Case NameBerger v. City of Seattle 
Citation: 512 F.3d 582 (9th Cir. 2008), Reheard en banc at 569 F.3d 1029 (9th Cir. 2009) 
TopicsTime, Place and Manner RestrictionsPublic Forum

In 2003, Michael Berger, a performance artist who specializes in illusions and balloon sculpting, sued the City of Seattle for violating street performers’ First Amendment rights, because of regulations involving performing at the Seattle Center. The rules that Mr. Berger contested stated that all street performers must obtain a permit, wear a badge, perform only in certain areas of the Center and not verbally solicit donations. He argued that the rules violated his First Amendment rights, because they were only geared towards regulating the speech of street performers and not other citizens. He also said that mandatory badges inhibited expression and unfairly exposed artists’ identity. Stating that the city’s regulations facially violated the First Amendment, the district court granted summary judgment in Berger’s favor during 2005. He was awarded $1 in nominal damages and $22,000 in attorney’s fees and costs.

The City of Seattle appealed this decision in 2007. In January 2008, a panel of three judges of the Ninth Circuit Court of Appeals decided that the city’s regulations were valid and did not violate the First Amendment. In doing so, the Court of Appeals reversed lower court’s decision to grant Berger damages. When examining the issue, the Court of Appeals considered whether the permit obligation discriminated based on content, whether the government had a significant interest in enforcing the regulations and whether there were ample alternatives for expression. It found that:

  1. Permits were distributed without regard to the content of the message and, therefore, the regulation was not content-based and was thus permissible.
  2. The city had a significant interest in enforcing the regulations so as to deter patron harassment, disagreements between performers and congested pathways.
  3. There were ample alternative modes for expression as street performers could choose to perform outside of Seattle Center, display signs asking for donations or disseminate flyers and talk while walking.

The court also concluded that the badge requirement was intertwined with the permit requirement and was valid. In arriving at this conclusion, the Court of Appeals determined that the integrity of a street performer’s costume and his right to hide his identity were not as significant as they would be for a protester or someone expressing religious beliefs.

However, Berger’s case did not end there. On June 24, 2009, the Ninth Circuit Court of Appeals reheard the case, this time sitting en banc (before an entire panel of 11 judges). Upon rehearing the case en banc, the Court of Appeals arrived at a different conclusion, this time finding that the city’s regulations acted as a prior restraint and were thus presumptively unconstitutional.

The Court of Appeals agreed with the city that there were significant government interests at play in promulgating the permit regulations (including deterring harassment of audience members and reducing territorial disputes among performers). However, the Court ultimately concluded that the regulations in question were not sufficiently tied to furthering these government interests.

Other factors contributing to the Court of Appeals’ ruling against the city include the fact that the regulations were not the least-restrictive means by which the city could have furthered its interests and that it remained questionable whether the regulations left open ample alternative channels for communication for those who did not want to participate in the permit scheme.

These materials are not intended, and should not be used, as legal advice. They necessarily contain generalizations that are not applicable in all jurisdictions or circumstances. Moreover, court decisions may be superseded by subsequent rulings, and may be subject to alternative interpretations. Corrections, clarification, and additions are welcome here.