Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL JAMES BERGER, a single 

man also known as Magic Mike,

Plaintiff-Appellee,

v.

CITY OF SEATTLE; VIRGINIA No. 05-35752

ANDERSON, Director of Seattle

D.C. No. Center; MICHAEL ANDERSON,  CV-03-03238-JLR Emergency Service Manager for

Seattle Center; TEN UNKNOWN OPINION

EMPLOYEES/OFFICERS, of the Seattle

Center and the City of Seattle, all

in both their individual and

official capacities,

Defendants-Appellants. 

Appeal from the United States District Court

for the Western District of Washington

James L. Robart, District Judge, Presiding

Argued and Submitted

September 23, 2008—San Francisco, California

Filed June 24, 2009

Before: Alex Kozinski, Chief Judge, Harry Pregerson,

Stephen Reinhardt, Michael Daly Hawkins,

Kim McLane Wardlaw, Ronald M. Gould, Richard A. Paez,

Marsha S. Berzon, Richard C. Tallman, Milan D. Smith, Jr.

and N. Randy Smith, Circuit Judges.

7741
Opinion by Judge Berzon;

Dissent by Chief Judge Kozinski;

Dissent by Judge Gould;

Partial Concurrence and Partial Dissent by

Judge N.R. Smith

7742 BERGER v. CITY OF SEATTLE
COUNSEL

Elena Luisa Garella, Law Office of Elena Luisa Garella, Seattle, Washington; Robert Corn-Revere, Davis Wright Tremaine

LLP, Washington, DC, for the plaintiff-appellee.

Gary Keese and Carlton W. Seu, Seattle City Attorney’s

Office, Seattle, Washington, for the defendants-appellants.

Sarah A. Dunne, American Civil Liberties Union, Seattle,

Washington on behalf of amicus curiae American Civil Liberties Union.

OPINION

BERZON, Circuit Judge:

In 2002, the City of Seattle promulgated a set of rules governing the conduct of visitors to one of its major attractions,

an 80-acre public park and entertainment complex known as

7746 BERGER v. CITY OF SEATTLE
the Seattle Center. The new rules regulated for the first time

the behavior of the Center’s street performers. We consider

today the constitutional validity of some of those rules.

Among other provisions, the new rules required street performers at the Seattle Center to obtain permits before performing; set out specified locations for street performances

and established a first-come, first-served rule for using the

locations; allowed only passive solicitation of funds by street

performers; and prohibited any communication, by street performers or anyone else, within thirty feet of visitors to the

Seattle Center who are waiting in line, attending an event, or

sitting in a spot available for eating or drinking. Following the

rules’ publication, “Magic Mike” Berger, a balloon artist and

frequent Seattle Center performer, filed a lawsuit challenging

the new regulations just outlined on the grounds that they violate his First Amendment rights. The district court agreed with

Berger and so invalidated all five of the challenged rules. The

City now asks us to reverse, asserting that all the regulations

impose valid “time, place, or manner” restrictions on the

actions of street performers and other park-goers. 

For the reasons discussed below, we decline to do so. The

government bears the burden of justifying the regulation of

expressive activity in a public forum such as the Seattle Center. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,

460 U.S. 37, 45 (1983). The City of Seattle has failed to meet

this burden with respect to any of the rules challenged by Berger. We therefore affirm the district court’s grant of summary

judgment to Berger, except that we remand for further factual

development concerning the validity of the locational regulation.

I. Background

The Seattle Center is a central venue for Seattle’s civic,

cultural, and social life. The Center’s roughly 80-acre expanse

of public space attracts over ten million visitors annually. It

BERGER v. CITY OF SEATTLE 7747
is home to Seattle’s iconic Space Needle, and to museums,

sports arenas, theaters, and a performance hall. The Center’s

grounds also include twenty-three acres of outdoor public

park space.

In 2002, the Seattle Center’s Director issued a revised set

of regulations concerning the use of the Center, known as the

Seattle Center Campus Rules (“Rules”).1 Among other matters, the Rules govern the use of the Center’s outdoor spaces.

Five of the Rules are relevant here: Rule F.1, which requires

“street performers” to obtain a permit before performing at

the Center and to wear a badge displaying that permit while

performing; Rule F.2, which sets forth the terms and conditions for acquiring a “Street Performer Permit”; Rule F.3.a,

which bars street performers from “actively solicit[ing] donations”; Rule F.5, which limits street performances to sixteen

designated locations; and Rule G.4, which prohibits all Seattle

Center visitors, other than Center employees and licensed

concessionaires, from engaging in “speech activities” within

thirty feet of a “captive audience.” Rule C.5 defines a “captive

audience” as “any person or group of persons: 1) waiting in

line to obtain tickets or food or other goods or services, or to

attend any Seattle Center event; 2) attending or being in an

audience at any Seattle Center event; or 3) seated in any seating location where foods or beverages are consumed.”

About a year after the Rules were promulgated, Michael

Berger, a balloon artist and Seattle street performer, filed the

complaint that gives rise to this appeal. In his complaint, Berger alleged that the five rules just summarized violate the First

Amendment both on their face and as applied to him. In 2005,

the district court granted Berger summary judgment as to his

facial challenges. Shortly thereafter, Berger and the City settled his as-applied challenges. The City now timely appeals

the summary judgment.

1The City has delegated its rulemaking authority over the Center to the

Center’s Director. See Wash. Mun. Code § 17.04.040. 

7748 BERGER v. CITY OF SEATTLE
II. General Principles

We review a district court’s legal determinations, including

constitutional rulings, de novo. See Berry v. Dep’t of Soc.

Servs., 447 F.3d 642, 648 (9th Cir. 2006). A district court’s

determinations on mixed questions of law and fact that implicate constitutional rights are also reviewed de novo. See Cogswell v. City of Seattle, 347 F.3d 809, 813 (9th Cir. 2003).

Where, as here, the key “issues aris[e] under the First Amendment,” we also conduct an independent review of the facts.

See Rosenbaum v. City & County of S.F., 484 F.3d 1142,

1152 (9th Cir. 2007). 

We begin our analysis with one bedrock principle: The protections afforded by the First Amendment2

 are nowhere

stronger than in streets and parks, both categorized for First

Amendment purposes as traditional public fora. See Perry

Educ. Ass’n, 460 U.S. at 45; Long Beach Area Peace Network

v. City of Long Beach, 522 F.3d 1010, 1021 (9th Cir. 2008).

In such fora, the government’s right “to limit expressive activity [is] sharply circumscribed.” Perry Educ. Ass’n, 460 U.S.

at 45. Among traditional public fora, public parks such as the

Seattle Center are especially important locales for communication among the citizenry, as they “ ‘have immemorially

been held in trust for the use of the public and, time out of

mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’ ” Grossman v. City of Portland, 33 F.3d 1200, 1204-05

(9th Cir. 1994) (quoting Hague v. CIO, 307 U.S. 496, 515

(1939)).3

2The First Amendment states that “Congress shall make no law . . .

abridging the freedom of speech, . . . or the right of people peaceably to

assemble. . . .” U.S. Const. amend. I; see also Lovell v. City of Griffin, 303

U.S. 444, 450 (1938) (holding that the First Amendment’s prohibitions

also apply to state and local government rule-makers). 

3Although the City argued at the district court that the Seattle Center

was only a limited public forum and so subject to more stringent government regulation than a traditional public forum, see Perry, 460 U.S. at 45-

46, it does not on appeal challenge the district court’s determination that

the “Seattle Center is a traditional public forum.” The record supports this

characterization, as Judge Smith ably demonstrates in his separate opinion.

BERGER v. CITY OF SEATTLE 7749
Despite the broad First Amendment protection accorded

expressive activity in public parks, “certain restrictions on

speech in the public parks are valid. Specifically, a municipality may issue reasonable regulations governing the time, place

or manner of speech.” Grossman, 33 F.3d at 1205; see also

Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293

(1984). To pass constitutional muster, a time, place, or manner restriction must meet three criteria: (1) it must be contentneutral; (2) it must be “narrowly tailored to serve a significant

governmental interest”; and (3) it must “leave open ample

alternative channels for communication of the information.”

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)

(quoting Clark, 468 U.S. at 293).

With these overarching principles in mind, we turn to an

evaluation of each of the challenged rules.

III. Rules F.1 & F.2: The Permit & Badge

Requirements

A. Overview

Rule F.1 requires all “street performers” to obtain a permit

from the Director prior to performing on the Center’s

grounds. A “street performer” is “a member of the general

public who engages in any performing art or the playing of

any musical instrument, singing or vocalizing, with or without

musical accompaniment, and whose performance is not an

official part of an event sponsored by the Seattle Center or by

a Seattle Center licensee.”

4

 Rule C.15. Notably, a “street performer” need not be seeking payment from his audience to be

4Music and performance art are forms of expressive activity protected

by the First Amendment. See Ward, 491 U.S. at 790; Schad v. Borough

of Mount Ephraim, 452 U.S. 61, 65-66 (1981) (“Entertainment, as well as

political and ideological speech, is protected; motion pictures, programs

broadcast by radio and television, and live entertainment, such as musical

and dramatic works fall within the First Amendment guarantee.”) (collecting cases). 

7750 BERGER v. CITY OF SEATTLE
covered by the permit and other requirements, nor need he be

a repeat performer at the Seattle Center. Permits are issued

“upon [the] Director’s satisfaction that the information set

forth in the [performer’s] application is true, the applicant has

executed a statement stating that he or she will comply with

applicable law and all provisions of the Seattle Center rules,

and has paid the applicable application fee.” Rule F.1. The

permits are presumptively valid for one year, Rule F.2, and

allow permit-holders to perform “at designated locations on

the Seattle Center campus.” Rule C.16. Rule F.1 also mandates that “[p]ermits, when issued, shall be evidenced by a

badge that shall be worn or displayed by the performer in

plain view at all times during a performance.”

The permitting requirement outlined in Rule F.1 is noteworthy for what it does not cover. It places no limitation, for

example, on the number of street performer permits that the

Director may issue in a given year. Nor does the required permit assign particular performers to specific venues or performance times. Instead, “[p]erformance locations are available

on a first come first served basis” and “may not be ‘saved’ or

‘reserved.’ ” Rule F.4.

