512 F.3d 582 (9th Cir. 2008), 05-35752, Berger v. City of Seattle

Docket Nº:05-35752.
Citation:512 F.3d 582
Party Name:Michael James BERGER, a single man also known as Magic Mike, Plaintiff-Appellee, v. CITY OF SEATTLE; Virginia Anderson, Director of Seattle Center; Michael Anderson, Emergency Service Manager for Seattle Center; Ten Unknown Employees/Officers, of the Seattle Center and the City of Seattle, all in both their individual and official capacities, Defen
Case Date:January 09, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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512 F.3d 582 (9th Cir. 2008)

Michael James BERGER, a single man also known as Magic Mike, Plaintiff-Appellee,


CITY OF SEATTLE; Virginia Anderson, Director of Seattle Center; Michael Anderson, Emergency Service Manager for Seattle Center; Ten Unknown Employees/Officers, of the Seattle Center and the City of Seattle, all in both their individual and official capacities, Defendants-Appellants.

No. 05-35752.

United States Court of Appeals, Ninth Circuit.

Jan. 9, 2008

Argued and Submitted March 7, 2007.

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Gary E. Keese, Assistant City Attorney, Seattle, WA, argued the cause for the defendants-appellants; Thomas A. Carr, Seattle City Attorney, Seattle, WA, was on the briefs.

Elena Luisa Garella, Elena Luisa Garella PC, Seattle, WA, argued the cause for the plaintiff-appellee and was on the brief.

Appeal from the United States District Court for the Western District of Washington; James L. Robart, District Judge, Presiding. D.C. No. CV-03-03238-JLR.

Before: DIARMUID F. O'SCANNLAIN and MARSHA S. BERZON, Circuit Judges, and SAM E. HADDON, [*] District Judge.

Opinion by Judge O'SCANNLAIN; Partial Concurrence and Partial Dissent by Judge BERZON.


O'SCANNLAIN, Circuit Judge

We must determine the bounds of a city's authority to restrict expression in a public forum.


The public forum is the "Seattle Center," an entertainment zone covering roughly 80 acres of land in downtown Seattle, Washington. Each year, the Seattle Center's theaters, arenas, museums, exhibition halls, conference rooms, outdoor stadiums, and restaurants attract nearly ten million visitors. The city wields authority over this large tract of land and has delegated its power to promulgate rules to the Seattle Center Director ("Director"). See Seattle, Wash., Municipal Code § 17.04.040. In 1978, the Director issued rules setting forth procedures and requirements governing use of the Seattle Center campus. In 2002, after an open process of public comment, 1 the Director issued a superseding set of provisions in response to specific complaints and safety concerns, which became known as the Seattle Center Campus Rules.

This litigation, originally brought by Michael Berger, a street performer, requires us to consider the validity of five Campus Rules. The first four affect street performers only: Rule F.1 requires a permit for street performances and requires badges to be worn during street performances, Rule F.2 sets the terms of conditions of obtaining a permit, Rule F.3.a bars active solicitation by street performers, and Rule F.5 limits street performances to sixteen

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designated locations.2Another provision affects all persons in the Seattle Center: Rule G.4 forbids speech activities within 30 feet of a captive audience. Berger mounts a facial attack on the constitutionality of these five restrictions.

Berger has performed in the Seattle Center since the 1980s, making balloon creations and "talk[ing] to his audience about his personal beliefs, especially the importance of reading books." In the 1990s, Seattle Center authorities ejected Berger for various violations of the 1978 Campus Rules. In 1996, he sued the authorities, alleging violations of the First and Fourteenth Amendments under 42 U.S.C. § 1983. The city moved for summary judgment, but the magistrate judge denied the motion on the grounds that "substantial authority" supported "a constitutionally protected right to perform magic tricks, create balloon sculptures, and receive voluntary donations in a public park." That case ultimately settled.

