetheless, it has repeatedly concluded that single-speaker permitting requirements are not a constitutionally valid means of advancing those interests because, typically, (1) they sweep too broadly, see, e.g., Vill. of Schaumburg, 444 U.S. at 636-37, 100 S.Ct. 826 (invalidating registration requirement because, among other things, it applied to groups engaged in legitimate activities as well as those who were not); Watchtower Bible, 536 U.S. at 165-66, 122 S.Ct. 2080 (same), (2) they only marginally advance the government’s asserted interests, see, e.g., Watchtower Bible, 536 U.S. at 168-69, 122 S.Ct. 2080 (noting that a permitting requirement is “unlikely ... [to] preclude criminals from knocking on doors and engaging in conversations [with homeowners],” and that “[t]he annoyance caused by an uninvited knock on the front door is the same whether or not the visitor is armed with a permit”), and (3) the government’s interests can be achieved by less intrusive means, see id. at 168-69, 122 S.Ct. 2080 (noting that a homeowner’s privacy interests can be adequately protected by “No Solicitation” signs); see also Vill. of Schaumburg, 444 U.S. at 637, 100 S.Ct. 826 (asserting that “[fjraudulent misrepresentations can be prohibited and the penal laws used to punish such conduct directly.” (citing Schneider, 308 U.S. at 164, 60 S.Ct. 146)).⁵

Although the Supreme Court has ■ not addressed the validity of single-speaker permitting requirements for speech in a public forum, it stands to reason that such requirements would be at least as constitutionally suspect when applied to speech in a public park, where a speaker’s First Amendment protections reach their zenith, than when applied to speech on a citizen’s doorstep, where substantial privacy interests exist. See Frisby v. Schultz, 487 U.S. 474, 483-84, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). It is therefore not surprising that we and almost every other circuit to have considered the issue have refused to uphold registration requirements that apply to individual speakers or small groups in a public forum. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1039 (9th Cir.2006) (“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.”); see also Gross-man, 33 F.3d at 1206 (holding that the possibility that the ordinance at issue could reach “the actions of single protestors” rendered it unconstitutional); Rosen, 641 F.2d at 1247-48 (invalidating a one-day advance registration requirement because it applied to individuals and therefore “regulate[d] far more than mass conduct that necessarily interferes with the use of public facilities”); Cox v. City of Charleston, 416 F.3d 281, 285 (4th Cir.2005) (“[U]nflinching application” of a permitting requirement “to groups as small as two or three renders it constitutionally infirm.”); Douglas v. Brownell, 88 F.3d 1511, 1524 (8th Cir.1996) (“[A]pplying the permit requirement to groups as small as ten persons compounds our conclusion that the parade permit ordinance is not narrowly tailored [to advance the government’s interest in protecting the safety and convenience of users of public sidewalks and streets.]”); American-Arab Anti-Discrimination Committee v. City of Dearborn, 418 F.3d 600, 608 (6th Cir.2005) (striking down a permit requirement as “hopelessly overbroad” on the ground that the requirement could conceivably apply to groups as small as “two or more persons”).⁶

In this case, the Center’s permitting requirement applies to individual speakers who wish to express themselves in a public forum.⁷ The requirement is not limited to only those performers who seek to attract (or who do, in fact, attract) a crowd of a sufficiently large size.⁸ A^ noted, neither we, the Supreme Court, nor most other circuit courts have ever upheld such a requirement. In addition, the interests the City asserts here — reducing territorial and other disputes involving street performers, and coordinating uses at a public park — are no more, and perhaps less, substantial than those cited by the local governments in the door-to-door solicitation cases. See, e.g., Watchtower Bible, 536 U.S. at 164-65, 122 S.Ct. 2080 (the government’s asserted interests included the prevention of crime and fraud and the protection of residential privacy).

In addition, as discussed in more detail below, the Center’s permitting requirements have an impermissibly broad scope; do not meaningfully promote the City’s asserted interests; and address interests that could be achieved through means far less intrusive than an individual speaker registration requirement. These considerations indicate that the regulation is not sufficiently narrowly tailored to meet the standard for a valid time, place, and manner regulation.

2. Narrow Tailoring

A narrowly tailored time, place, or manner restriction on speech is one that does not “burden substantially more speech than is necessary” to achieve a substantial government interest. Ward, 491 U.S. at 799, 109 S.Ct. 2746. It must “target[ ] and eliminate! ] no more than the exact source of the ‘evil’ it seeks to remedy.” See Frisby, 487 U.S. at 485, 108 S.Ct. 2495 (citation omitted). Moreover, although the chosen restriction “need not be the least restrictive or least intrusive means” available to achieve the government’s legitimate interests, Ward, 491 U.S. at 798, 109 S.Ct. 2746, the existence of obvious, less burdensome alternatives is “a relevant consideration in determining whether the ‘fit’ between ends and means is reasonable,” City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417 n. 13, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993); see also Santa Monica Food Not Bombs, 450 F.3d at 1041.

The Center’s permitting requirement fails the narrow tailoring test for three reasons. First, the requirement only marginally, if at all, promotes the City’s asserted interests, suggesting that the government’s interests would not “be achieved less effectively absent the regulation.” See Ward, 491 U.S. at 799, 109 S.Ct. 2746 (internal quotation marks and citations omitted). Second, less intrusive measures exist by which the City could achieve its alleged goals. Finally, the Center’s permitting rule applies, on its face, to an extraordinarily broad group of individuals, the vast majority of whom are not responsible for the “evil” the City seeks to remedy. See Frisby, 487 U.S. at 485, 108 S.Ct. 2495.

1. The City asserts that the permitting requirement promotes its interest in protecting the safety and convenience of park-goers by reducing territorial disputes among performers, deterring harassment of audience members, and “clarifying and coordinating potentially competing uses.” A “State’s interest in protecting the ‘safety and convenience’ of persons using a public forum” is assuredly “a valid government objective.” Heffron v. Int’l Soc’y of Krishna Consciousness, Inc., 452 U.S. 640, 650, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981); see also Thomas v. Chic.Park Dist., 534 U.S. 316, 323, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002) (“Regulations of the use of a public forum that ensure the safety and convenience of the people are not inconsistent with civil liberties .... ” (internal quotation marks and citation omitted)); Cox v. State of New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 85 L.Ed. 1049 (1941). We have also held that, under appropriate circumstances, a permitting requirement governing the use of a public open space can further a legitimate interest in the regulation of competing uses of that space. See Santa Monica Food Not Bombs, 450 F.3d at 1042-43; Long Beach Area Peace Network, 522 F.3d at 1032-33.

The City’s asserted reasons for enacting the permitting regulations are thus substantial governmental interests. Unlike the restrictions in the cases just cited, however, the Center’s permitting requirements do not promote those interests in any significant way.

There is, for example, no reason two street performers with permits would be less likely to engage in a territorial dispute than two street performers without permits. After all, under the Rules, a permit does not entitle a performer either to a particular territory or to a particular time period within a given territory. While the delineation of performance areas may help reduce such disputes, a permitting requirement is not inherent in such a space allocation system.

The Center’s permitting requirement also bears no apparent connection to the City’s stated interest in reducing hostile performer behavior. The City represents that the permits are freely issued, and that there is little, if any, screening process.⁹ If so, then there is no reason why a performer with a permit is likely to be less hostile than one without a permit. In fact, several of the incident reports that the City introduced as evidence of obstreperous performer conduct describe events that occurred after the introduction of the permitting requirement.

Moreover, the permitting requirement, as currently designed, does not aid in coordinating multiple uses of the Center’s grounds. As already noted, the Rules place no limit on the number of permits that may be issued and do not assign particular performers to specific times or locations. As a result, the Center has no idea when or where a street performer intends to perform over the course of a permit year or how long any given performance will last. Because the permitting requirement does not resolve such uncertainties, it cannot help the Center “clarify[ ] and coordinate] potentially competing uses” of the park.

We recognize that limiting street performers to designated locations does, by definition, improve the coordination of multiple uses of the Center. But again, the permitting requirement does not assign particular performers to one or more of these designated locations, and therefore adds nothing to the Center’s coordination scheme.