Rule F.2 sets forth the “terms and conditions” governing

the permits, including the grounds for their revocation.

Although the City represents that the Rules provide the Director with no discretion to deny a permit application, the language of Rule F.2 suggests otherwise. According to the Rule,

the Director may deny or condition a permit “as appropriate

to protect the health, safety and welfare of the public and/or

the campus; to protect property; to avoid or limit interference

with other uses or users of the campus; [and] to minimize disturbance of the surrounding neighborhood.” The Director may

also require the performer to obtain insurance, supply a security deposit, and/or post a bond. A permit may be revoked by

the Director “for convenience,” so long as the Director provides the performer with notice. 

BERGER v. CITY OF SEATTLE 7751
B. Constitutionality of Rules F.1 and F.2

1. Single-Speaker Registration Requirements

[1] A permitting requirement is a prior restraint on speech

and therefore bears a “ ‘heavy presumption’ ” against its constitutionality. See Forsyth County v. Nationalist Movement,

505 U.S. 123, 130 (1992) (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963)). As the Court explained in

Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150 (2002), 

[i]t is offensive — not only to the values protected

by the First Amendment, but to the very notion of a

free society — that in the context of everyday public

discourse a citizen must first inform the government

of her desire to speak to her neighbors and then

obtain a permit to do so. 

Id. at 165-66; see also id. at 166 (“Even if the issuance of permits by the mayor’s office is a ministerial task that is performed promptly and at no cost to the applicant, a law

requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional

tradition.”). 

The presumptive invalidity and offensiveness of advance

notice and permitting requirements stem from the significant

burden that they place on free speech. “Both the procedural

hurdle of filling out and submitting a written application, and

the temporal hurdle of waiting for the permit to be granted

may discourage potential speakers.” Grossman, 33 F.3d at

1206. Registration requirements also dissuade potential

speakers by eliminating the possibility of anonymous speech.

See Watchtower Bible, 536 U.S. at 166; see also McIntyre v.

Ohio Elections Comm’n, 514 U.S. 334, 341-42 (1995) (“[A

speaker’s] decision in favor of anonymity may be motivated

by fear of economic or official retaliation, by concern about

7752 BERGER v. CITY OF SEATTLE
social ostracism, or merely by a desire to preserve as much of

one’s privacy as possible.”). And, critically, advance notification requirements eliminate “spontaneous speech.” See

Watchtower Bible, 536 U.S. at 167; see also Grossman, 33

F.3d at 1206 (noting that “because of the delay caused by

complying with the permitting procedures, ‘[i]mmediate

speech can no longer respond to immediate issues.’ ”) (alteration in original) (quoting NAACP. v. City of Richmond, 743

F.2d 1346, 1355 (9th Cir. 1984)); see also Rosen v. Port of

Portland, 641 F.2d 1243, 1249 (9th Cir. 1981).

As a result of the significant burden that registration

requirements place on speakers, the Supreme Court has consistently struck down permitting systems that apply to individual speakers — as opposed to large groups — in the one

context in which they have been put in place with some regularity: solicitation of private homes. See Watchtower Bible,

536 U.S. at 166-67; Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 638-39 (1980) (striking down a solicitation permit requirement); Cantwell v. State of Conn., 310

U.S. 296, 301, 306-07 (1940) (striking down a license

requirement as applied to Jehovah’s Witnesses “going singly

from house to house” for the purpose of religious solicitation); Schneider v. State of N.J., 308 U.S. 147, 163-64 (1939)

(striking down a permitting scheme covering all forms of

solicitation). The Court has recognized that the government

interests asserted in these door-to-door solicitation cases —

the prevention of crime and fraud, and the protection of residential privacy — are weighty. See, e.g., Watchtower Bible,

536 U.S. at 164-65. Nonetheless, it has repeatedly concluded

that single-speaker permitting requirements are not a constitutionally valid means of advancing those interests because,

typically, (1) they sweep too broadly, see, e.g., Vill. of

Schaumburg, 444 U.S. at 636-37 (invalidating registration

requirement because, among other things, it applied to groups

engaged in legitimate activities as well as those who were

not); Watchtower Bible, 536 U.S. at 165-66 (same), (2) they

only marginally advance the government’s asserted interests,

BERGER v. CITY OF SEATTLE 7753
see, e.g., Watchtower Bible, 536 U.S. at 168-69 (noting that

a permitting requirement is “unlikely . . . [to] preclude criminals from knocking on doors and engaging in conversations

[with homeowners],” and that “[t]he annoyance caused by an

uninvited knock on the front door is the same whether or not

the visitor is armed with a permit”), and (3) the government’s

interests can be achieved by less intrusive means, see id. at

168-69 (noting that a homeowner’s privacy interests can be

adequately protected by “No Solicitation” signs); see also

Vill. of Schaumburg, 444 U.S. at 637 (asserting that

“[f]raudulent misrepresentations can be prohibited and the

penal laws used to punish such conduct directly.” (citing

Schneider, 308 U.S. at 164)).5

5Chief Judge Kozinski argues that this case and Watchtower Bible “have

about as much in common as bananas and boomerangs.” Kozinski Dissent

at 7814. The comparison is colorful, but the Chief Judge’s attempt to

brush aside Watchtower Bible does not work, for a myriad of reasons. 

First, and contrary to the Chief Judge’s contention, performance art, like

door-to-door canvassing, has historically served an important role in the

dissemination of ideas. See Gould Dissent at 7819 (“Speech in the form

of music, drama, or performance has played a vital role in our society and

deserves First Amendment protection. Some of our culture’s most valued

written works originated as spoken performances.”). Second, the Seattle

Center’s permitting requirement, like the permitting requirement in

Watchtower Bible, significantly inhibits spontaneous speech. This critical

point, which the Chief Judge ignores, was an important aspect of the

Supreme Court’s holding in Watchtower Bible. Third, there is no reason

to believe that street performers are less interested in maintaining their

anonymity from the government than door-to-door canvassers or other

purveyors of potentially unpopular ideas. See Watchtower Bible, 536 U.S.

at 166 (“The fact that circulators revealed their physical identities did not

foreclose our consideration of the circulators’ interest in maintaining their

anonymity [in Buckley v. American Constitutional Law Foundation, Inc.,

525 U.S. 182 (1999)]. In the Village, strangers to the resident certainly

maintain their anonymity, and the ordinance may preclude such persons

from canvassing for unpopular causes.”). Fourth, as noted, the ordinance

applies whether or not the street performer solicits funds, and the definition of “street performer” includes individuals who do not solicit funds.

Finally, like the permit regulation in Watchtower Bible, the permitting

requirement in this case applies to individuals who communicate their

message to groups as small as two or three others. In short, the principles

set forth by the Supreme Court in Watchtower Bible apply with as much

force in this context as they did in the context of door-to-door canvassers.

7754 BERGER v. CITY OF SEATTLE
[2] Although the Supreme Court has not addressed the

validity of single-speaker permitting requirements for speech

in a public forum, it stands to reason that such requirements

would be at least as constitutionally suspect when applied to

speech in a public park, where a speaker’s First Amendment

protections reach their zenith, than when applied to speech on

a citizen’s doorstep, where substantial privacy interests exist.

See Frisby v. Schultz, 487 U.S. 474, 483-84 (1988). It is therefore not surprising that we and almost every other circuit to

have considered the issue have refused to uphold registration

requirements that apply to individual speakers or small groups

in a public forum. See Santa Monica Food Not Bombs v. City

of Santa Monica, 450 F.3d 1022, 1039 (9th Cir. 2006) (“As

the cautionary language in our earlier opinions indicates, the

significant governmental interest justifying the unusual step

of requiring citizens to inform the government in advance of

expressive activity has always been understood to arise only

when large groups of people travel together on streets and

sidewalks.”); see also Grossman, 33 F.3d at 1206 (holding

that the possibility that the ordinance at issue could reach “the

actions of single protestors” rendered it unconstitutional);

Rosen, 641 F.2d at 1247-48 (invalidating a one-day advance

registration requirement because it applied to individuals and

therefore “regulate[d] far more than mass conduct that necessarily interferes with the use of public facilities”); Cox v. City

of Charleston, 416 F.3d 281, 285 (4th Cir. 2005)

(“[U]nflinching application” of a permitting requirement “to

groups as small as two or three renders it constitutionally

infirm.”); Douglas v. Brownell, 88 F.3d 1511, 1524 (8th Cir.

1996) (“[A]pplying the permit requirement to groups as small

as ten persons compounds our conclusion that the parade permit ordinance is not narrowly tailored [to advance the government’s interest in protecting the safety and convenience of

users of public sidewalks and streets.]”); American-Arab AntiDiscrimination Committee v. City of Dearborn, 418 F.3d 600,

608 (6th Cir. 2005) (striking down a permit requirement as

“hopelessly overbroad” on the ground that the requirement

BERGER v. CITY OF SEATTLE 7755
could conceivably apply to groups as small as “two or more

persons”).6

[3] In this case, the Center’s permitting requirement applies

to individual speakers who wish to express themselves in a

public forum.7 The requirement is not limited to only those

performers who seek to attract (or who do, in fact, attract) a

crowd of a sufficiently large size.8 As noted, neither we, the

6The Second Circuit recently upheld a single-speaker permitting

requirement in Hobbs v. County of Westchester, 397 F.3d 133, 150 (2d

Cir. 2005). But the regulation in Hobbs, as interpreted by the Second Circuit, required individuals who planned to perform on public property to

obtain a permit only if they planned to use “props and/or equipment,” so

the permit requirement was triggered by conduct, not speech. Id. at 151.

Also, the court did not directly consider the constitutionality of the permitting requirement. Rather, it evaluated the constitutionality of an Executive

Order which prohibited the issuance of permits to individuals who had

been previously convicted of a sex offense against a minor, and whose

planned performance was designed to attract children. Id. at 152. In that

narrow context, the court upheld the prohibition as a valid time, place, and

manner restriction. 

7Although street performers do, of course, hope to draw crowds, this

goal is of little moment to our analysis. The individual protestors in Rosen

and Grossman also undoubtedly hoped to attract crowds of people eager

to learn their views. But we have emphasized that advance registration

permits are only appropriate for larger crowds than any street performer

at the Seattle Center is likely to draw at one time. See Long Beach Area

Peace Network v. City of Long Beach, 522 F.3d 1010, 1033 (9th Cir.

