SAN FRANCISCO (CN) – A Seattle balloon artist known as “Magic Mike” won his 9th Circuit appeal of the city’s requirement that he get a $5 permit and badge to perform his shtick outside the Seattle Center. But dissenting Chief Judge Alex Kozinski derided the 8-3 majority for its exacting standards, saying, “No rules written by man can withstand such persnickety scrutiny.”
In 2002, the city adopted a set of five “Seattle Center Campus Rules,” four of which applied to street performers. The rules require performers to get a permit and wear badges, bar active panhandling and limit performances to 16 designated locations.
Michael Berger aka “Magic Mike” said the rules violated his First Amendment right to perform tricks, make balloon animals and “talk to his audience about his personal beliefs, especially the importance of reading books.”
The district court ruled for Berger and awarded him $1 in nominal damages, but a three-judge panel of the federal appeals court in San Francisco reversed. Judge O’Scannlain found the rules content-neutral and narrowly tailored to quell territorial disputes among performers and to protect patrons from “browbeating” and other hostile conduct.
The judges voted to rehear the case en banc.
Reversing the panel’s decision, the judges rested their analysis on one bedrock principle: “The protections afforded by the First Amendment are nowhere stronger than in streets and parks,” wrote Judge Berzon, the sole dissenting judge in the panel ruling.
Addressing each rule in turn, Berzon concluded that the city failed to justify its sweeping restrictions on street performers’ free-speech rights. The court affirmed summary judgement for Berger on all but the location rule, which it remanded to determine the rule’s validity.
The majority and dissenting judges dueled briefly over whether the city’s permitting requirements should apply only to larger groups. The majority believed that they should, as it showed that the rules were narrowly tailored; the dissenters called the numerical floor “ridiculous.”
“It’s ridiculous to suggest that performers may be required to obtain permits if the crowd that gathers to see them is of a certain size, but not if it is not,” Chief Judge Kozinski wrote. “How is anyone to know in advance?”
He added: “The majority plays a shell game when it confidently declares that ‘[t]he city’s asserted interest in coordinating multiple uses of the Center could also be achieved as effectively without the permitting requirement.’
“How is the city to achieve these objectives, in the majority’s view? Why, it’s by use of the designated locations rule that the majority fails to uphold elsewhere in its opinion. And if I had ham, I could have some very nice ham and eggs, if I had eggs. Sophistries such as these are cold comfort to those who have the actual responsibility for operating an enterprise the size and complexity of Seattle Center.”
The majority “overstates the problems that the rules supposedly cause for the street performers, and minimizes the problems that the street performers caused for the Center and its patrons before the rules were instituted,” Kozinski wrote in a dissent joined by Judge Tallman.
Judge Gould wrote a separate dissenting opinion, joined by Tallman and Kozinski. Judge N.R. Smith concurred in part, saying all but the location rule violated the Constitution.