The Chief Judge implies that our opinion is in conflict with cases such as Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941) and Poulos v. New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105 (1953) with regard to narrow tailoring to advance a significant governmental interest. Kozinski Dissent at 1068-69. That is simply not the case. In contrast to the Seattle Center’s permitting requirement, the permitting schemes at issue in Cox and Poulos both required applicants to “specify the day and hour” that they planned to hold their parade or public meeting. See Cox, 312 U.S. at 571 & n. 1, 61 S.Ct. 762; Poulos, 345 U.S. at 398 n. 2, 73 S.Ct. 760. So the permits in Cox and Poulos did serve to further the government’s interest in coordinating multiple uses of limited public space. The same cannot be said of the Seattle Center’s permitting requirement, which is untethered to the time, place, length, or size of a planned performance.¹⁰ In addition, both cases preceded the development by the Supreme Court of specific time, place and manner standards, and so, although still good law, are not examples of the application of modern doctrine to discrete circumstances.

Finally, the imperfect fit between the City’s stated goals and the permit and badge requirements is evidenced by the Rules’ significant underinclusiveness. Under the Rules, a group of as many as 99 people can gather without a permit to express their views, so long as they are not engaged in an artistic performance.¹¹ At the same time, an individual singing or dancing for a few friends would be required to register with the Director. This discrepancy makes little sense if, in fact, the City’s primary motivation in passing the permit and badge requirements is to protect the safety and convenience of park-goers.

2. The City, the Chief Judge, and Judge Smith all maintain that the permitting requirement nonetheless promotes the City’s asserted interests simply because a performer’s fear of losing his or her permit will deter that performer from engaging in aggressive conduct and other non-rule abiding behavior. See Kozinski Dissent at 1069; Smith Op. at 1086. Along these same lines, the City contends that, without the ability to revoke a performer’s permit, it would have no means of punishing violations of the Rules. These criticisms disregard the bedrock First Amendment presumption against prior speech restraints, and therefore against substituting an advance permitting process for after-the-fact enforcement. And, even if the permitting requirement does deter and help to punish unwanted behavior, “there are easily available alternative modes of regulation,” Santa Monica Food Not Bombs, 450 F.3d at 1041, that would have considerably less impact on speech than the single-speaker prospective registration system.

Rather than requiring all speakers to pre-register with the government as a prerequisite to engaging in communicative activity, the City could simply enforce its existing rules against those who actually exhibit unwanted behavior.¹² For example, after appropriate hearings, the City might be able to suspend a rulebreaker’s right to perform on the Center’s grounds, or issue a fine.¹³ Cf. Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 776, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994).¹⁴ There is little reason to suspect that a performer would fear a suspension of her right to perform on the grounds or a significant fine any less than she would fear a suspension of her permit. The Supreme Court has consistently struck down prior restraints on speech where a state could achieve its purported goal of protecting its citizens from wrongful conduct by punishing only actual wrongdoers, rather than screening potential speakers. See Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 795, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) (invalidating a restraint on charitable solicitation that purported to protect citizens from fraud and noting, “In striking down this portion of the Act, we do not suggest that States must sit idly by and allow their citizens to be defrauded. North Carolina has an antifraud law, and we presume that law enforcement officers are ready and able to enforce it.”); Vill. of Schaumburg, 444 U.S. at 637, 100 S.Ct. 826 (“Fraudulent misrepresentations can be prohibited and the penal laws used to punish such conduct directly.”); Schneider, 308 U.S. at 162, 60 S.Ct. 146 (striking down ban on pamphleteering that was aimed at the prevention of littering in part because “[t]here are obvious methods of preventing littering. Amongst these is the punishment of those who actually throw papers on the streets.”).

In a related argument, Chief Judge Kozinski avers that the City’s registration requirement promotes the City’s interest in identifying rulebreakers and notifying them of alleged violations. See Kozinski Dissent at 1069-70 (stating that the permitting requirement serves the valid purpose of deterring unruly street performer behavior “by denying them the cover of anonymity, and [giving] the Seattle Center authorities a means of holding them accountable when they do misbehave”). This argument is unavailing, for three reasons. First, the requirement that potential speakers identify themselves to the government, and the concomitant loss of anonymity, is one of the primary evils the Supreme Court cited when it struck down the permitting requirement in Watchtower Bible. See 536 U.S. at 166-67, 122 S.Ct. 2080. The Center’s permitting requirement does not require only non-rule abiding street performers to identify themselves to the government. It requires all performers to “first inform the government of [their] desire to speak” in a public forum, see Watchtower, 536 U.S. at 165-66, 122 S.Ct. 2080, and thereby forego their anonymity. The permitting rule’s denial of anonymity to potential street performers, and the deterrent effect that such a denial has on some individuals’ exercise of speech rights, weighs against the rule’s constitutionality, not in its favor. See Watchtower, 536 U.S. at 166-67 & n. 14, 122 S.Ct. 2080.

Second, the City need not rely on a preregistration scheme to determine the identity and addresses of problematic street performers. Seattle Center employees can, instead, ask the offending street performer to identify himself and provide an address, if necessary. This method is presumably the one employed by Seattle police officers when they enforce criminal statutes that prohibit such acts as disorderly conduct, see Seattle Mun.Code § 12A.12.010, and aggressive begging. See Seattle Mun.Code § 12A.12.015. Moreover, the Supreme Court has recently upheld so-called “stop and identify” statutes that require suspects to identify themselves to police officers. See Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). In other words, the City has the authority to ask alleged rule violators to provide their identities. The registration system is therefore of only minimal additional usefulness, if any.

Third, as noted supra n. 14, the City does not appear to have had any practical difficulties uncovering the identities of the limited number of street performers who appear regularly at the Seattle Center.

The City’s asserted interest in coordinating multiple uses of the Center could also be achieved as effectively without the permitting requirement. Although we do not uphold the Center’s designation of sixteen performance locations on the present record, see infra Part IV, we also hold that the delineation of performance areas, particularly in the most sought-after locales, might pass constitutional muster on a more developed record. If so, a valid designated-location plan, in combination with the City’s existing first-come-first-served rule, would achieve the same improvements in the coordination of multiple uses without a permitting system as it would with one. Conversely, if the designation of performance locations is not constitutionally valid, then the permitting scheme cannot be justified as enhancing the enforcement of an invalid designation.

In short, by relying on an expansive, prophylactic prior restraint, the City has “burden[ed] substantially more speech than is necessary to further [its] interests.” Ward, 491 U.S. at 799, 109 S.Ct. 2746. The permitting system is entirely peripheral to the Center’s need to enforce its Rules. Because the City’s interests in punishing wrongful conduct could “be achievedfjust as] ... effectively absent the [permitting] regulation,” id., that regulation is not narrowly tailored to promote those interests. See also Discovery Network, 507 U.S. at 417 n. 13, 113 S.Ct. 1505 (holding that the availability of less restrictive alternatives is a relevant consideration in a narrow tailoring analysis).

3. There is a third, particularly compelling reason why the Center’s permitting requirement fails the narrow tailoring requirement: It applies to a large number of individuals who have no connection to the City’s asserted reasons for the permitting requirement, thereby running afoul of the principle that the “[government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” Ward, 491 U.S. at 799, 109 S.Ct. 2746.

The permitting requirement is, according to the City, designed in part to reduce obstreperous conduct by street performers. Yet, by the City’s own account, most street performers are not problematic.¹⁵ So the permitting requirement burdens all performers to root out the occasional bad apple. By doing so, it fails to “targetf] and eliminate[] no more than the exact source of the ‘evil’ it seeks to remedy.” Frisby, 487 U.S. at 485, 108 S.Ct. 2495.

Similarly, the permitting requirement applies to street performers who pose no realistic coordination or traffic flow concerns, as well as to those who might. It is hard to fathom how an individual performing for two or three others in a park as large as the Center would pose coordination or traffic flow problems for the City. See Santa Monica Food Not Bombs, 450 F.3d at 1038-39 (noting that the type of coordination problems that justify the imposition of advance notification and permitting requirements arise in a public forum only when large groups are involved); Grossman, 33 F.3d at 1206 (same); Long Beach Area Peace Network, 522 F.3d at 1032-33 (same); City of Dearborn, 418 F.3d at 608 (“The city of Dearborn’s significant interest in crowd and traffic control, property maintenance, and protection of the public welfare is not advanced by the application of the Ordinance to small groups.”). The City has not provided any evidence that street performers usually, or even sometimes, gather crowds of the size that might justify coordination-of-use permits — according to Long Beach Area Peace Network, 522 F.3d at 1033, seventy-five or more people. Once again, the permitting requirement here burdens substantially more speech than necessary to promote a legitimate government objective.