2008) (“Although it is a close question, we hold that a group of seventyfive people using a public open space in Long Beach is large enough to

warrant an advance notice and permitting requirement.”). As we note later,

see infra pp. 7764-65, an otherwise valid, general permit requirement

applicable to large groups could be applied to street performers, but only

if the crowd attracted is in fact large enough to reach the minimum crowd

size covered by that valid requirement. 

8

In his dissent, Chief Judge Kozinski concedes that “individual-toindividual and small group-to-small group interactions generally do not

pose the sort of problems that time, place and manner rules are designed

to deal with.” Kozinski Dissent at 7814. The Seattle Center’s permitting

requirement implicates just such interactions. Under the current rules,

Michael Berger must obtain a permit whether he wishes to perform his

7756 BERGER v. CITY OF SEATTLE
Supreme Court, nor most other circuit courts have ever upheld

such a requirement. In addition, the interests the City asserts

here — reducing territorial and other disputes involving street

performers, and coordinating uses at a public park — are no

more, and perhaps less, substantial than those cited by the

local governments in the door-to-door solicitation cases. See,

e.g., Watchtower Bible, 536 U.S. at 164-65 (the government’s

asserted interests included the prevention of crime and fraud

and the protection of residential privacy). 

In addition, as discussed in more detail below, the Center’s

permitting requirements have an impermissibly broad scope;

do not meaningfully promote the City’s asserted interests; and

address interests that could be achieved through means far

less intrusive than an individual speaker registration requirement. These considerations indicate that the regulation is not

sufficiently narrowly tailored to meet the standard for a valid

time, place, and manner regulation.

2. Narrow Tailoring 

A narrowly tailored time, place, or manner restriction on

speech is one that does not “burden substantially more speech

than is necessary” to achieve a substantial government interest. Ward, 491 U.S. at 799. It must “target[ ] and eliminate[ ]

no more than the exact source of the ‘evil’ it seeks to remedy.” See Frisby, 487 U.S. at 485 (citation omitted). Moreover,

although the chosen restriction “need not be the least restrictive or least intrusive means” available to achieve the government’s legitimate interests, Ward, 491 U.S. at 798, the

existence of obvious, less burdensome alternatives is “a relemagic act for groups of two or three others or for groups of one hundred

or more. And nothing in the record indicates that crowds — even crowds

of fifty or seventy-five people — gather around street performers at the

Seattle Center. In other words, the Seattle Center’s permitting requirement

impinges on the very individual-to-small group interactions that even the

Chief Judge acknowledges are not problematic. 

BERGER v. CITY OF SEATTLE 7757
vant consideration in determining whether the ‘fit’ between

ends and means is reasonable,” City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417 n.13 (1993); see also

Santa Monica Food Not Bombs, 450 F.3d at 1041.

The Center’s permitting requirement fails the narrow tailoring test for three reasons. First, the requirement only marginally, if at all, promotes the City’s asserted interests,

suggesting that the government’s interests would not “be

achieved less effectively absent the regulation.” See Ward,

491 U.S. at 799 (internal quotation marks and citations omitted). Second, less intrusive measures exist by which the City

could achieve its alleged goals. Finally, the Center’s permitting rule applies, on its face, to an extraordinarily broad group

of individuals, the vast majority of whom are not responsible

for the “evil” the City seeks to remedy. See Frisby, 487 U.S.

at 485. 

1. The City asserts that the permitting requirement promotes its interest in protecting the safety and convenience of

park-goers by reducing territorial disputes among performers,

deterring harassment of audience members, and “clarifying

and coordinating potentially competing uses.” A “State’s

interest in protecting the ‘safety and convenience’ of persons

using a public forum” is assuredly “a valid government objective.” Heffron v. Int’l Soc’y of Krishna Consciousness, Inc.,

452 U.S. 640, 650 (1981); see also Thomas v. Chic.Park

Dist., 534 U.S. 316, 323 (2002) (“Regulations of the use of a

public forum that ensure the safety and convenience of the

people are not inconsistent with civil liberties . . . .” (internal

quotation marks and citation omitted)); Cox v. State of New

Hampshire, 312 U.S. 569, 574 (1941). We have also held that,

under appropriate circumstances, a permitting requirement

governing the use of a public open space can further a legitimate interest in the regulation of competing uses of that

space. See Santa Monica Food Not Bombs, 450 F.3d at 1042-

43; Long Beach Area Peace Network, 522 F.3d at 1032-33. 

7758 BERGER v. CITY OF SEATTLE
[4] The City’s asserted reasons for enacting the permitting

regulations are thus substantial governmental interests. Unlike

the restrictions in the cases just cited, however, the Center’s

permitting requirements do not promote those interests in any

significant way. 

There is, for example, no reason two street performers with

permits would be less likely to engage in a territorial dispute

than two street performers without permits. After all, under

the Rules, a permit does not entitle a performer either to a particular territory or to a particular time period within a given

territory. While the delineation of performance areas may

help reduce such disputes, a permitting requirement is not

inherent in such a space allocation system.

The Center’s permitting requirement also bears no apparent

connection to the City’s stated interest in reducing hostile performer behavior. The City represents that the permits are

freely issued, and that there is little, if any, screening process.9

If so, then there is no reason why a performer with a permit

is likely to be less hostile than one without a permit. In fact,

several of the incident reports that the City introduced as evi9Although the City stated at oral argument that issuance of the permits

is non-discretionary, we note that Rule F.2, which lists the “terms and conditions” for obtaining and retaining a permit, indicates otherwise. For

example, Rule F.2 vests the Director with the power to revoke a permit

“for convenience,” thereby seeming to provide the Director with some

measure of discretion over which performers are entitled to perform at the

Center. 

Rules that grant licensing officials undue discretion are not constitutional. See Forsyth County, 505 U.S. at 131 (“[A] law subjecting the exercise of First Amendment freedoms to the prior restraint of a license must

contain narrow, objective, and definite standards to guide the licensing

authority.” (internal quotation marks and citations omitted)); Thomas, 534

U.S. at 323. Berger does not challenge the permitting requirement on

undue discretion grounds, however. We therefore assume, without deciding, that Rule F.2 does not provide the Director with undue discretion over

the permitting system. 

BERGER v. CITY OF SEATTLE 7759
dence of obstreperous performer conduct describe events that

occurred after the introduction of the permitting requirement.

Moreover, the permitting requirement, as currently

designed, does not aid in coordinating multiple uses of the

Center’s grounds. As already noted, the Rules place no limit

on the number of permits that may be issued and do not assign

particular performers to specific times or locations. As a

result, the Center has no idea when or where a street performer intends to perform over the course of a permit year or

how long any given performance will last. Because the permitting requirement does not resolve such uncertainties, it

cannot help the Center “clarify[ ] and coordinat[e] potentially

competing uses” of the park.

We recognize that limiting street performers to designated

locations does, by definition, improve the coordination of

multiple uses of the Center. But again, the permitting requirement does not assign particular performers to one or more of

these designated locations, and therefore adds nothing to the

Center’s coordination scheme. 

The Chief Judge implies that our opinion is in conflict with

cases such as Cox v. New Hampshire, 312 U.S. 569 (1941)

and Poulos v. New Hampshire, 345 U.S. 395 (1953) with

regard to narrow tailoring to advance a significant governmental interest. Kozinski Dissent at 7808-09. That is simply

not the case. In contrast to the Seattle Center’s permitting

requirement, the permitting schemes at issue in Cox and

Poulos both required applicants to “specify the day and hour”

that they planned to hold their parade or public meeting. See

Cox, 312 U.S. at 571 & n.1; Poulos, 345 U.S. at 398 n.2. So

the permits in Cox and Poulos did serve to further the government’s interest in coordinating multiple uses of limited public

space. The same cannot be said of the Seattle Center’s permitting requirement, which is untethered to the time, place,

length, or size of a planned performance.10 In addition, both

10Chief Judge Kozinski describes our effort to distinguish Cox and

Poulos on this ground as “clumsy.” Kozinski Dissent at 7805. In the Chief

7760 BERGER v. CITY OF SEATTLE
cases preceded the development by the Supreme Court of specific time, place and manner standards, and so, although still

good law, are not examples of the application of modern doctrine to discrete circumstances.

Finally, the imperfect fit between the City’s stated goals

and the permit and badge requirements is evidenced by the

Rules’ significant underinclusiveness. Under the Rules, a

group of as many as 99 people can gather without a permit to

express their views, so long as they are not engaged in an

artistic performance.11 At the same time, an individual singing

or dancing for a few friends would be required to register with

the Director. This discrepancy makes little sense if, in fact,

the City’s primary motivation in passing the permit and badge

requirements is to protect the safety and convenience of parkgoers. 

Judge’s opinion, the fact that the City’s permitting requirement allows the

performer to “perform any time he wishes . . . for as long as he wishes”

indicates that it is a less restrictive restraint on speech than those in Cox

and Poulos. 

The Chief Judge’s argument misses our crucial point: it is the very fact

that the permitting schemes in Cox and Poulos required applicants to specify the day and hour of their gathering that ensured that the restraints at

issue did, in fact, promote the government’s legitimate interest in coordinating multiple uses of a public space. In other words, the permitting

requirement in Cox and Poulos accomplished more than the mere identification of potential speakers. 

In this case, the City simply cannot argue that its permitting requirement

promotes any possible coordination of use purpose. The only purpose that

the City’s permitting requirement serves is to force potential speakers to

identify themselves to the government. Standing alone, such an interest is

decidedly not constitutional, see Watchtower Bible, 536 U.S. at 166, and

the Supreme Court has never held otherwise. 

11The Rules also require individuals or groups to obtain a license if they

use electrical power outlets, tables, temporary stages, flammable liquids,

or sound amplification equipment. Rule E. This aspect of the Rules has not

been challenged. 

