Berger v. City of Seattle

• Decision Date: 24 June 2009
• Docket Number: No. 05-35752.,05-35752.
• Citation: 569 F.3d 1029
• Parties: 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, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

569 F.3d 1029

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

[569 F.3d 1030]

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.

Argued and Submitted September 23, 2008.

Filed June 24, 2009.

[569 F.3d 1034]

Elena Luisa Garella, Law Office of Elena Luisa Garella, Seattle, WA; Robert Corn-Revere, Davis Wright Tremaine LLP, Washington, DC, for the plaintiff-appellee.

Gary Keese and Carlton W. Seu, Seattle City Attorney's Office, Seattle, WA, for the defendants-appellants.

Sarah A. Dunne, American Civil Liberties Union, Seattle, Washington on behalf of amicus curiae American Civil Liberties Union.

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 ALEX KOZINSKI, Chief Judge, HARRY PREGERSON, STEPHEN REINHARDT, MICHAEL DALY HAWKINS, KIM McLANE WARDLAW, RONALD M. GOULD, RICHARD A. PAEZ, MARSHA S. BERZON, RICHARD C. TALLMAN, MILAN D. SMITH, JR. and N. RANDY SMITH, Circuit Judges.

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.1, 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.1 & F.2: The Permit & Badge Requirements

A. Overview

Rule F.1 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.1. 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.1 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.1 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...