The unconstitutional breadth of the permitting requirement is perhaps most apparent in the City’s definition of “street performer,” the group to whom the permitting rules apply. According to Rule C.15, a “Street Performer” is “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....” This definition is extraordinary in its sweep.¹⁶ It includes not only the few problematic street performers who perform repeatedly and for pay, but also any individual who wishes to sing, dance, or play an instrument while on the Center’s grounds. Protest songs, playing the guitar at a picnic, even whistling are swept up into this broad definition. An individual strumming on a guitar at a family picnic surely poses no problem to the safety and convenience of fellow park-goers. Yet, that person, like many others, would need to obtain a permit.

The City urges us to read the definition more narrowly than its text would suggest. It contends that the Rules apply only to those performances that are “aimed at attracting an audience,” and so are not unconstitutionally broad.

It is a “well-established principle that statutes will be interpreted to avoid constitutional difficulties.” Frisby, 487 U.S. at 483, 108 S.Ct. 2495. Thus, where an unconstitutionally broad statute is “readily subject to a narrowing construction” that would eliminate its constitutional deficiencies, we accept that construction. See id. at 482, 108 S.Ct. 2495; see also Ctr. for Bio-Ethical Reform, Inc., v. L.A. County Sheriff’s Dep’t, 533 F.3d 780, 791-93 (9th Cir.2008) (construing an ambiguous statute narrowly to avoid First Amendment problems).

In this case, though, even if we were to hold that the published “street performer” definition is “readily subject” to the proposed narrowing construction, the revised definition would be no less constitutionally infirm, for two reasons. First, most performers seek to “attract a crowd,” even if that crowd turns out to be composed of only two or three people. The City’s “narrower” rule is therefore only marginally less broad, if less broad at all, than the original.

In Santa Monica Food Not Bombs, we invalidated a rule that required any individual who advertised an event on the radio or television to obtain a permit, regardless of the number of people who attended the event. See 450 F.3d at 1043. We noted that the permit would have been narrowly tailored if it had applied to events that actually attracted a crowd of more than 150 people, even if the number of attendees was unknown before the event. Id. In other words, the City of Santa Monica was allowed to hold an organizer responsible for obtaining a permit if the event actually attracted a significant crowd, but not because the event might conceivably attract such a crowd. Similarly, here, the City could draft a rule for the Seattle Center that requires performances that attract an audience of a given size to obtain a permit, and enforce that rule for performances that actually attract that size audience. What it cannot do is require permits for all performances at the Center, regardless of the size of the crowd,¹⁷

Second, the City’s proposed limitation would make an otherwise clear, though overbroad, regulation unconstitutionally vague. See Foti v. City of Menlo Park, 146 F.3d 629, 638-40 (9th Cir.1998). Foti invalidated a city ordinance that prohibited drivers from displaying signs on their parked vehicles if, and only if, those signs were designed to “attract the attention of the public.” Id. at 638. We found this standard unconstitutionally vague, because it required those enforcing the ban to “decipher the driver’s subjective intent” based on such factors as the driver’s chosen parking space, the amount of traffic passing by the chosen parking spot, and the physical characteristics of the sign. Id. at 638-39. Our concern was that, “[w]ith this range of factors to consider, ... a police officer might resort to enforcing the ordinance only against ... [those] messages the officer or the public dislikes.” Id. at 639.

The City’s limiting construction mimics the language of the ordinance declared unconstitutionally vague in Foti and so fares no better than that ordinance. A Seattle police officer attempting to enforce the Center’s permitting requirement would have to decide whether a performer intended “to attract a crowd.” The officer would presumably make such a determination based on factors such as the performer’s chosen location, volume, flamboyance, and, worst of all, subject matter. As in Foti, this myriad of factors lends itself to discriminatory enforcement.

Moreover, a prospective performer would need to anticipate how an officer might interpret the performance. Even if the performer had no intent to “attract an audience,” he or she would have to evaluate whether an officer might think so. This uncertainty is likely to have a chilling effect on speech. See id. at 638 (“A statute must be sufficiently clear so as to allow persons of ‘ordinary intelligence a reasonable opportunity to know what is prohibited.’ ”) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)).

In short, far from saving Rule C.15 and its associated Rules from constitutional ignominy, the City’s proffered limiting construction makes matters worse.

3. Conclusion

Overall, like the invalid permitting scheme in Grossman, the City’s regulations, “[rjather than being narrowly tailored to protect speech, ... [are] tailored so as to preclude speech.” Grossman, 33 F.3d at 1207. We therefore hold that Rules F.l and F.2 are unconstitutional.¹⁸ As currently drafted, the Center’s permitting requirement does not meaningfully advance the City’s asserted interests. Instead, it requires single individuals to inform the government of their intent to engage in expressive activity in a public forum, a requirement that neither we nor the Supreme Court has ever countenanced. In addition, its broad sweep prohibits much more speech than the “evil[s]” it seeks to remedy require, and the main objectives of the City’s advance registration scheme could be achieved by far less intrusive means. For all these reasons, the Center’s permitting requirement is not a reasonable time, place, or manner restriction.

IV. Rule F.5: The Performance Location Rule

A. Overview of the Rule

Rule F.5 limits street performers to sixteen “designated locations on the Seattle Center grounds,” identified on a map that accompanies each Street Performer Permit. The map also indicates the “maximum number” of performers, typically no more than two, who may perform at each location simultaneously. If the Director determines that a given performance interferes with other users of the Center’s grounds or “aggravates foot traffic congestion,” the Rule permits the Director to “relocate performers” to other designated areas.

B. Constitutionality of Rule F.5

The summary judgment record is insufficient to establish that the performance location rule is unconstitutional. As with other time, place, or manner restrictions on speech in a public forum, the government bears the burden of justifying a location restriction. See Kuba v. 1-A Agric. Ass’n, 387 F.3d 850, 858-63 (9th Cir.2004); see also United States v. Playboy Entm’t Group, 529 U.S. 803, 816-17, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50-52, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). Viewing the available evidence in a light most favorable to the City, see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), we conclude that a genuine issue of material fact exists as to whether the City met this burden, and that summary judgment for Berger was therefore not merited. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The City submitted evidence, which Berger does not dispute, that, before the introduction of the location restriction, it received weekly complaints from park tenants about street performers blocking entranceways and egresses. The City’s evidence also indicates that street performers regularly engaged in disruptive and volatile territorial disputes. Viewing this uncontested evidence in a light most favorable to the City, we conclude that the City met its burden of establishing that a significant problem exists. See Edenfield v. Fane, 507 U.S. 761, 770-71, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993) (“[A] governmental body seeking to sustain a restriction ... must demonstrate that the harms it recites are real....”).

Moreover, unlike the Center’s permitting requirement, the location rule does promote the City’s interest in reducing these problems. By delineating precise performance locations, the City can assure itself and park tenants that street performers are not blocking entrances, exits, and pathways. Similarly, well-defined performance areas, combined with the Center’s first-come, first-served rule, reduce territorial disputes by eliminating uncertainty over the permissible boundaries of a given performance.

In addition, the performance location rule, unlike the permitting requirement, passive solicitation, and captive audience rules, is not overbroad on its face. See Bd. of Airport Comm’rs of the City of L.A. v. Jews for Jesus, Inc., 482 U.S. 569, 574-75, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987) (striking down, on overbreadth grounds, a regulation that prohibited individuals from engaging in “any First Amendment activities” within an airport terminal).¹⁹

The only issue, then, is whether the location restriction leaves open “ample alternative channels for communication.” Ward, 491 U.S. at 791, 109 S.Ct. 2746. As we explained in Long Beach Area Peace Network, “an alternative is not ample if the speaker is not permitted to reach the intended audience.” 522 F.3d at 1024.