BERGER v. CITY OF SEATTLE 7761
2. The City, the Chief Judge, and Judge Smith all maintain

that the permitting requirement nonetheless promotes the

City’s asserted interests simply because a performer’s fear of

losing his or her permit will deter that performer from engaging in aggressive conduct and other non-rule abiding behavior. See Kozinski Dissent at 7810; Smith Op. at 7839. Along

these same lines, the City contends that, without the ability to

revoke a performer’s permit, it would have no means of punishing violations of the Rules. These criticisms disregard the

bedrock First Amendment presumption against prior speech

restraints, and therefore against substituting an advance permitting process for after-the-fact enforcement. And, even if

the permitting requirement does deter and help to punish

unwanted behavior, “there are easily available alternative

modes of regulation,” Santa Monica Food Not Bombs, 450

F.3d at 1041, that would have considerably less impact on

speech than the single-speaker prospective registration system. 

Rather than requiring all speakers to pre-register with the

government as a prerequisite to engaging in communicative

activity, the City could simply enforce its existing rules

against those who actually exhibit unwanted behavior.12 For

example, after appropriate hearings, the City might be able to

suspend a rulebreaker’s right to perform on the Center’s

grounds, or issue a fine.13 Cf. Madsen v. Women’s Health Ctr.,

12See Rule F.7.a (prohibiting performers from “treat[ing] any person or

animal in a manner that is aggressive, menacing, vulgar, profane or abusive”). 

13According to one city official, “Before a street performer’s permit is

suspended, Seattle Center: 1) gathers information about the alleged rule

violation(s); 2) sends the street performer notice of the alleged violation(s)

and gives the performer the opportunity to respond; and 3) makes a decision based upon the alleged incident and the performer’s response, if any.”

The City does not explain why this system would not function just as well

if the penalty was the suspension of the performer’s future right to perform

at the Center, rather than the suspension of his permit. 

7762 BERGER v. CITY OF SEATTLE
Inc., 512 U.S. 753, 776 (1994).14 There is little reason to suspect that a performer would fear a suspension of her right to

perform on the grounds or a significant fine any less than she

would fear a suspension of her permit. The Supreme Court

has consistently struck down prior restraints on speech where

a state could achieve its purported goal of protecting its citizens from wrongful conduct by punishing only actual wrongdoers, rather than screening potential speakers. See Riley v.

Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 795

(1988) (invalidating a restraint on charitable solicitation that

purported to protect citizens from fraud and noting, “In striking down this portion of the Act, we do not suggest that States

must sit idly by and allow their citizens to be defrauded.

North Carolina has an antifraud law, and we presume that law

enforcement officers are ready and able to enforce it.”); Vill.

of Schaumburg, 444 U.S. at 637 (“Fraudulent misrepresentations can be prohibited and the penal laws used to punish such

conduct directly.”); Schneider, 308 U.S. at 162 (striking down

ban on pamphleteering that was aimed at the prevention of littering in part because “[t]here are obvious methods of preventing littering. Amongst these is the punishment of those

who actually throw papers on the streets.”).

14The City states that, absent the ability to suspend a performer’s

license, it would have no other option but to completely ban a non-ruleabiding performer from the Center’s grounds. This argument is unpersuasive, for two reasons. First, there is no reason why identifying a performer

who has had his privilege to perform on the Center’s grounds suspended

would be more difficult than identifying a performer who has had his permit suspended. Both would require an enforcement officer to consult a

database which contained identifying information. The essence of the

inquiry is no different. 

Second, as a practical matter, the City does not appear to have had trouble identifying the limited number of street performers who regularly

appear at the Center. The Appellee, “Magic Mike,” is apparently quite

well-known to the Center’s security staff. In addition, its incident reports

contain references to such distinctive characters as the hula-hooping magician and “the puppet guy.” 

BERGER v. CITY OF SEATTLE 7763
In a related argument, Chief Judge Kozinski avers that the

City’s registration requirement promotes the City’s interest in

identifying rulebreakers and notifying them of alleged violations. See Kozinski Dissent at 7809-10 (stating that the permitting requirement serves the valid purpose of deterring

unruly street performer behavior “by denying them the cover

of anonymity, and [giving] the Seattle Center authorities a

means of holding them accountable when they do misbehave”). This argument is unavailing, for three reasons. First,

the requirement that potential speakers identify themselves to

the government, and the concomitant loss of anonymity, is

one of the primary evils the Supreme Court cited when it

struck down the permitting requirement in Watchtower Bible.

See 536 U.S. at 166-67. The Center’s permitting requirement

does not require only non-rule abiding street performers to

identify themselves to the government. It requires all performers to “first inform the government of [their] desire to

speak” in a public forum, see Watchtower, 536 U.S. at 165-

66, and thereby forego their anonymity. The permitting rule’s

denial of anonymity to potential street performers, and the

deterrent effect that such a denial has on some individuals’

exercise of speech rights, weighs against the rule’s constitutionality, not in its favor. See Watchtower, 536 U.S. at 166-67

& n.14.

Second, the City need not rely on a pre-registration scheme

to determine the identity and addresses of problematic street

performers. Seattle Center employees can, instead, ask the

offending street performer to identify himself and provide an

address, if necessary. This method is presumably the one

employed by Seattle police officers when they enforce criminal statutes that prohibit such acts as disorderly conduct, see

Seattle Mun. Code § 12A.12.010, and aggressive begging. See

Seattle Mun. Code § 12A.12.015. Moreover, the Supreme

Court has recently upheld so-called “stop and identify” statutes that require suspects to identify themselves to police officers. See Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S.

177 (2004). In other words, the City has the authority to ask

7764 BERGER v. CITY OF SEATTLE
alleged rule violators to provide their identities. The registration system is therefore of only minimal additional usefulness,

if any.

Third, as noted supra n. 14, the City does not appear to

have had any practical difficulties uncovering the identities of

the limited number of street performers who appear regularly

at the Seattle Center. 

The City’s asserted interest in coordinating multiple uses of

the Center could also be achieved as effectively without the

permitting requirement. Although we do not uphold the Center’s designation of sixteen performance locations on the present record, see infra Part IV, we also hold that the delineation

of performance areas, particularly in the most sought-after

locales, might pass constitutional muster on a more developed

record. If so, a valid designated-location plan, in combination

with the City’s existing first-come-first-served rule, would

achieve the same improvements in the coordination of multiple uses without a permitting system as it would with one.

Conversely, if the designation of performance locations is not

constitutionally valid, then the permitting scheme cannot be

justified as enhancing the enforcement of an invalid designation.

[5] In short, by relying on an expansive, prophylactic prior

restraint, the City has “burden[ed] substantially more speech

than is necessary to further [its] interests.” Ward, 491 U.S. at

799. The permitting system is entirely peripheral to the Center’s need to enforce its Rules. Because the City’s interests in

punishing wrongful conduct could “be achieved [just as] . . .

effectively absent the [permitting] regulation,” id., that regulation is not narrowly tailored to promote those interests. See

also Discovery Network, 507 U.S. at 417 n.13 (holding that

the availability of less restrictive alternatives is a relevant

consideration in a narrow tailoring analysis).

[6] 3. There is a third, particularly compelling reason why

the Center’s permitting requirement fails the narrow tailoring

BERGER v. CITY OF SEATTLE 7765
requirement: It applies to a large number of individuals who

have no connection to the City’s asserted reasons for the permitting requirement, thereby running afoul of the principle

that the “[g]overnment may not regulate expression in such a

manner that a substantial portion of the burden on speech does

not serve to advance its goals.” Ward, 491 U.S. at 799.

The permitting requirement is, according to the City,

designed in part to reduce obstreperous conduct by street performers. Yet, by the City’s own account, most street performers are not problematic.15 So the permitting requirement

burdens all performers to root out the occasional bad apple.

By doing so, it fails to “target[ ] and eliminate[ ] no more than

the exact source of the ‘evil’ it seeks to remedy.” Frisby, 487

U.S. at 485.

Similarly, the permitting requirement applies to street performers who pose no realistic coordination or traffic flow

concerns, as well as to those who might. It is hard to fathom

how an individual performing for two or three others in a park

as large as the Center would pose coordination or traffic flow

problems for the City. See Santa Monica Food Not Bombs,

450 F.3d at 1038-39 (noting that the type of coordination

problems that justify the imposition of advance notification

and permitting requirements arise in a public forum only

when large groups are involved); Grossman, 33 F.3d at 1206

(same); Long Beach Area Peace Network, 522 F.3d at 1032-

33 (same); City of Dearborn, 418 F.3d at 608 (“The city of

Dearborn’s significant interest in crowd and traffic control,

property maintenance, and protection of the public welfare is

not advanced by the application of the Ordinance to small

groups.”). The City has not provided any evidence that street

performers usually, or even sometimes, gather crowds of the

size that might justify coordination-of-use permits — accord15The City reports that, in the year prior to the introduction of the

revised Rules, 70% of the performer-related complaints it received were

either generated by or were in reference to “Magic Mike” Berger. 

7766 BERGER v. CITY OF SEATTLE
ing to Long Beach Area Peace Network, 522 F.3d at 1033,

seventy-five or more people. Once again, the permitting

requirement here burdens substantially more speech than necessary to promote a legitimate government objective.

[7] The unconstitutional breadth of the permitting requirement is perhaps most apparent in the City’s definition of

“street performer,” the group to whom the permitting rules

apply. According to Rule C.15, a “Street Performer” is “a

member of the general public who engages in any performing

art or the playing of any musical instrument, singing or vocalizing, with or without musical accompaniment . . . .” This definition is extraordinary in its sweep.16 It includes not only the

few problematic street performers who perform repeatedly

and for pay, but also any individual who wishes to sing,

dance, or play an instrument while on the Center’s grounds.

Protest songs, playing the guitar at a picnic, even whistling

are swept up into this broad definition. An individual strumming on a guitar at a family picnic surely poses no problem

to the safety and convenience of fellow park-goers. Yet, that

person, like many others, would need to obtain a permit. 

The City urges us to read the definition more narrowly than

its text would suggest. It contends that the Rules apply only

to those performances that are “aimed at attracting an audience,” and so are not unconstitutionally broad. 

It is a “well-established principle that statutes will be interpreted to avoid constitutional difficulties.” Frisby, 487 U.S. at

483. Thus, where an unconstitutionally broad statute is “readily subject to a narrowing construction” that would eliminate

its constitutional deficiencies, we accept that construction. See

id. at 482; see also Ctr. for Bio-Ethical Reform, Inc., v. L.A.