When the revised Campus Rules were enacted in 2002, Berger obtained a permit.3 Yet he continued to face problems with the Seattle Center authorities: members of the public filed numerous complaints alleging that Berger exhibited threatening behavior and Seattle Center staff reported several rule violations. In 2003, Berger filed this complaint seeking damages and injunctive relief for alleged civil rights violations. In particular, he raised as-applied and facial challenges to Rules F.1, F.2, F.3.a., F.5, F.7.a, 4 and G.4. In 2005, the district court granted summary judgment to Berger, concluding that these rules facially violated the First Amendment.5 Pursuant to a stipulation by the parties, the city paid Berger $1 in nominal damages and $22,000 in attorney's fees and costs and the court dismissed with prejudice Berger's remaining and potential claims.6

The city timely appeals the district court's order of summary judgment and seeks reversal with instructions to enter summary judgment in its favor.


The First Amendment states that "Congress shall make no law . . . abridging the freedom of speech, or of the press." U.S. Const. amend. I, cl. 2. Expressive activity must be particularly protected in a traditional public forum, such as the Seattle Center:7

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In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks .... In these quintessential public forums, the government may not prohibit all communicative activity.

Perry, 460 U.S. 37, 46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). However, "[t]he principles of First Amendment are not to be treated as a promise that everyone with opinions or beliefs to express may gather around him at any public place and at any time a group for discussion or instruction." Poulos v. New Hampshire, 345 U.S. 395, 406, 73 S.Ct. 760, 97 L.Ed. 1105 (1953); see also Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931) ("[P]rotection even as to previous restraint is not absolutely unlimited.").

"Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions." Clark v. Comty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). Such restrictions must satisfy three conditions to be enforceable: (1) they must be "justified without reference to the content of the regulated speech,"8 (2) they must be "narrowly tailored to serve a significant governmental interest," and (3) they must "leave open ample alternative channels for communication of the information." Id. In applying this three-pronged test to the five rules challenged at bar, we review the district court's grounds for summary judgment de novo. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).



We begin with Berger's challenge to the permit requirement. Rule F.1 states that any person wishing to conduct a street performance must obtain a $5 annual permit from the Director. This rule dovetails with the badge requirement in Rule F.1, which mandates that a badge "shall be worn or displayed by the performer in plain view at all times during a performance." Although we address the permit and badge requirements separately, we note that their purposes are intertwined. See infra, note 13.

Berger argues that the permit rule fails all three prongs of the test for a reasonable time, place, or manner restriction. The district court held that the requirement passed the first prong of the test but failed the second: the rule was content-neutral but was not sufficiently tailored to a significant governmental interest. Granting summary judgment to Berger on that ground, the district court never reached the third prong of the test.


To determine whether a rule is content neutral, "we do not make a searching inquiry of hidden motive; rather we look at the literal command of the restraint." Menotti v. City of Seattle, 409 F.3d 1113, 1129 (2005). "The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)

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A licensing statute lacks content neutrality if it burdens only certain messages or if it imposes a burden on all messages, but allows officials unchecked discretion to treat messages differently. The Supreme Court's decisions in Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941), Poulos v. New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105 (1953), and Thomas v. Chicago Park District, 534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002), apply this principle and offer useful guidance.9

In Cox, the Supreme Court affirmed the convictions of five Jehovah's witnesses who had violated a state statute mandating a license to conduct a "parade or procession" on a public street. 312 U.S. at 570, 61 S.Ct. 762. The Court clarified that the state could enact a legitimate licensing system to ensure "comfort or convenience in the use of streets" but could not allow licensing officials to use the system as a means of content censorship. Id. at 577, 61 S.Ct. 762. Finding "no evidence that the statute ha[d] been administered otherwise than in the fair and non-discriminatory manner which the state court [ ] construed it to require," the Court read the statute to be content neutral. Id. at 577, 61 S.Ct. 762. The court concluded that the licensing scheme was a valid "exercise of local control over the use of streets for parades and processions." Id. at 578, 61 S.Ct. 762.

In Poulos, the Supreme Court reiterated that the First Amendment does not preclude permit requirements. There, the Court examined a city ordinance that stated: "No theatrical or dramatic representation shall be performed or exhibited and no parade or procession upon any public street or way, and no open air public meeting upon any ground abutting thereon shall...

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