On summary judgment, we are, of course, required to draw all reasonable inferences in favor of the non-moving party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. In support of its argument that the sixteen designated locations provide adequate access to audiences, the City provides a single piece of evidence: a map of the Seattle Center that includes the chosen locations.²⁰ As the dissenters point out, the map shows that the designated performance areas are near to several key Seattle Center attractions, including the Space Needle, the Key Arena, and the Experience Music Project. Many of the locations also appear to be directly adjacent to the Center’s major pedestrian thoroughfares. The map therefore permits us to draw the reasonable inference that the chosen locations provide street performers with access to most park-goers and therefore to their intended audience.

Berger challenges this inference, and in support of that challenge, introduces his own declaration. In that declaration, he asserts that “many [of the locations] are far off the walkways where it is very difficult to notice the performer.” He also avers that “Other times the Center has trucks or equipment or construction blocking locations for weeks on end.” Although these statements raise an inference that the chosen locations do not provide adequate access to a street performer’s audience, they do not compel that conclusion as a matter of law. Nor does Berger supply additional evidence that would preclude us from drawing an inference in favor of the City.

Because we must draw all reasonable inferences in favor of the City, and because there is conflicting evidence concerning whether the sixteen dedicated locations provide adequate access to the intended audience, summary judgment for Berger on the issue of Rule F.5’s constitutionality is not appropriate on the current record.

To be clear, we do not hold that Rule F.5 is constitutional. Berger’s evidence, though sparing, is sufficient to support a reasonable inference that the designated locations do not provide access to his intended audience. Rather, we are simply ruling that, on the current summary judgment record, there are conflicting inferences to be drawn regarding material facts pertinent to the dispositive consideration, adequacy of access to the intended audience.

Y. Rule F.3.a: The Passive Solicitation Rule

A. Overview of Rule

Rule F.3.a states: “No performer shall actively solicit donations, for example by live or recorded word of mouth, gesture, mechanical devices, or second parties.” The Rule does allow performers “passively” to solicit donations by setting out a receptacle that “may include a written sign that informs the public that such donations are sought.”

B. Constitutionality of Rule F.3.a

Speech that solicits funds is protected by the First Amendment. See Vill. of Schaumburg, 444 U.S. at 628-32, 100 S.Ct. 826; Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 677, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992). Rules that regulate solicitation in public fora are therefore subject to the same standards as those that limit other forms of speech. See Lee, 505 U.S. at 703-04, 112 S.Ct. 2711 (Kennedy, J., concurring); see also ACLU of Nev. v. City of Las Vegas (ACLU II), 466 F.3d 784, 792 (9th Cir.2006); ACORN v. City of Phoenix, 798 F.2d 1260, 1267 (9th Cir.1986). In other words, solicitation regulations must be content-neutral, narrowly tailored, and leave open reasonable alternative channels for expression. Id. If a regulation is not content-neutral, we apply strict scrutiny. See Playboy Entertainment Group, 529 U.S. at 813, 120 S.Ct. 1878; Perry Educ. Ass’n, 460 U.S. at 45, 103 S.Ct. 948. Under that standard, the regulation is valid only if it is the least restrictive means available to further a compelling government interest. Id. We hold that the Center’s active solicitation ban is a content-based regulation, and that it does not satisfy the exacting standard for a valid content-based regulation.

1. Content-based

A regulation is content-based if either the underlying purpose of the regulation is to suppress particular ideas, see Ward, 491 U.S. at 791, 109 S.Ct. 2746, or if the regulation, by its very terms, singles out particular content for differential treatment. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642-43, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994); see also Discovery Network, 507 U.S. at 429, 113 S.Ct. 1505.

The City asserts, and we have no reason to doubt, that it passed its active solicitation ban in an effort to protect Center patrons from harassment. That is a legitimate, non-content-based purpose, and Rule F.3.a is therefore content-based only if it discriminates against speech on its face on the basis of content. It does.

First, the City’s suggestion to the contrary notwithstanding, Rule F.3.a does regulate speech, not conduct. As we explained at length in ACLU II, regulations that ban certain conduct associated with solicitation do not violate the prohibition on content-based regulation of speech. See 466 F.3d at 794-96. A ban on the actual hand-to-hand exchange of money, for example, is not content-based speech regulation. See Lee, 505 U.S. at 705, 112 S.Ct. 2701 (Kennedy, J., concurring) (stating that a ban on in-hand donations was not a content-based regulation of speech because it was “directed only at the physical exchange of money”); see also ACLU II, 466 F.3d at 795 (relying on Justice Kennedy’s concurrence in Lee). But Rule F.3.a allows the conduct — exchange of money. It regulates only the speech, by specifying the medium and manner of requesting money — only in writing, and only passively.

Second, Rule F.3.a is content-based by its very terms. It specifically restricts street performers from communicating a particular set of messages — requests for donations, such as “I’d like you to give me some money if you enjoyed my performance.” Performers are otherwise free to communicate whatever ideas they like, however they wish. As we stated with respect to a similar solicitation ban in ACLU II, while “this distinction [may be] innocuous or eminently reasonable, it is still a content-based distinction because it ‘singles out certain speech for differential treatment based on the idea expressed.’ ” See ACLU II, 466 F.3d at 794 (quoting Fot% 146 F.3d at 636 n. 7).

In other words, although the Center’s active solicitation rule regulates the “manner” in which street performers may express themselves, it does so based on the content of the performer’s message. A performer at the Seattle Center need not rely on a sign, for example, to express his or her views on a political candidate; she can use her voice. To use another example, Rule F.3.a is no better than a regulation that forbids those addressing abortion issues, but not those protesting war, from giving speeches in a park, but allows abortion protestors and supporters to pass out leaflets about abortion. As these examples show, one can regulate the manner of speech on the basis of content, taking the regulation outside the time, place, and manner rubric, even though some manner of communication on the subject is allowed.²¹

Our conclusion that the active solicitation ban is content-based is supported — but not determined — by the fact that an officer seeking to enforce the active solicitation ban “must necessarily examine the content of the message that is conveyed.” Forsyth County, 505 U.S. at 134, 112 S.Ct. 2395 (internal quotation marks and citations omitted); see also ACLU II, 466 F.3d at 796 n. 12. How else would an officer determine whether a performer’s tip-of-the-cap was accompanied by a permissible “Thank you” or a prohibited “Please give?”²²

In short, Rule F.3.a is a content-based limitation on speech. That it only restricts, rather than completely bans, particular content makes it no more content-neutral.²³

2. Strict scrutiny

As a content-based regulation, the ban on active solicitation is valid only if it serves a compelling government interest in the least restrictive manner possible. Rule F.3.a does neither, and so is not one of the “rare ... regulations] restricting speech because of its content” that is “permissible.” See Playboy Entertainment Group, 529 U.S. at 818, 120 S.Ct. 1878.

As a general matter, it is unlikely the City’s asserted interest in reducing obnoxious behavior by street performers could ever be considered compelling. See S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1146 (9th Cir.1998) (noting that, although the government “may have a substantial interest in preventing solicitors from harassing pedestrians on public streets and sidewalks!,] ... these substantial interests ... may not be compelling”). This stated interest pales in comparison to those interests the Supreme Court has found compelling in a First Amendment context. See Burson v. Freeman, 504 U.S. 191, 198-200, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992) (plurality opinion) (reducing voter intimidation and election fraud); Eu v. S.F. County Democratic Cent. Comm., 489 U.S. 214, 232, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989) (protecting “the integrity of the electoral process”); R.A.V. v. City of St. Paul, 505 U.S. 377, 395, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (safeguarding “the basic human rights of members of groups that have historically been subjected to discrimination”); see also Alaskan Independence Party v. Alaska, 545 F.3d 1173, 1180 (9th Cir.2008) (elimination of fraud and corruption in the state election process); Cal. Pro-Life Council, Inc. v. Randolph, 507 F.3d 1172, 1179 & n. 8 (9th Cir.2007) (disclosure of political information to the electorate).