16Although inclusion of the term “vocalizing” could be read to apply the

permitting requirement to any individual who wished to speak out loud

while traversing the Seattle Center’s grounds, we assume that the permitting rules apply only to those engaged in artistic expression. 

BERGER v. CITY OF SEATTLE 7767
County Sheriff’s Dep’t, 533 F.3d 780, 791-93 (9th Cir. 2008)

(construing an ambiguous statute narrowly to avoid First

Amendment problems). 

In this case, though, even if we were to hold that the published “street performer” definition is “readily subject” to the

proposed narrowing construction, the revised definition would

be no less constitutionally infirm, for two reasons. First, most

performers seek to “attract a crowd,” even if that crowd turns

out to be composed of only two or three people. The City’s

“narrower” rule is therefore only marginally less broad, if less

broad at all, than the original. 

In Santa Monica Food Not Bombs, we invalidated a rule

that required any individual who advertised an event on the

radio or television to obtain a permit, regardless of the number of people who attended the event. See 450 F.3d at 1043.

We noted that the permit would have been narrowly tailored

if it had applied to events that actually attracted a crowd of

more than 150 people, even if the number of attendees was

unknown before the event. Id. In other words, the City of

Santa Monica was allowed to hold an organizer responsible

for obtaining a permit if the event actually attracted a significant crowd, but not because the event might conceivably

attract such a crowd. Similarly, here, the City could draft a

rule for the Seattle Center that requires performances that

attract an audience of a given size to obtain a permit, and

enforce that rule for performances that actually attract that

size audience. What it cannot do is require permits for all performances at the Center, regardless of the size of the crowd.17

17In support of their argument that the Center’s permitting requirement

is constitutional, Chief Judge Kozinski and Judge Gould cite Thomas v.

Chicago Park Dist., 534 U.S. 316 (2002) for the proposition that the

Supreme Court has previously “[upheld a] permitting requirement for

large events in public parks.” Gould Dissent at 7821; Kozinski Dissent at

7804-05, 7809. As noted, regulating “street performers” is not tantamount

to regulating “large events.” More importantly, as we have twice noted,

7768 BERGER v. CITY OF SEATTLE
Second, the City’s proposed limitation would make an otherwise clear, though overbroad, regulation unconstitutionally

vague. See Foti v. City of Menlo Park, 146 F.3d 629, 638-40

(9th Cir. 1998). Foti invalidated a city ordinance that prohibited drivers from displaying signs on their parked vehicles if,

and only if, those signs were designed to “attract the attention

of the public.” Id. at 638. We found this standard unconstitutionally vague, because it required those enforcing the ban to

“decipher the driver’s subjective intent” based on such factors

as the driver’s chosen parking space, the amount of traffic

passing by the chosen parking spot, and the physical characteristics of the sign. Id. at 638-39. Our concern was that,

“[w]ith this range of factors to consider, . . . a police officer

might resort to enforcing the ordinance only against . . .

[those] messages the officer or the public dislikes.” Id. at 639.

The City’s limiting construction mimics the language of the

ordinance declared unconstitutionally vague in Foti and so

fares no better than that ordinance. A Seattle police officer

attempting to enforce the Center’s permitting requirement

would have to decide whether a performer intended “to attract

a crowd.” The officer would presumably make such a determination based on factors such as the performer’s chosen

location, volume, flamboyance, and, worst of all, subject matter. As in Foti, this myriad of factors lends itself to discriminatory enforcement.

“Thomas considered only a challenge to the breadth of official discretion,

not the other requirements of the time, place, and manner jurisprudence.”

Santa Monica Food Not Bombs, 450 F.3d at 1037 n.15 (citing Galvin v.

Hay, 374 F.3d 739, 747 n.5 (9th Cir. 2004) (internal alterations and quotations omitted)). Notably, the Thomas Court did not consider, because the

issue was not raised, whether the Chicago Park District’s fifty-person

threshold was high enough to meet constitutional standards. Our caselaw

indicates that it may be too low. See Long Beach Area Peace Network,

522 F.3d at 1033; Santa Monica Food Not Bombs, 450 F.3d at 1043. In

any event, because Thomas addressed a specific type challenge that is not

raised here, it is not useful in evaluating the constitutionality of the Center’s permitting requirement. 

BERGER v. CITY OF SEATTLE 7769
Moreover, a prospective performer would need to anticipate how an officer might interpret the performance. Even if

the performer had no intent to “attract an audience,” he or she

would have to evaluate whether an officer might think so.

This uncertainty is likely to have a chilling effect on speech.

See id. at 638 (“A statute must be sufficiently clear so as to

allow persons of ‘ordinary intelligence a reasonable opportunity to know what is prohibited.’ ”) (quoting Grayned v. City

of Rockford, 408 U.S. 104, 108 (1972))).

In short, far from saving Rule C.15 and its associated Rules

from constitutional ignominy, the City’s proffered limiting

construction makes matters worse.

3. Conclusion

[8] Overall, like the invalid permitting scheme in Grossman, the City’s regulations, “[r]ather than being narrowly tailored to protect speech, . . . [are] tailored so as to preclude

speech.” Grossman, 33 F.3d at 1207. We therefore hold that

Rules F.1 and F.2 are unconstitutional.18 As currently drafted,

the Center’s permitting requirement does not meaningfully

advance the City’s asserted interests. Instead, it requires single individuals to inform the government of their intent to

engage in expressive activity in a public forum, a requirement

that neither we nor the Supreme Court has ever countenanced.

In addition, its broad sweep prohibits much more speech than

the “evil[s]” it seeks to remedy require, and the main objectives of the City’s advance registration scheme could be

achieved by far less intrusive means. For all these reasons, the

18The Seattle Center’s badge requirement is intimately connected to the

permitting requirement. See Rule F.1 (“Permits, when issued, shall be evidenced by a badge that shall be worn or displayed by the performer in

plain view at all times during a performance.”). Because we hold the Center’s permitting requirement unconstitutional and because no badges of the

kind required can be issued without permits, we need not separately evaluate the constitutionality of the badge requirement. 

7770 BERGER v. CITY OF SEATTLE
Center’s permitting requirement is not a reasonable time,

place, or manner restriction.

IV. Rule F.5: The Performance Location Rule

A. Overview of the Rule

Rule F.5 limits street performers to sixteen “designated

locations on the Seattle Center grounds,” identified on a map

that accompanies each Street Performer Permit. The map also

indicates the “maximum number” of performers, typically no

more than two, who may perform at each location simultaneously. If the Director determines that a given performance

interferes with other users of the Center’s grounds or “aggravates foot traffic congestion,” the Rule permits the Director to

“relocate performers” to other designated areas.

B. Constitutionality of Rule F.5

The summary judgment record is insufficient to establish

that the performance location rule is unconstitutional. As with

other time, place, or manner restrictions on speech in a public

forum, the government bears the burden of justifying a location restriction. See Kuba v. 1-A Agric. Ass’n, 387 F.3d 850,

858-63 (9th Cir. 2004); see also United States v. Playboy

Entm’t Group, 529 U.S. 803, 816-17 (2000); City of Renton

v. Playtime Theatres, Inc., 475 U.S. 41, 50-52 (1986). Viewing the available evidence in a light most favorable to the

City, see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986), we conclude that a genuine

issue of material fact exists as to whether the City met this

burden, and that summary judgment for Berger was therefore

not merited. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 250 (1986).

The City submitted evidence, which Berger does not dispute, that, before the introduction of the location restriction,

it received weekly complaints from park tenants about street

BERGER v. CITY OF SEATTLE 7771
performers blocking entranceways and egresses. The City’s

evidence also indicates that street performers regularly

engaged in disruptive and volatile territorial disputes. Viewing this uncontested evidence in a light most favorable to the

City, we conclude that the City met its burden of establishing

that a significant problem exists. See Edenfield v. Fane, 507

U.S. 761, 770-71 (1993) (“[A] governmental body seeking to

sustain a restriction . . . must demonstrate that the harms it

recites are real . . . .”).

Moreover, unlike the Center’s permitting requirement, the

location rule does promote the City’s interest in reducing

these problems. By delineating precise performance locations,

the City can assure itself and park tenants that street performers are not blocking entrances, exits, and pathways. Similarly,

well-defined performance areas, combined with the Center’s

first-come, first-served rule, reduce territorial disputes by

eliminating uncertainty over the permissible boundaries of a

given performance.

In addition, the performance location rule, unlike the permitting requirement, passive solicitation, and captive audience

rules, is not overbroad on its face. See Bd. of Airport Comm’rs

of the City of L.A. v. Jews for Jesus, Inc., 482 U.S. 569, 574-

75 (1987) (striking down, on overbreadth grounds, a regulation that prohibited individuals from engaging in “any First

Amendment activities” within an airport terminal).19

[9] The only issue, then, is whether the location restriction

leaves open “ample alternative channels for communication.”

Ward, 491 U.S. at 791. As we explained in Long Beach Area

Peace Network, “an alternative is not ample if the speaker is

19The performance location rule is overbroad in the sense that it relies

on a constitutionally infirm definition of “street performer.” See supra Part

III.B.2. If the City plans to defend the constitutionality of the performance

location rule on remand, it must also provide a narrowing construction that

comports with the principles discussed in Part III.B.2. 

7772 BERGER v. CITY OF SEATTLE
not permitted to reach the intended audience.” 522 F.3d at

1024.

On summary judgment, we are, of course, required to draw

all reasonable inferences in favor of the non-moving party.

See Anderson, 477 U.S. at 255. In support of its argument that

the sixteen designated locations provide adequate access to

audiences, the City provides a single piece of evidence: a map

of the Seattle Center that includes the chosen locations.20 As

the dissenters point out, the map shows that the designated

performance areas are near to several key Seattle Center

attractions, including the Space Needle, the Key Arena, and

the Experience Music Project. Many of the locations also

appear to be directly adjacent to the Center’s major pedestrian

thoroughfares. The map therefore permits us to draw the reasonable inference that the chosen locations provide street performers with access to most park-goers and therefore to their

intended audience. 

