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ICHAEL JAMES BERGER, a ingle man also known as Magic Mike,
Plainiff-Appellee, v. CITY OF SEATTLE; VRGINIA ANDERSON, Director of
Seattle Cnter; MICHAEL ANDERSON, Emergency Srvice Manager for Seattle
Center; TEN UNKNWN EMPLOYEES/OFFICERS, of the Settle Center and the City
of Seattle, al in both their individual and fficial capacities,
Defendants-Appellants.
N. 05-35752
UNITED STATESCOURT OF APPEALS FOR THE NINTH CIRCUIT
512 F.3d 582; 2008 U.S. App. LEXIS331
March 7, 2007, Argued and Submitted, Seattle, Washington
January 9, 008, Filed
PRIOR HISTORY: [*1] Appeal from the United States DistrictCourt for the
Western District of Washington. D.C. No. CV-03-03238-JLR. ames L. Robart,
District Judge, Presiding.
COUNSEL: Gary E. Keese, Assistnt City Attorney, Seattle, Washington, argued
the cause for the defendats-appellants; Thomas A. Carr, Seattle City
Attorney, Seattle, ashington, was on the briefs.
Elena Luisa Garella, Elena Luisa Garella PC, Sattle, Washington, argued the
cause for the plaintiff-appellee and was o the brief.
JUDGES: Before: Diarmuid F. O'Scannlain and Marsha S. Berzon, ircuit
Judges, and Sam E. Haddon,* District Judge.*
The Honorable Sam E. Hddon, United States District Judge for the District
of Montana, sittingby designation. Opinion by Judge O'Scannlain; Partial
Concurrence and Partial Dissent by Judge Berzon.
HEADNOTE: City rule requiring permit for performers in entertainment zone
wascontent neutral under the First Amendment because it did not burden
epressive activity based on disagreement with message of performer. It was
narowly tailored to promote substantial government interest of maintaining
orde in zone and to provide harassment-free facilities.
OPINION
O'SCANNLAIN,Circuit Judge:
We must determine the bounds of a city's authority to restrict expression in
a public forum.
I The public forum is the "Seattle Center," an entertainment zone coveringroughly 80 acres of land in downtown Seattle, Washington. Each year, the
Seatle Center's theaters, arenas, museums, exhibition halls, conference
rooms outdoor stadiums, and restaurants attract nearly ten million [*2]
visitors. he city wields authority over this large tract of land and has
delegated its ower to promulgate rules to the Seattle Center Director
("Director"). Se Seattle, Wash., Municipal Code 17.04.040. In 1978, the
Director issed rules setting forth procedures and requirements governing
use of the Seatle Center campus. In 2002, after an open process of public
comment, 1 the Director issued a superseding set of provisions in response
to specificcomplaints and safety concerns, which became known as the
Seattle CenterCampus Rules.
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FN1 Before enactment, the rules were "published in the English language
continuously" for six months in the Seattle area. In response to "comments
from street performers," the Director made several changes t the rules,
such as expanding the number of preordained locations at which prformances
could take place. The 2002 version was formally adopted on Ma 31, 2002.
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This litigation, originally brought by Michael Berger, a street peformer,
requires us to consider the validityof five Campus Rules. The first four
affect street performers only: Rule F.1 rquires a permit for street
performances and requires badges to be worn duringstreet performances, Rule
[*3] F.2 sets the terms of conditions of obtaining a permit, Rule F.3.a bars
active solicitation by street performers, and Rule F.5 limits street
performances to sixteen designated locatons. n2 Another provision affects
all persons in the Seattle Center: Rule G.4forbids speech activities within
30 feet of a captive audience. Bergermounts a facial attack on the
constitutionality of these five restrictions.
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FN2 Te Seattle Center has not enforced these rules since the district court
ejoined their enforcement in May 2005. See infra.
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Berger has performed in the SeattleCenter since the 1980s, making balloon
creations and "talk[ing] to his adience about his personal beliefs,
especially the importance of readingbooks." In the 1990s, Seattle Center
authorities ejected Berger for variousviolations of the 1978 Campus Rules.
In 1996, he sued the authorities, lleging 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
"subtantial authority" supported "a constitutionally protected right to
perfor magic tricks, create balloon sculptures, and receive voluntary
donations in [*4] public park." That case ultimately settled.
When the revised Campu Rules were enacted in 2002, Berger obtained a
permit. n3 Yet he contiued 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 fr alleged civil rights violations. In
particular, he raised as-applied and acial challenges to Rules F.1, F.2,
F.3.a., F.5, F.7.a, n4 and G.4. In 200, the district court granted summary
judgment to Berger, concluding that thes rules facially violated the First
Amendment. n5 Pursuant to a stipulation y the parties, the city paid Berger
$ 1 in nominal damages and $ 22,000 i attorney's fees and costs and the
court dismissed with prejudice Berger' remaining and potential claims. n6
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FN3 Berger renewed his permit through the endof 2004.
FN4 Campus Rule 7.a states: "No performer shall treat any person o animal
in a manner that is aggressive, menacing, vulgar, profane, or abuive."
FN5 Having concluded that the permit requirement was unconstitutional, the
judge did "not addrss [*5] the requirement that permits 'shall be evidenced
by a badge tha shall be worn or displayed by the performer.'" Furthermore,
because Brger failed to offer grounds to support his "cursory challenge" to
Rule 7.a and "cite[d] no case authority" as to that rule, the district
court declned to consider that claim. Berger does not challenge that ruling
on appel.
FN6 The stipulation did not address the injunction of the Seattle Cente
rules, which the city contests in its appeal at bar. Berger does not dispue
the city's right to bring this appeal.
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The city timely appeals the distrit court's order of summary judgment and
seeks reversal with instructions toenter summary judgment in its favor.
II
The First Amendment states that Congress shall make no law . . . abridging
the freedom of speech, or of the pess." U.S. Const. amend. I, cl. 2.
Expressive activity must be particulrly protected in a traditional public
forum, such as the Seattle Center: n7
In places which by long tradition or by government fiat have been devotedto
assembly and debate, the rights of the State to limit expressive activit
are sharply circumscribed. At one end of the spectrum are streets nd park
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