But even if reducing aggressive solicitation qualifies as a compelling interest, the Center’s passive solicitation rule is far from the least restrictive means by which the City could discourage “pushy” or “overbearing” solicitation. Rule F.3.a bars all active solicitation. It reaches innocuous verbal requests for donations; it prohibits a performer from “gestur[ing]” towards the passive receptacle that the Rules permit the performer to display. Yet, “[a] complete ban can be narrowly tailored ... only if each activity within the proscription’s scope is an appropriately targeted evil.” Frisby, 487 U.S. at 485, 108 S.Ct. 2495. Rule F.3.a cannot possibly meet that standard.

If the City desires to curb aggressive solicitation, it could enforce an appropriately worded prohibition on aggressive behavior. If necessary, the City can also rely on constitutionally valid nuisance and aggressive panhandling laws to control street performers who will not take no for an answer when asking for money.

The Supreme Court in Village of Schaumburg observed that “[t]he [local government’s] legitimate interest in preventing fraud can be better served by measures less intrusive than a direct prohibition on solicitation. Fraudulent misrepresentations can be prohibited and the penal laws used to punish such conduct directly.” 444 U.S. at 637, 100 S.Ct. 826; see also Riley, 487 U.S. at 795, 108 S.Ct. 2667; Schneider, 308 U.S. at 164, 60 S.Ct. 146. Similarly, punishing offensive conduct after it has occurred is indubitably a less restrictive way to protect audiences from serious annoyances than banning all forms of active solicitation, whether problematic or not. The City’s sweeping ban is simply not the least restrictive means of reducing overbearing street performer behavior. It therefore cannot stand.

VI. Rule G.4: The Captive Audience Rule

A. Overview of the Rule

Unlike the rules we have already discussed, Rule G.4 applies to all speakers, not just to street performers. It prohibits all “speech activities ... within thirty (30) feet of any captive audience.” “Speech activities” include “both political speech and commercial speech[,]” but do not include “activities] conducted by City employees or licensed concessionaires.” Rule C.14. A “captive audience” is

any person or group of persons: 1) waiting in line to obtain tickets or food or other goods or services, or to attend any Seattle Center event; 2) attending or being in an audience at any Seattle Center event; or 3) seated in any seating location where foods or beverages are consumed.

Rule C.5.

B. Constitutionality of Captive Audience Rule

The Center’s “captive audience” Rule is the most troublesome of the challenged regulations, striking at the very core of the precepts underlying the protection of speech in traditional public fora. The Rule’s very purpose — according to the City — is to “protect” many of the individuals who have gathered at the Center, a public forum, from efforts by fellow citizens to communicate with them. That purpose is squarely at odds with the fundamental principle of our traditional public forum jurisprudence — namely, that use of parks for public discussion and gathering “has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens” and “must not, in the guise of regulation, be abridged or denied.” See Hague, 307 U.S. at 515-16, 59 S.Ct. 954. The seminal captive audience case, Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974), specifically abjured any such application of the captive audience concept, recognizing that a public street car is not a “First Amendment forum” like a “park,” “where First Amendment values inalterably prevail.” Id. at 302-04, 94 S.Ct. 2714.

And, indeed, from “time out of mind,” public parks have been central to our constitutional heritage of open discourse. See Hague, 307 U.S. at 515, 59 S.Ct. 954. They provide an essential outlet to those who, for economic or other reasons, would not otherwise be able to participate in that discourse. See Grossman, 33 F.3d at 1205 n. 8. Given the importance of these locales, we cannot countenance the view that individuals who choose to enter them, for whatever reason, are to be protected from speech and ideas those individuals find disagreeable, uncomfortable, or annoying. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910-11, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982).²⁴

The Supreme Court’s “captive audience” jurisprudence fully supports our conclusion that public park-goers, in general, are not a protectable captive audience for constitutional 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 Jacksonville, 422 U.S. 205, 210, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975) (internal quotation marks and citation omitted). Only in “narrow circumstances” may government restrain speech to protect such audiences. Id. at 210-11, 95 S.Ct. 2268. “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 that substantial privacy interests are being invaded in an essentially intolerable manner.” Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971).

Such substantial privacy interests include “the psychological [and] physical well-being of the [hospital] patient held ‘captive’ by medical circumstance.” Madsen v. Women’s Health Ctr., 512 U.S. 753, 768-71, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) (validating an injunction creating a 36-foot buffer zone around entrances of an abortion clinic in which picketing and demonstrating, among other activities, were barred); see also Hill v. Colorado, 530 U.S. 703, 728-30, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (upholding an eight-foot regulatory buffer around clinic entrances due to the “unique concerns that surround health care facilities,” where those using the facilities “are often in particularly vulnerable physical and emotional conditions”). They also encompass “the quiet enjoyment” of one’s home. Frisby, 487 U.S. at 483, 108 S.Ct. 2495 (upholding a ban on “focused picketing taking place solely in front of a particular residence”).

The unique privacy and self-determination interests involved in protecting medical facilities and residences simply do not exist for those waiting in line or having lunch outdoors in a public park. Indeed, we have already rejected such a comparison in Kuba, 387 F.3d at 861 n. 10, explaining that patrons of a “place of public entertainment” were not a captive audience similar to the intended audiences in Madsen and its progeny, because they were obviously not “particularly vulnerable,” as are the patients and doctors in such cases.

Moreover, even if Seattle Center officials could justify a prohibition on unwelcome speech, the current “captive audience” regulation would still be too broad because it prohibits all “speech activities,” not just those that continue after the recipient of the speech has signaled a preference to be left alone. See Jews for Jesus, 482 U.S. at 574-75, 107 S.Ct. 2568 (holding that a regulation was constitutionally over-broad where it prohibited all “First Amendment activities” and noting that “no conceivable governmental interest would justify such an absolute prohibition of speech”); see also Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357, 383-84, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997) (holding that an injunction provision that required abortion protestors to move away from abortion clinic patients who asked to be left alone did not violate the First Amendment).

The implications of upholding the Seattle Center’s “captive audience” regulation are startling. Doing so would permit the almost unlimited regulation of speech in a public park. After all, any visitor to a park, even one strolling through the park, is “captive” in a particular spot, in that the visitor might have reason to stay where she is rather than move to another location in the park or to a different park. There is no reason to suspect that a group of runners on a park track, parents watching their children in a playground, or an individual sitting in her favorite spot are any less “captive” — i.e., less interested in staying where they are rather than moving to a different location — than those who are waiting in line or eating while seated in a designated area.

In sum, we hold that public park-goers are not a “captive audience.”²⁵ Any interest they may have in pursuing such activities as waiting in line, attending an event, or eating without communication by others is not a “substantial privacy interest.”

Moreover, even if the City’s purported interest in protecting certain park-goers from communications by others were substantial — which it is not — Rule G.4 is not narrowly tailored to meet that interest. This is so for two reasons.

First, the rule’s preference for concessionaires and licensees leads to the odd result that purely commercial speech, which receives more limited First Amendment protection than noncommercial speech, is allowed and encouraged, while artistic and political speech is not. This bias in favor of commercial speech is, on its own, cause for the rule’s invalidation. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 513, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) (plurality opinion); see also 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 Adver., Inc. v. City of Moreno Valley, 103 F.3d 814, 819-20 (9th Cir.1996) (same).

Second, Rule G.4 is unconstitutionally broad. See Bd. of Airport Comm’rs of City of L.A. v. Jews for Jesus, Inc., 482 U.S. 569, 574-75, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987). In Jews for Jesus, the Court invalidated, on overbreadth grounds, a regulation that prohibited individuals from engaging in any “First Amendment activities” within the Central Terminal of Los Angeles International Airport. Id. at 574, 107 S.Ct. 2568. In striking down the rule, the Court noted that “[t]he resolution does not merely regulate expressive activity in the Central Terminal Area that might create problems such as congestion or the disruption of the activities of those who use LAX[;] ... it prohibits even talking and reading, or the wearing of campaign buttons or symbolic clothing.” Id. at 574-75, 107 S.Ct. 2568. “We think it obvious that such a [sweeping] ban cannot be justified ... because no conceivable governmental interest would justify such an absolute prohibition of speech.” Id. at 575, 107 S.Ct. 2568.