Berger challenges this inference, and in support of that

challenge, introduces his own declaration. In that declaration,

he asserts that “many [of the locations] are far off the walkways where it is very difficult to notice the performer.” He

also avers that “Other times the Center has trucks or equipment or construction blocking locations for weeks on end.”

Although these statements raise an inference that the chosen

locations do not provide adequate access to a street performer’s audience, they do not compel that conclusion as a matter

of law. Nor does Berger supply additional evidence that

would preclude us from drawing an inference in favor of the

City.

20The City asserts that the number and location of the performance areas

were determined through a public process in which street performers participated. The City has yet, however, to introduce any of the details or specific results of this public process. Inquiry into such details would go a

long way towards determining the adequacy of the chosen locales. 

BERGER v. CITY OF SEATTLE 7773
[10] Because we must draw all reasonable inferences in

favor of the City, and because there is conflicting evidence

concerning whether the sixteen dedicated locations provide

adequate access to the intended audience, summary judgment

for Berger on the issue of Rule F.5’s constitutionality is not

appropriate on the current record.

To be clear, we do not hold that Rule F.5 is constitutional.

Berger’s evidence, though sparing, is sufficient to support a

reasonable inference that the designated locations do not provide access to his intended audience. Rather, we are simply

ruling that, on the current summary judgment record, there are

conflicting inferences to be drawn regarding material facts

pertinent to the dispositive consideration, adequacy of access

to the intended audience.

V. Rule F.3.a: The Passive Solicitation Rule

A. Overview of Rule

Rule F.3.a states: “No performer shall actively solicit donations, for example by live or recorded word of mouth, gesture,

mechanical devices, or second parties.” The Rule does allow

performers “passively” to solicit donations by setting out a

receptacle that “may include a written sign that informs the

public that such donations are sought.”

B. Constitutionality of Rule F.3.a

Speech that solicits funds is protected by the First Amendment. See Vill. of Schaumburg, 444 U.S. at 628-32; Int’l Soc’y

for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 677

(1992). Rules that regulate solicitation in public fora are

therefore subject to the same standards as those that limit

other forms of speech. See Lee, 505 U.S. at 703-04 (Kennedy,

J., concurring); see also ACLU of Nev. v. City of Las Vegas

(ACLU II), 466 F.3d 784, 792 (9th Cir. 2006); ACORN v. City

of Phoenix, 798 F.2d 1260, 1267 (9th Cir. 1986). In other

7774 BERGER v. CITY OF SEATTLE
words, solicitation regulations must be content-neutral, narrowly tailored, and leave open reasonable alternative channels

for expression. Id. If a regulation is not content-neutral, we

apply strict scrutiny. See Playboy Entertainment Group, 529

U.S. at 813; Perry Educ. Ass’n, 460 U.S. at 45. Under that

standard, the regulation is valid only if it is the least restrictive

means available to further a compelling government interest.

Id. We hold that the Center’s active solicitation ban is a

content-based regulation, and that it does not satisfy the exacting standard for a valid content-based regulation. 

1. Content-based

A regulation is content-based if either the underlying purpose of the regulation is to suppress particular ideas, see

Ward, 491 U.S. at 791, or if the regulation, by its very terms,

singles out particular content for differential treatment. See

Turner Broad. Sys. ,Inc. v. FCC, 512 U.S. 622, 642-43

(1994); see also Discovery Network, 507 U.S. at 429.

The City asserts, and we have no reason to doubt, that it

passed its active solicitation ban in an effort to protect Center

patrons from harassment. That is a legitimate, non-contentbased purpose, and Rule F.3.a is therefore content-based only

if it discriminates against speech on its face on the basis of

content. It does.

[11] First, the City’s suggestion to the contrary notwithstanding, Rule F.3.a does regulate speech, not conduct. As we

explained at length in ACLU II, regulations that ban certain

conduct associated with solicitation do not violate the prohibition on content-based regulation of speech. See 466 F.3d at

794-96. A ban on the actual hand-to-hand exchange of

money, for example, is not content-based speech regulation.

See Lee, 505 U.S. at 705 (Kennedy, J., concurring) (stating

that a ban on in-hand donations was not a content-based regulation of speech because it was “directed only at the physical

exchange of money”); see also ACLU II, 466 F.3d at 795

BERGER v. CITY OF SEATTLE 7775
(relying on Justice Kennedy’s concurrence in Lee). But Rule

F.3.a allows the conduct — exchange of money. It regulates

only the speech, by specifying the medium and manner of

requesting money — only in writing, and only passively.

[12] Second, Rule F.3.a is content-based by its very terms.

It specifically restricts street performers from communicating

a particular set of messages — requests for donations, such as

“I’d like you to give me some money if you enjoyed my performance.” Performers are otherwise free to communicate

whatever ideas they like, however they wish. As we stated

with respect to a similar solicitation ban in ACLU II, while

“this distinction [may be] innocuous or eminently reasonable,

it is still a content-based distinction because it ‘singles out

certain speech for differential treatment based on the idea

expressed.’ ” See ACLU II, 466 F.3d at 794 (quoting Foti, 146

F.3d at 636 n.7). 

In other words, although the Center’s active solicitation

rule regulates the “manner” in which street performers may

express themselves, it does so based on the content of the performer’s message. A performer at the Seattle Center need not

rely on a sign, for example, to express his or her views on a

political candidate; she can use her voice. To use another

example, Rule F.3.a is no better than a regulation that forbids

those addressing abortion issues, but not those protesting war,

from giving speeches in a park, but allows abortion protestors

and supporters to pass out leaflets about abortion. As these

examples show, one can regulate the manner of speech on the

basis of content, taking the regulation outside the time, place,

and manner rubric, even though some manner of communication on the subject is allowed.21

21In dissent, Judge Gould confuses viewpoint-neutrality with contentneutrality. Gould Dissent at 7826 (noting that “there are no favored organizations or persons — no street performer advancing any cause can

solicit funds from Seattle Center patrons in an active way”). The Center’s

passive solicitation rule is certainly viewpoint-neutral in that it affects all

street performers regardless of their message. But, for the reasons discussed above, it is nonetheless content-based, as it singles out certain content for special treatment. 

7776 BERGER v. CITY OF SEATTLE
Our conclusion that the active solicitation ban is contentbased is supported — but not determined — by the fact that

an officer seeking to enforce the active solicitation ban “must

necessarily examine the content of the message that is conveyed.” Forsyth County, 505 U.S. at 134 (internal quotation

marks and citations omitted); see also ACLU II, 466 F.3d at

796 n.12. How else would an officer determine whether a performer’s tip-of-the-cap was accompanied by a permissible

“Thank you” or a prohibited “Please give?”

22

[13] In short, Rule F.3.a is a content-based limitation on

speech. That it only restricts, rather than completely bans, particular content makes it no more content-neutral.23

22That an officer must evaluate the content of a message to determine

whether a regulation applies is evidence that the regulation is contentbased, although it is not dispositive. See Forsyth County, 505 U.S. at 134.

The “officer must read it” test is not always determinative of the issue of

whether a regulation is facially content-based. See Ctr. for Bio-Ethical

Reform, 533 F.3d at 789 n.5 (“Whether an officer must read a message is

persuasive evidence of an impermissible content-based purpose, but is not

dispositive.”). 

23In ACORN, we held that a City of Phoenix ordinance prohibiting the

solicitation of donations from people in vehicles stopped at red lights was

content-neutral. 798 F.2d at 1267-68. We also noted approvingly that the

ordinance did not enjoin individuals from otherwise distributing literature

to or orally communicating with vehicle occupants. Id. at 1271. Read

broadly, this holding would conflict with our current conclusion, as well

as with our holding in ACLU II. See ACLU II, 466 F.3d at 794 (holding

that a ban on solicitation, but not on other messages, was content-based).

We do not interpret ACORN so broadly, however. We see no indication

that the ordinance at issue forbade passing out handbills asking car drivers

or passengers to contribute by mail to a charity or cause, as opposed to

soliciting on-the-spot donations. That is, the ordinance at issue in ACORN,

like that in Lee, prohibited only the immediate physical exchange of

money. See Lee, 505 U.S. at 704-05 (Kennedy, J., concurring). Such a regulation is not a content-based regulation of speech, and so does not run

afoul of the content neutrality requirement. 

BERGER v. CITY OF SEATTLE 7777
2. Strict scrutiny

[14] As a content-based regulation, the ban on active solicitation is valid only if it serves a compelling government interest in the least restrictive manner possible. Rule F.3.a does

neither, and so is not one of the “rare . . . regulation[s]

restricting speech because of its content” that is “permissible.” See Playboy Entertainment Group, 529 U.S. at 818.

As a general matter, it is unlikely the City’s asserted interest in reducing obnoxious behavior by street performers could

ever be considered compelling. See S.O.C., Inc. v. County of

Clark, 152 F.3d 1136, 1146 (9th Cir. 1998) (noting that,

although the government “may have a substantial interest in

preventing solicitors from harassing pedestrians on public

streets and sidewalks[,] . . . these substantial interests . . . may

not be compelling”). This stated interest pales in comparison

to those interests the Supreme Court has found compelling in

a First Amendment context. See Burson v. Freeman, 504 U.S.

191, 198-200 (1992) (plurality opinion) (reducing voter intimidation and election fraud); Eu v. S.F. County Democratic

Cent. Comm., 489 U.S. 214, 232 (1989) (protecting “the

integrity of the electoral process”); R.A.V. v. City of St. Paul,

505 U.S. 377, 395 (1992) (safeguarding “the basic human

rights of members of groups that have historically been subjected to discrimination”); see also Alaskan Independence

Party v. Alaska, 545 F.3d 1173, 1180 (9th Cir. 2008) (elimination of fraud and corruption in the state election process);

Cal. Pro-Life Council, Inc. v. Randolph, 507 F.3d 1172, 1179

& n.8 (9th Cir. 2007) (disclosure of political information to

the electorate). 

