Appeals court punctures Seattle's attempt to regulate balloon artist

The city of Seattle's efforts to regulate balloon artist "Magic Mike" Berger and other street performers at Seattle Center violate free speech, the 9th U.S. Circuit Court of Appeals has ruled.

Seven judges on an 11-member panel reviewing the case found that rules requiring street performers to obtain a permit from the city-owned and -operated Center are too broad, as well as unconstitutional.

"This is a significant victory," said Doug Honig, with the American Civil Liberties Union of Washington, which filed a brief supporting Berger. "It's particularly significant that the court recognized the Seattle Center as a park, where speech is most protected."

Berger, who is out of the country, said in an e-mail that the ruling shows "the city needs to wake up and read the Constitution."

In January 2008, 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. Last July, however, the appeals court agreed to rehear the case "en banc," meaning that the larger panel would consider the case.

Berger had sued the city and Seattle Center challenging rules requiring him to pay $5 for a permit, to perform only in a single location at the 80-acre Center and to seek only donations instead of charging for his balloon creations.

The Center imposed the rules in an attempt to address aggressive performers and those who drew unruly or large crowds. Berger, according to the city, has been aggressive and rude to Center patrons.

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.

When the 9th Circuit panel voted 2-1 to overturn Robart, Berger's attorney, Elena Garella, asked the appeals court for reconsideration on the strength of the dissent by Judge Marsha Berzon.

Berzon authored the 50-page majority opinion in Wednesday's 108-page ruling, concluding that while government restrictions on speech might seem "reasonable at first glance," free speech trumps in public parks, "where a speaker's First Amendment protections reach their zenith."

Efforts to regulate speech in public places have to be targeted at "real problems, and carefully calibrated to solve those problems." Blanket restrictions to address a few unruly individuals would be "constitutionally suspect."

Berzon, however, notes that the U.S. Supreme Court has never directly addressed the issue of "single-speaker permitting requirements for speech in a public forum."

Carl Tobias, a law professor at the University of Richmond in Richmond, Va., said the issue is ripe for review by the high court.

"This is a very strong First Amendment ruling, and it makes it very hard for municipalities to craft rules to address the behavior of individuals in public places," he said.

Berzon's analysis came under sharp criticism by Chief Judge Alex Kozinski, who authored the dissent.

"If the majority here is right, then Seattle and other municipalities hoping to use their parks to promote civic virtue, neighborliness, hospitality and the peaceful enjoyment of the arts cannot possibly draft a set of rules that will protect visitors, concessionaires and other artists from overly aggressive street performers," Kozinski wrote.

"The rules adopted by Seattle Center are a measured and reasonable response to a real problem; none of them stifles speech in any meaningful way, and none is unconstitutional."

Seattle Assistant Attorney Gary Keese said the city is reviewing the opinion and considering its options, which would include an appeal to the U.S. Supreme Court.

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