The Center’s “captive audience” rule— which prohibits all “speech activities ... within thirty (30) feet of a captive audience” — is similarly overbroad in its sweep. By its very terms, Rule G.4 prohibits both welcome and unwelcome communications, both verbal tirades and silent protests, both offensive language and the mildest remark. It would, for instance, forbid a political campaign representative from offering a handbill to a consenting park-goer in an entirely benign — even silent — -manner. It would likewise prevent a concerned citizen from displaying a sign critical of the city government. Such passive and unthreatening acts certainly do not intrude on the privacy of park-goers in “an essentially intolerable manner,” if they intrude at all. See Cohen, 403 U.S. at 21, 91 S.Ct. 1780. Thus, by flatly prohibiting all “speech activities,” the Center’s “captive audience” rule, like the regulation in Jews for Jesus, “does not merely regulate expressive activity in the [Center] that might create [the alleged] problems.” 482 U.S. at 574, 107 S.Ct. 2568. No governmental interest — and certainly not an interest in protecting public park-goers from unwanted communications — could justify such a sweeping ban. See id.

Rule G.4 also creates precisely the type of “floating buffer zone[ ]” that the Court found unconstitutional in Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357, 377-80, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997). 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, 117 S.Ct. 855. According to the court, the “floating” fifteen foot zones created by the injunction created an uncertain and over-broad system of restraints on speech. Id. at 377-80, 117 S.Ct. 855. As clinic patients moved, speech-restricted areas shifted across the landscape in an unpredictable and, in the Court’s view, unacceptable manner. Id.

Rule G.4’s thirty-foot buffer zone generates the same unpredictability problems here. As the end of a line shifts, or a picnic table is occupied, the Center’s captive audience rule snaps on to bar speech within thirty feet of the line or the picnickers. This system of shifting “speech-free” zones is the sort of capricious restraint, likely to chill far more speech than the Seattle Center would be justified in regulating, that Schenck struck down. 519 U.S. at 377-80, 117 S.Ct. 855.

In sum, the City’s “captive audience” rule not only fails to address a substantial government interest, it also burdens considerably more speech than necessary to achieve its purported goals. Rule G.4’s flat ban on all speech activities encompasses a broad compendium of expressive activity, much of which is not disruptive or unduly invasive of the privacy interests of allegedly “captive” park-goers. In addition, the rule promulgates unconstitutionally vague “buffer” zones that are likely to chill otherwise permissible speech. For all these reasons, the “captive audience” rule cannot stand.

VII. Response to the Dissenters

Although we have responded to specific points raised by the dissent throughout this opinion, we wish to address two broader concerns that we have with the various dissents.

First, in order to bolster their arguments, both Chief Judge Kozinski and Judge Gould mischaracterize both the nature of the Center’s rules and our analysis of those rules. Chief Judge Kozinski, for example, repeatedly suggests that the rules apply only to those performers who solicit money. See, e.g., Kozinski Dissent at 1063-64 (noting that the rules are intended to protect park-goers from “overly aggressive street performers bent on increasing their own visibility and income”); id. at 1067 (“[SJtreet performers like Berger are not merely citizens who wish to use the park as a forum for public expression or religious worship on an occasional basis; they are operating a business and earning a living from these activities.”); id. at 1068 (“The commercial aspects of the street performer trade, which my colleagues overlook, set up the dynamics that have given Seattle Center cause for concern.”). That understanding of the rules is simply wrong. No such limitation appears in the Center’s rules, nor has it been propounded by the City. Instead, the permitting requirement applies, on its face, to all “member[s] of the general public who engage[ ] in any performing art or the playing of any musical instrument, singing or vocalizing,” Rule C.15. It does not distinguish between performers who seek funds and those who merely wish to entertain or to express an opinion through performance art. The City’s “captive audience” rule goes even further. It applies to all park-goers, not just to street performers, and certainly not just to street performers who solicit funds. The City has not argued otherwise.

The dissenters also imply that the rules are limited to repeat performers, see Kozinski Dissent at 1067, 1068, and to preventing “unwelcome or harassing performances.” See Gould Dissent at 1080. Once again, the scope of the rules at issue is not limited to these categories, nor has the City so interpreted them. The permitting requirement and passive solicitation rules apply to one-time performers and to Seattle Center regulars in equal measure. The sweeping “captive audience” rule applies to everyone (other than City employees and licensed concessionaires) at all times. In addition, none of the rules differentiate between benign, inoffensive conduct and aggressive, unwelcome acts. They simply deter or ban all relevant speech.

We do not discount the City’s interest in protecting patrons of the Seattle Center from “browbeating” and other hostile conduct. The problem is that the City, rather than tailoring its rules to curtail problematic behavior, imposed sweeping bans on expressive activity and implemented a broad registration requirement. It is, in large part, the overbreadth of the rules, an overbreadth the dissenters do not appear to recognize, that renders them constitutionally infirm. See Jews for Jesus, 482 U.S. at 574-76, 107 S.Ct. 2568.

Chief Judge Kozinski also mischaracterizes, or perhaps misunderstands, key aspects of our opinion. For instance, he asserts that “it is a wholly different matter to derive some sort of rule that prohibits— or strongly discourages — regulation of speech by a single individual, regardless of the size of his expected audience or the disruption he may cause.” Kozinski Dissent at 1072. The “rule” that we propose is precisely the opposite of what the Chief Judge suggests. One of the central deficiencies of the Center’s permitting requirement is that it does not consider the size of a street performer’s expected audience or “the disruption he may cause.” It applies to every member of the “general public” who wishes to perform, sing, or vocalize on the Center’s grounds, irrespective of the size of their planned or actual audience. If, by contrast, the permitting requirement applied only to performers who intend to attract a crowd of a sufficiently large size (say 100 persons or more), the requirement might very well be constitutional. For this reason, Judge Kozinski’s suggestion that our opinion would preclude a permit requirement for the famous civil rights leader who plans to hold a rally for half a million people at the Lincoln Memorial is absurd. Instead, the point is that the Center’s permitting requirement is not limited to huge rallies' — or even small, hundred person ones.

Moreover, our conclusion that the Constitution prohibits the government from implementing a registration system that governs speech in a public forum and applies to groups as small as a single individual performing without an audience is neither new nor idiosyncratic. This circuit has repeatedly affirmed the principle that an advance notification requirement applicable to speech in a public forum must be limited to larger groups. See Long Beach Area Peace Network, 522 F.3d at 1032-33; Santa Monica Food Not Bombs, 450 F.3d at 1039; Grossman, 33 F.3d at 1206; City of Richmond, 743 F.2d at 1355; Rosen, 641 F.2d at 1247-48. Several other circuits have reached this same conclusion. See Cox v. City of Charleston, 416 F.3d 281, 285 (4th Cir.2005); American-Arab Anti-Discrimination Committee v. City of Dearborn, 418 F.3d 600, 608 (6th Cir.2005); Douglas v. Brownell, 88 F.3d 1511, 1524 (8th Cir.1996). The dissenters ignore this long line of authority, concluding simply that a “rigid numerical rule will fail because it makes no account for the performance’s effect on others.” Kozinski Dissent at 1073. But, as we and several other appellate courts have noted, a numerical floor is necessary precisely because such a floor indicates that the government has properly tailored its permitting requirement to address the effect that a speaker will have on other users of a public space.

We also reiterate that the City is free to enforce its existing rules, including its criminal statutes and traffic ordinances, against individual offenders. We do not hold, as Chief Judge Kozinski’s other, equally silly, examples appear to suggest, see Kozinski Dissent at 1072-73, that the First Amendment exempts all individual speakers from regulation. If Yo-Yo Ma or Mr. Nez decided unilaterally to obstruct vehicle traffic, the government can, of course, prevent him from doing so by enforcing its vehicular codes. Similarly, Seattle Center officials can, pursuant to its existing rules, remove a street performer who is blocking pedestrian traffic or harassing parkgoers. But a permitting requirement that applies to a group as small as a single person and which governs speech activity in a public park (not on a city street) is not necessary to promote the interests the City asserts in this case and is highly offensive to our constitutional values.