But even if reducing aggressive solicitation qualifies as a

compelling interest, the Center’s passive solicitation rule is

far from the least restrictive means by which the City could

discourage “pushy” or “overbearing” solicitation. Rule F.3.a

bars all active solicitation. It reaches innocuous verbal

requests for donations; it prohibits a performer from “gestur7778 BERGER v. CITY OF SEATTLE
[ing]” towards the passive receptacle that the Rules permit the

performer to display. Yet, “[a] complete ban can be narrowly

tailored . . . only if each activity within the proscription’s

scope is an appropriately targeted evil.” Frisby, 487 U.S. at

485. Rule F.3.a cannot possibly meet that standard.

If the City desires to curb aggressive solicitation, it could

enforce an appropriately worded prohibition on aggressive

behavior. If necessary, the City can also rely on constitutionally valid nuisance and aggressive panhandling laws to control street performers who will not take no for an answer

when asking for money. 

[15] The Supreme Court in Village of Schaumburg

observed that “[t]he [local government’s] legitimate interest

in preventing fraud can be better served by measures less

intrusive than a direct prohibition on solicitation. Fraudulent

misrepresentations can be prohibited and the penal laws used

to punish such conduct directly.” 444 U.S. at 637; see also

Riley, 487 U.S. at 795; Schneider, 308 U.S. at 164. Similarly,

punishing offensive conduct after it has occurred is indubitably a less restrictive way to protect audiences from serious

annoyances than banning all forms of active solicitation,

whether problematic or not. The City’s sweeping ban is simply not the least restrictive means of reducing overbearing

street performer behavior. It therefore cannot stand.

VI. Rule G.4: The Captive Audience Rule

A. Overview of the Rule

Unlike the rules we have already discussed, Rule G.4

applies to all speakers, not just to street performers. It prohibits all “speech activities . . . within thirty (30) feet of any captive audience.” “Speech activities” include “both political

speech and commercial speech[,]” but do not include “activi[-

ties] conducted by City employees or licensed concessionaires.” Rule C.14. A “captive audience” is 

BERGER v. CITY OF SEATTLE 7779
any person or group of persons: 1) waiting in line to

obtain tickets or food or other goods or services, or

to attend any Seattle Center event; 2) attending or

being in an audience at any Seattle Center event; or

3) seated in any seating location where foods or beverages are consumed. 

Rule C.5. 

B. Constitutionality of Captive Audience Rule

[16] The Center’s “captive audience” Rule is the most troublesome of the challenged regulations, striking at the very

core of the precepts underlying the protection of speech in traditional public fora. The Rule’s very purpose — according to

the City — is to “protect” many of the individuals who have

gathered at the Center, a public forum, from efforts by fellow

citizens to communicate with them. That purpose is squarely

at odds with the fundamental principle of our traditional public forum jurisprudence — namely, that use of parks for public discussion and gathering “has, from ancient times, been a

part of the privileges, immunities, rights, and liberties of citizens” and “must not, in the guise of regulation, be abridged

or denied.” See Hague, 307 U.S. at 515-16. The seminal captive audience case, Lehman v. City of Shaker Heights, 418

U.S. 298 (1974), specifically abjured any such application of

the captive audience concept, recognizing that a public street

car is not a “First Amendment forum” like a “park,” “where

First Amendment values inalterably prevail.” Id. at 302-04.

[17] And, indeed, from “time out of mind,” public parks

have been central to our constitutional heritage of open discourse. See Hague, 307 U.S. at 515. They provide an essential

outlet to those who, for economic or other reasons, would not

otherwise be able to participate in that discourse. See Grossman, 33 F.3d at 1205 n.8. Given the importance of these

locales, we cannot countenance the view that individuals who

choose to enter them, for whatever reason, are to be protected

7780 BERGER v. CITY OF SEATTLE
from speech and ideas those individuals find disagreeable,

uncomfortable, or annoying. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910-11 (1982).24

[18] The Supreme Court’s “captive audience” jurisprudence fully supports our conclusion that public park-goers, in

general, are not a protectable captive audience for constitutional purposes. “The plain, if at times disquieting, truth is

that in our pluralistic society, constantly proliferating new and

ingenious forms of expression, we are inescapably captive

audiences for many purposes.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 210 (1975) (internal quotation marks and

citation omitted). Only in “narrow circumstances” may government restrain speech to protect such audiences. Id. at 210-

11. “The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that

substantial privacy interests are being invaded in an essentially intolerable manner.” Cohen v. California, 403 U.S. 15,

21 (1971).

Such substantial privacy interests include “the psychological [and] physical well-being of the [hospital] patient held

‘captive’ by medical circumstance.” Madsen v. Women’s

Health Ctr., 512 U.S. 753, 768-71 (1994) (validating an

injunction creating a 36-foot buffer zone around entrances of

an abortion clinic in which picketing and demonstrating,

among other activities, were barred); see also Hill v. Colorado, 530 U.S. 703, 728-30 (2000) (upholding an eight-foot

regulatory buffer around clinic entrances due to the “unique

concerns that surround health care facilities,” where those

using the facilities “are often in particularly vulnerable physical and emotional conditions”). They also encompass “the

quiet enjoyment” of one’s home. Frisby, 487 U.S. at 483

24“Fighting words” are, of course, proscribable under the First Amendment. See Virginia v. Black, 538 U.S. 343, 359 (2003) (citing Chaplinsky

v. New Hampshire, 315 U.S. 568, 572 (1942)). 

BERGER v. CITY OF SEATTLE 7781
(upholding a ban on “focused picketing taking place solely in

front of a particular residence”).

The unique privacy and self-determination interests

involved in protecting medical facilities and residences simply do not exist for those waiting in line or having lunch outdoors in a public park. Indeed, we have already rejected such

a comparison in Kuba, 387 F.3d at 861 n.10, explaining that

patrons of a “place of public entertainment” were not a captive audience similar to the intended audiences in Madsen and

its progeny, because they were obviously not “particularly

vulnerable,” as are the patients and doctors in such cases. 

Moreover, even if Seattle Center officials could justify a

prohibition on unwelcome speech, the current “captive audience” regulation would still be too broad because it prohibits

all “speech activities,” not just those that continue after the

recipient of the speech has signaled a preference to be left

alone. See Jews for Jesus, 482 U.S. at 574-75 (holding that a

regulation was constitutionally overbroad where it prohibited

all “First Amendment activities” and noting that “no conceivable governmental interest would justify such an absolute prohibition of speech”); see also Schenck v. Pro-Choice Network

of Western New York, 519 U.S. 357, 383-84 (1997) (holding

that an injunction provision that required abortion protestors

to move away from abortion clinic patients who asked to be

left alone did not violate the First Amendment).

The implications of upholding the Seattle Center’s “captive

audience” regulation are startling. Doing so would permit the

almost unlimited regulation of speech in a public park. After

all, any visitor to a park, even one strolling through the park,

is “captive” in a particular spot, in that the visitor might have

reason to stay where she is rather than move to another location in the park or to a different park. There is no reason to

suspect that a group of runners on a park track, parents watching their children in a playground, or an individual sitting in

her favorite spot are any less “captive” — i.e., less interested

7782 BERGER v. CITY OF SEATTLE
in staying where they are rather than moving to a different

location — than those who are waiting in line or eating while

seated in a designated area.

[19] In sum, we hold that public park-goers are not a “captive audience.”

25 Any interest they may have in pursuing such

activities as waiting in line, attending an event, or eating without communication by others is not a “substantial privacy

interest.” 

[20] Moreover, even if the City’s purported interest in protecting certain park-goers from communications by others

were substantial — which it is not — Rule G.4 is not narrowly tailored to meet that interest. This is so for two reasons.

First, the rule’s preference for concessionaires and licensees leads to the odd result that purely commercial speech,

which receives more limited First Amendment protection than

noncommercial speech, is allowed and encouraged, while

artistic and political speech is not. This bias in favor of commercial speech is, on its own, cause for the rule’s invalidation.

See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 513

(1981) (plurality opinion); see also G.K. Ltd. Travel v. City of

Lake Oswego, 436 F.3d 1064, 1081 (9th Cir. 2006) (ordinance

is invalid if it favors commercial speech over noncommercial

speech); Desert Outdoor Adver., Inc. v. City of Moreno Valley, 103 F.3d 814, 819-20 (9th Cir. 1996) (same).

Second, Rule G.4 is unconstitutionally broad. See Bd. of

Airport Comm’rs of City of L. A. v. Jews for Jesus, Inc., 482

U.S. 569, 574-75 (1987). In Jews for Jesus, the Court invali25Although we hold that Center patrons are not a “captive audience” for

First Amendment purposes when frequenting the Center’s public open

areas, we certainly do not mean to suggest that the City could not promulgate rules that prohibit and punish disruptive conduct during planned Center events or at indoor Center venues. As discussed below, such a rule

would, of course, have to be much more narrowly tailored than the sweeping ban on speech that the City has adopted here. 

BERGER v. CITY OF SEATTLE 7783
dated, on overbreadth grounds, a regulation that prohibited

individuals from engaging in any “First Amendment activities” within the Central Terminal of Los Angeles International

Airport. Id. at 574. In striking down the rule, the Court noted

that “[t]he resolution does not merely regulate expressive

activity in the Central Terminal Area that might create problems such as congestion or the disruption of the activities of

those who use LAX[;] . . . it prohibits even talking and reading, or the wearing of campaign buttons or symbolic clothing.” Id. at 574-75. “We think it obvious that such a

[sweeping] ban cannot be justified . . . because no conceivable

governmental interest would justify such an absolute prohibition of speech.” Id. at 575.

The Center’s “captive audience” rule — which prohibits all

“speech activities . . . within thirty (30) feet of a captive audience” — is similarly overbroad in its sweep. By its very

terms, Rule G.4 prohibits both welcome and unwelcome communications, both verbal tirades and silent protests, both

offensive language and the mildest remark. It would, for

instance, forbid a political campaign representative from

offering a handbill to a consenting park-goer in an entirely

benign — even silent — manner. It would likewise prevent a

concerned citizen from displaying a sign critical of the city

government. Such passive and unthreatening acts certainly do

not intrude on the privacy of park-goers in “an essentially

intolerable manner,” if they intrude at all. See Cohen, 403

U.S. at 21. Thus, by flatly prohibiting all “speech activities,”

the Center’s “captive audience” rule, like the regulation in

Jews for Jesus, “does not merely regulate expressive activity

in the [Center] that might create [the alleged] problems.” 482

U.S. at 574. No governmental interest — and certainly not an

interest in protecting public park-goers from unwanted communications — could justify such a sweeping ban. See id.

