Court of Appeals to rehear busker's case

A popular Seattle street performer who earlier this year lost a federal appeal on his challenge to regulations at Seattle Center has won another review of the case before the 9th U.S. Circuit Court of Appeals.

In January, a three-member panel of the appeals court overturned a decision by a Seattle federal judge who had found that rules the center imposed on street performers violated free speech and equal protection. Earlier this month, however, the appeals court agreed to rehear the case en banc, meaning that a larger panel of at least 11 judges will reconsider the case.

The case was brought by a longtime Seattle busker, Michael Berger, also known as "Magic Mike." He had filed a civil-rights lawsuit in 2003 challenging Seattle Center rules requiring him to buy a $5 permit, perform only in specific locations and only seek donations.

In 2005, U.S. District Judge James Robart ruled for Berger before the case went to trial. After the decision, Berger settled for $22,000, but the case continued as the city appealed and both sides continued to work on the civil-rights issues.

When the city prevailed on appeal by a 2-1 vote in January, Berger's attorney, Elena Garella, asked the appeals court for reconsideration on the strength of the dissent by Judge Marsha Berzon.

Berzon wrote that the two-judge majority did not see "how radically its holdings alter our law, creating a legal structure which will make it far easier to shut down discourse. ...

"We have always viewed any limitations on speech in traditional public fora [forums] with extreme skepticism," she wrote. "Today's opinion departs from that long tradition."

"Both Magic Mike and I are gratified that the 9th Circuit is willing to take another look at this case," Garella said Wednesday.

In granting the review, the court said the opinion issued in January by the three-member panel cannot be cited as precedent.

"So, at least for the time being, free-speech rights are protected in our public parks," Garella said.

Garella said Berger's case is supported by the American Civil Liberties Union of Washington and the Alliance Defense Fund.

Assistant City Attorney Gary Keese said he could not comment on the ruling. He said oral arguments are scheduled for September.

Mike Carter: 206-464-3706 or mcarter@seattletimes.com