Which leads to our second — and overriding — general concern with the approach of the dissenters: the dissents ignore, or at least discount, bedrock principles of First Amendment jurisprudence. Among these is the proposition that public parks are an especially important and protected forum for speech, even as compared to public streets. See Hague, 307 U.S. at 515, 59 S.Ct. 954; Grossman, 33 F.3d at 1204-05. Chief Judge Kozinski describes the Seattle Center as a “cultural achievement,” “an enterprise,” a “multi-use facility,” and the “crown jewel of [Seattle’s] civic enterprise.” While accurate, these descriptions mask the Seattle Center’s true identity: it is an 80-acre expanse of public land that includes twenty-three acres of outdoor, public park space. However unique the Seattle Center may be, it is, fundamentally, a public park. As such, regulations on speech within its boundaries warrant particularly close attention.

The dissenters also disregard the fundamental premise that “a law requiring a permit to engage in [individual] speech constitutes a dramatic departure from our national heritage and constitutional tradition,” Watchtower Bible, 536 U.S. at 166, 122 S.Ct. 2080, because “prior restraints on speech [like the City’s permitting requirement] ... are the most serious and least tolerable infringement on First Amendment rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). Such restraints bear a “heavy presumption” against their constitutionality. Forsyth County, 505 U.S. at 130, 112 S.Ct. 2395. Without acknowledging the constitutionally suspect nature of prior restraints, the dissenters would uphold the permitting requirement on the weakest of rationales— i.e., that the requirement helps the City identify and punish rule breakers. As already discussed at length, the City need not implement á broadly applicable prior restraint to achieve these objectives. Allowing such an “intolerable infringement on First Amendment rights” therefore simply cannot be countenanced.

VIII. Conclusion

First Amendment protections are robust, yet at the same time fragile and precious. Often, government restrictions on speech seem perfectly reasonable at first glance, and the encroachment on expression forgivable in pursuit of convenience or good manners. But seventy years of law beginning with Hague v. CIO, has laid down the basic principle that there are a few government-owned areas — of which public parks are the preeminent example — in which the values underlying the First Amendment favor communication among citizens over merely reasonable speech restrictions, and require instead that any regulation of speech be targeted at real problems, and carefully calibrated to solve those problems. In other words, while some — among them, the dissenters in this case — might prefer- a “Truman Show” version of pristine placidity in our public parks, our First Amendment jurisprudence rests on a very different vision.

The standards for valid regulation in traditional public fora are just moderately stringent, an intermediate level of scrutiny in the contemporary constitutional lingo. But the First Amendment interests advanced by the developed time, place, and manner jurisprudence does require that we apply that mid-level scrutiny with care, paying attention to the details of the regulation at issue, the state of the record, and the fit between the regulation and the governmental interest asserted. Having done so, we conclude that none of the challenged Rules qualify as reasonable time, place, or manner restrictions on the current record and that the district court’s grant of summary judgment to Berger should be affirmed as to all but the location regulation, Rule F.5, and that the validity of Rule F.5 must be determined on remand, as the grant of summary judgment was improper.

AFFIRMED IN PART and REMANDED IN PART.

1 . The City has delegated its rulemaking authority over the Center to the Center’s Director. See Wash. Mun.Code § 17.04.040.

2 . The First Amendment states that "Congress shall make no law ... abridging the freedom of speech, ... or the right of people peaceably to assemble....” U.S. Const. amend. I; see also Lovell v. City of Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 82 L.Ed. 949 (1938) (holding that the First Amendment's prohibitions also apply to state and local government rule-makers).

3 . Although the City argued at the district court that the Seattle Center was only a limited public forum and so subject to more stringent government regulation than a traditional public forum, see Perry, 460 U.S. at 45-46, 103 S.Ct. 948, it does not on appeal challenge the district court’s determination that the "Seattle Center is a traditional public forum.” The record supports this characterization, as Judge Smith ably demonstrates in his separate opinion.

4 . Music and performance art are forms of expressive activity protected by the First Amendment. See Ward, 491 U.S. at 790, 109 S.Ct. 2746; Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65-66, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981) ("Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works fall within the First Amendment guarantee.”) (collecting cases).

5 . Chief Judge Kozinski argues that this case and Watchtower Bible "have about as much in common as bananas and boomerangs.” Kozinski Dissent at 1072. The comparison is colorful, but the Chief Judge’s attempt to brush aside Watchtower Bible does not work, for a myriad of reasons. First, and contrary to the Chief Judge’s contention, performance art, like door-to-door canvassing, has historically served an important role in the dissemination of ideas. See Gould Dissent at 1074 ("Speech in the form of music, drama, or performance has played a vital role in our society and deserves First Amendment protection. Some of our culture’s most valued written works originated as spoken performances."). Second, the Seattle Center’s permitting requirement, like the permitting requirement in Watchtower Bible, significantly inhibits spontaneous speech. This critical point, which the Chief Judge ignores, was an important aspect of the Supreme Court’s holding in Watchtower Bible. Third, there is no reason to believe that street performers are less interested in maintaining their anonymity from the government than door-to-door canvassers or other purveyors of potentially unpopular ideas. See Watchtower Bible, 536 U.S. at 166, 122 S.Ct. 2080 ("The fact that circulators revealed their physical identities did not foreclose our consideration of the circulators’ interest in maintaining their anonymity [in Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999)]. In the Village, strangers to the resident certainly maintain their anonymity, and the ordinance may preclude such persons from canvassing for unpopular causes.”). Fourth, as noted, the ordinance applies whether or not the street performer solicits funds, and the definition of "street performer” includes individuals who do not solicit funds. Finally, like the permit regulation in Watchtower Bible, the permitting requirement in this case applies to individuals who communicate their message to groups as small as two or three others. In short, the principles set forth by the Supreme Court in Watchtower Bible apply with as much force in this context as they did in the context of door-to-door canvassers.

6 . The Second Circuit recently upheld a single-speaker permitting requirement in Hobbs v. County of Westchester, 397 F.3d 133, 150 (2d Cir.2005). But the regulation in Hobbs, as interpreted by the Second Circuit, required individuals who planned to perform on public property to obtain a permit only if they planned to use “props and/or equipment,” so the permit requirement was triggered by conduct, not speech. Id. at 151. Also, the court did not directly consider the constitutionality of the permitting requirement. Rather, it evaluated the constitutionality of an Executive Order which prohibited the issuance of permits to individuals who had been previously convicted of a sex offense against a minor, and whose planned performance was designed to attract children. Id. at 152. In that narrow context, the court upheld the prohibition as a valid time, place, and manner restriction.

7 . Although street performers do, of course, hope to draw crowds, this goal is of little moment to our analysis. The individual protestors in Rosen and Grossman also undoubtedly hoped to attract crowds of people eager to learn their views. But we have emphasized that advance registration permits are only appropriate for larger crowds than any street performer at the Seattle Center is likely to draw at one time. See Long Beach Area Peace Network v. City of Long Beach, 522 F.3d 1010, 1033 (9th Cir.2008) ("Although it is a close question, we hold that a group of seventy-five people using a public open space in Long Beach is large enough to warrant an advance notice and permitting requirement.”). As we note later, see infra pp. 1044-45, an otherwise valid, general permit requirement applicable to large groups could be applied to street performers, but only if the crowd attracted is in fact large enough to reach the minimum crowd size covered by that valid requirement.

8 . In his dissent, Chief Judge Kozinski concedes that "individual-to-individual and small group-to-small group interactions generally do not pose the sort of problems that time, place and manner rules are designed to deal with.” Kozinski Dissent at 1072. The Seattle Center’s permitting requirement implicates just such interactions. Under the current rules, Michael Berger must obtain a permit whether he wishes to perform his magic act for groups of two or three others or for groups of one hundred or more. And nothing in the record indicates that crowds — even crowds of fifty or seventy-five people — gather around street performers at the Seattle Center. In other words, the Seattle Center’s permitting requirement impinges on the very individual-to-small group interactions that even the Chief Judge acknowledges are not problematic.

9 . Although the City stated at oral argument that issuance of the permits is non-discretionary, we note that Rule F.2, which lists the "terms and conditions" for obtaining and retaining a permit, indicates otherwise. For example, Rule F.2 vests the Director with the power to revoke a permit "for convenience,” thereby seeming to provide the Director with some measure of discretion over which performers are entitled to perform at the Center.

Rules that grant licensing officials undue discretion are not constitutional. See Forsyth County, 505 U.S. at 131, 112 S.Ct. 2395 ("[A] law subjecting the exercise of First Amendment freedoms to the prior restraint of a license must contain narrow, objective, and definite standards to guide the licensing authority.” (internal quotation marks and citations omitted)); Thomas, 534 U.S. at 323, 122 S.Ct. 775. Berger does not challenge the permitting requirement on undue discretion grounds, however. We therefore assume, without deciding, that Rule F.2 does not provide the Director with undue discretion over the permitting system.

10 . Chief Judge Kozinski describes our effort to distinguish Cox and Poulos. on this ground as "clumsy.” Kozinski Dissent at 7805. In the Chief Judge's opinion, the fact that the City’s permitting requirement allows the performer to "perform any time he wishes ... for as long as he wishes” indicates that it is a less restrictive restraint on speech than those in Cox and Poulos.

The Chief Judge's argument misses our crucial point: it is the very fact that the permitting schemes in Cox and Poulos required applicants to specify the day and hour of their gathering that ensured that the restraints at issue did, in fact, promote the government’s legitimate interest in coordinating multiple uses of a public space. In other words, the permitting requirement in Cox and Poulos accomplished more than the mere identification of potential speakers.

In this case, the City simply cannot argue that its permitting requirement promotes any possible coordination of use purpose. The only purpose that the City's permitting requirement serves is to force potential speakers to identify themselves to the government. Standing alone, such an interest is decidedly not constitutional, see Watchtower Bible, 536 U.S. at 166, 122 S.Ct. 2080, and the Supreme Court has never held otherwise.

11 . The Rules also require individuals or groups to obtain a license if they use electrical power outlets, tables, temporary stages, flammable liquids, or sound amplification equipment. Rule E. This aspect of the Rules has not been challenged.

12 . See Rule F.7.a (prohibiting performers from '‘treating] any person or animal in a manner that is aggressive, menacing, vulgar, profane or abusive”).

13 . According to one city official, "Before a street performer's permit is suspended, Seattle Center: 1) gathers information about the alleged rule violation(s); 2) sends the street performer notice of the alleged violation(s) and gives the performer the opportunity to respond; and 3) makes a decision based upon the alleged incident and the performer’s response, if any.” The City does not explain why this system would not function just as well if the penalty was the suspension of the performer's future right to perform at the Center, rather than the suspension of his permit.

14 . The City states that, absent the ability to suspend a performer’s license, it would have no other option but to completely ban a non-rule-abiding performer from the Center’s grounds. This argument is unpersuasive, for two reasons. First, there is no reason why identifying a performer who has had his privilege to perform on the Center’s grounds suspended would be more difficult than identifying a performer who has had his permit suspended. Both would require an enforcement officer to consult a database which contained identifying information. The essence of the inquiry is no different.

Second, as a practical matter, the City does not appear to have had trouble identifying the limited number of street performers who regularly appear at the Center. The Appellee, "Magic Mike,” is apparently quite well-known to the Center's security staff. In addition, its incident reports contain references to such distinctive characters as the hula-hooping magician and "the puppet guy.”

15 . The City reports that, in the year prior to the introduction of the revised Rules, 70% of the performer-related complaints it received were either generated by or were in reference to "Magic Mike” Berger.

16 . Although inclusion of the term 'Vocalizing'' could be read to apply the permitting requirement to any individual who wished to speak out loud while traversing the Seattle Center's grounds, we assume that the permitting rules apply only to those engaged in artistic expression.

17 . In support of their argument that the Center’s permitting requirement is constitutional, Chief Judge Kozinski and Judge Gould cite Thomas v. Chicago Park Dist., 534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002) for the proposition that the Supreme Court has previously “[upheld a] permitting requirement for large events in public parks.” Gould Dissent at 1075-76; Kozinski Dissent at 1066-67, 1069. As noted, regulating "street performers” is not tantamount to regulating “large events.” More importantly, as we have twice noted, “Thomas considered only a challenge to the breadth of official discretion, not the other requirements of the time, place, and manner jurisprudence.” Santa Monica Food Not Bombs, 450 F.3d at 1037 n. 15 (citing Galvin v. Hay, 374 F.3d 739, 747 n. 5 (9th Cir.2004) (internal alterations and quotations omitted)). Notably, the Thomas Court did not consider, because the issue was not raised, whether the Chicago Park District’s fifty-person threshold was high enough to meet constitutional standards. Our caselaw indicates that it may be too low. See Long Beach Area Peace Network, 522 F.3d at 1033; Santa Monica Food Not Bombs, 450 F.3d at 1043. In any event, because Thomas addressed a specific type challenge that is not raised here, it is not useful in evaluating the constitutionality of the Center's permitting requirement.

18 . The Seattle Center's badge requirement is intimately connected to the permitting requirement. See Rule F.l ("Permits, when issued, shall be evidenced by a badge that shall be worn or displayed by the performer in plain view at all times during a performanee.”). Because we hold the Center's permitting requirement unconstitutional and because no badges of the kind required can be issued without permits, we need not separately evaluate the constitutionality of the badge requirement.

19 . The performance location rule is over-broad in the sense that it relies on a constitutionally infirm definition of “street performer.” See supra Part III.B.2. If the City plans to defend the constitutionality of the performance location rule on remand, it must also provide a narrowing construction that comports with the principles discussed in Part III.B.2.

20 . The City asserts that the number and location of the performance areas were determined through a public process in which street performers participated. The City has yet, however, to introduce any of the details or specific results of this public process. Inquiry into such details would go a long way towards determining the adequacy of the chosen locales.

21 . In dissent, Judge Gould confuses viewpoint-neutrality with content-neutrality. Gould Dissent at 1078 (noting that “there are no favored organizations or persons — no street performer advancing any cause can solicit funds from Seattle Center patrons in an active way”). The Center’s passive solicitation rule is certainly viewpoint-neutral in that it affects all street performers regardless of their message. But, for the reasons discussed above, it is nonetheless content-based, as it singles out certain content for special treatment.

22 . That an officer must evaluate the content of a message to determine whether a regulation applies is evidence that the regulation is content-based, although it is not dispositive. See Forsyth County, 505 U.S. at 134, 112 S.Ct. 2395. The "officer must read it” test is not always determinative of the issue of whether a regulation is facially content-based. See Ctr. for Bio-Ethical Reform, 533 F.3d at 789 n. 5 ("Whether an officer must read a message is persuasive evidence of an impermissible content-based purpose, but is not dispositive.”).

23 . In ACORN, we held that a City of Phoenix ordinance prohibiting the solicitation of donations from people in vehicles stopped at red lights was content-neutral. 798 F.2d at 1267-68. We also noted approvingly that the ordinance did not enjoin individuals from otherwise distributing literature to or orally communicating with vehicle occupants. Id. at 1271. Read broadly, this holding would conflict with our current conclusion, as well as with our holding in ACLU II. See ACLU II, 466 F.3d at 794 (holding that a ban on solicitation, but not on other messages, was content-based).

We do not interpret ACORN so broadly, however. We see no indication that the ordinance at issue forbade passing out handbills asking car drivers or passengers to contribute by mail to a charity or cause, as opposed to soliciting on-the-spot donations. That is, the ordinance at issue in ACORN, like that in Lee, prohibited only the immediate physical exchange of money. See Lee, 505 U.S. at 704-05, 112 S.Ct. 2701 (Kennedy, J., concurring). Such a regulation is not a content-based regulation of speech, and so does not run afoul of the content neutrality requirement.

24 . "Fighting words” are, of course, proscribable under the First Amendment. See Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942)).

25 . Although we hold that Center patrons are not a "captive audience” for First Amendment purposes when frequenting the Center’s public open areas, we certainly do not mean to suggest that the City could not promulgate rules that prohibit and punish disruptive conduct during planned Center events or at indoor Center venues. As discussed below, such a rule would, of course, have to be much more narrowly tailored than the sweeping ban on speech that the City has adopted here.