Rule G.4 also creates precisely the type of “floating buffer

zone[ ]” that the Court found unconstitutional in Schenck v.

Pro-Choice Network of Western New York, 519 U.S. 357,

7784 BERGER v. CITY OF SEATTLE
377-80 (1997). In Schenck, the Court considered an injunction

which barred demonstrations within fifteen feet of any person

or vehicle using an abortion clinic. Id. at 367. According to

the court, the “floating” fifteen foot zones created by the

injunction created an uncertain and over-broad system of

restraints on speech. Id. at 377-80. As clinic patients moved,

speech-restricted areas shifted across the landscape in an

unpredictable and, in the Court’s view, unacceptable manner.

Id.

Rule G.4’s thirty-foot buffer zone generates the same

unpredictability problems here. As the end of a line shifts, or

a picnic table is occupied, the Center’s captive audience rule

snaps on to bar speech within thirty feet of the line or the picnickers. This system of shifting “speech-free” zones is the sort

of capricious restraint, likely to chill far more speech than the

Seattle Center would be justified in regulating, that Schenck

struck down. 519 U.S. at 377-80.

[21] In sum, the City’s “captive audience” rule not only

fails to address a substantial government interest, it also burdens considerably more speech than necessary to achieve its

purported goals. Rule G.4’s flat ban on all speech activities

encompasses a broad compendium of expressive activity,

much of which is not disruptive or unduly invasive of the privacy interests of allegedly “captive” park-goers. In addition,

the rule promulgates unconstitutionally vague “buffer” zones

that are likely to chill otherwise permissible speech. For all

these reasons, the “captive audience” rule cannot stand.

VII. Response to the Dissenters

Although we have responded to specific points raised by

the dissent throughout this opinion, we wish to address two

broader concerns that we have with the various dissents. 

First, in order to bolster their arguments, both Chief Judge

Kozinski and Judge Gould mischaracterize both the nature of

BERGER v. CITY OF SEATTLE 7785
the Center’s rules and our analysis of those rules. Chief Judge

Kozinski, for example, repeatedly suggests that the rules

apply only to those performers who solicit money. See, e.g.,

Kozinski Dissent at 7799-7800 (noting that the rules are

intended to protect park-goers from “overly aggressive street

performers bent on increasing their own visibility and

income”); id. at 7806 (“[S]treet performers like Berger are not

merely citizens who wish to use the park as a forum for public

expression or religious worship on an occasional basis; they

are operating a business and earning a living from these activities.”); id. at 7807 (“The commercial aspects of the street performer trade, which my colleagues overlook, set up the

dynamics that have given Seattle Center cause for concern.”).

That understanding of the rules is simply wrong. No such limitation appears in the Center’s rules, nor has it been propounded by the City. Instead, the permitting requirement

applies, on its face, to all “member[s] of the general public

who engage[ ] in any performing art or the playing of any

musical instrument, singing or vocalizing,” Rule C.15. It does

not distinguish between performers who seek funds and those

who merely wish to entertain or to express an opinion through

performance art. The City’s “captive audience” rule goes even

further. It applies to all park-goers, not just to street performers, and certainly not just to street performers who solicit

funds. The City has not argued otherwise.

The dissenters also imply that the rules are limited to repeat

performers, see Kozinski Dissent at 7806, 7808, and to preventing “unwelcome or harassing performances.” See Gould

Dissent at 7829. Once again, the scope of the rules at issue is

not limited to these categories, nor has the City so interpreted

them. The permitting requirement and passive solicitation

rules apply to one-time performers and to Seattle Center regulars in equal measure. The sweeping “captive audience” rule

applies to everyone (other than City employees and licensed

concessionaires) at all times. In addition, none of the rules differentiate between benign, inoffensive conduct and aggres7786 BERGER v. CITY OF SEATTLE
sive, unwelcome acts. They simply deter or ban all relevant

speech.

We do not discount the City’s interest in protecting patrons

of the Seattle Center from “browbeating” and other hostile

conduct. The problem is that the City, rather than tailoring its

rules to curtail problematic behavior, imposed sweeping bans

on expressive activity and implemented a broad registration

requirement. It is, in large part, the overbreadth of the rules,

an overbreadth the dissenters do not appear to recognize, that

renders them constitutionally infirm. See Jews for Jesus, 482

U.S. at 574-76.

Chief Judge Kozinski also mischaracterizes, or perhaps

misunderstands, key aspects of our opinion. For instance, he

asserts that “it is a wholly different matter to derive some sort

of rule that prohibits — or strongly discourages — regulation

of speech by a single individual, regardless of the size of his

expected audience or the disruption he may cause.” Kozinski

Dissent at 7814. The “rule” that we propose is precisely the

opposite of what the Chief Judge suggests. One of the central

deficiencies of the Center’s permitting requirement is that it

does not consider the size of a street performer’s expected

audience or “the disruption he may cause.” It applies to every

member of the “general public” who wishes to perform, sing,

or vocalize on the Center’s grounds, irrespective of the size

of their planned or actual audience. If, by contrast, the permitting requirement applied only to performers who intend to

attract a crowd of a sufficiently large size (say 100 persons or

more), the requirement might very well be constitutional. For

this reason, Judge Kozinski’s suggestion that our opinion

would preclude a permit requirement for the famous civil

rights leader who plans to hold a rally for half a million people at the Lincoln Memorial is absurd. Instead, the point is

that the Center’s permitting requirement is not limited to huge

rallies — or even small, hundred person ones.

Moreover, our conclusion that the Constitution prohibits

the government from implementing a registration system that

BERGER v. CITY OF SEATTLE 7787
governs speech in a public forum and applies to groups as

small as a single individual performing without an audience

is neither new nor idiosyncratic. This circuit has repeatedly

affirmed the principle that an advance notification requirement applicable to speech in a public forum must be limited

to larger groups. See Long Beach Area Peace Network, 522

F.3d at 1032-33; Santa Monica Food Not Bombs, 450 F.3d at

1039; Grossman, 33 F.3d at 1206; City of Richmond, 743

F.3d at 1355; Rosen, 641 F.2d at 1247-48. Several other circuits have reached this same conclusion. See Cox v. City of

Charleston, 416 F.3d 281, 285 (4th Cir. 2005); AmericanArab Anti-Discrimination Committee v. City of Dearborn, 418

F.3d 600, 608 (6th Cir. 2005); Douglas v. Brownell, 88 F.3d

1511, 1524 (8th Cir. 1996). The dissenters ignore this long

line of authority, concluding simply that a “rigid numerical

rule will fail because it makes no account for the performance’s effect on others.” Kozinski Dissent at 7817. But, as

we and several other appellate courts have noted, a numerical

floor is necessary precisely because such a floor indicates that

the government has properly tailored its permitting requirement to address the effect that a speaker will have on other

users of a public space.

We also reiterate that the City is free to enforce its existing

rules, including its criminal statutes and traffic ordinances,

against individual offenders. We do not hold, as Chief Judge

Kozinski’s other, equally silly, examples appear to suggest,

see Kozinski Dissent at 7814-16, that the First Amendment

exempts all individual speakers from regulation. If Yo-Yo Ma

or Mr. Nez decided unilaterally to obstruct vehicle traffic, the

government can, of course, prevent him from doing so by

enforcing its vehicular codes. Similarly, Seattle Center officials can, pursuant to its existing rules, remove a street performer who is blocking pedestrian traffic or harassing parkgoers. But a permitting requirement that applies to a group as

small as a single person and which governs speech activity in

a public park (not on a city street) is not necessary to promote

7788 BERGER v. CITY OF SEATTLE
the interests the City asserts in this case and is highly offensive to our constitutional values.

Which leads to our second — and overriding — general

concern with the approach of the dissenters: the dissents

ignore, or at least discount, bedrock principles of First

Amendment jurisprudence. Among these is the proposition

that public parks are an especially important and protected

forum for speech, even as compared to public streets. See

Hague, 307 U.S. at 515; Grossman, 33 F.3d at 1204-05. Chief

Judge Kozinski describes the Seattle Center as a “cultural

achievement,” “an enterprise,” a “multi-use facility,” and the

“crown jewel of [Seattle’s] civic enterprise.” While accurate,

these descriptions mask the Seattle Center’s true identity: it is

an 80-acre expanse of public land that includes twenty-three

acres of outdoor, public park space. However unique the Seattle Center may be, it is, fundamentally, a public park. As such,

regulations on speech within its boundaries warrant particularly close attention.

The dissenters also disregard the fundamental premise that

“a law requiring a permit to engage in [individual] speech

constitutes a dramatic departure from our national heritage

and constitutional tradition,” Watchtower Bible, 536 U.S. at

166, because “prior restraints on speech [like the City’s permitting requirement] . . . are the most serious and least tolerable infringement on First Amendment rights.” Nebraska Press

Ass’n v. Stuart, 427 U.S. 539, 559 (1976). Such restraints bear

a “heavy presumption” against their constitutionality. Forsyth

County, 505 U.S. at 130. Without acknowledging the constitutionally suspect nature of prior restraints, the dissenters would

uphold the permitting requirement on the weakest of rationales — i.e., that the requirement helps the City identify and

punish rule breakers. As already discussed at length, the City

need not implement a broadly applicable prior restraint to

achieve these objectives. Allowing such an “intolerable

infringement on First Amendment rights” therefore simply

cannot be countenanced.

BERGER v. CITY OF SEATTLE 7789
VIII. Conclusion

First Amendment protections are robust, yet at the same

time fragile and precious. Often, government restrictions on

speech seem perfectly reasonable at first glance, and the

encroachment on expression forgivable in pursuit of convenience or good manners. But seventy years of law beginning

with Hague v. CIO, has laid down the basic principle that

there are a few government-owned areas — of which public

parks are the preeminent example — in which the values

underlying the First Amendment favor communication among

citizens over merely reasonable speech restrictions, and

require instead that any regulation of speech be targeted at

real problems, and carefully calibrated to solve those problems. In other words, while some — among them, the dissenters in this case — might prefer a “Truman Show” version of

pristine placidity in our public parks, our First Amendment

jurisprudence rests on a very different vision.

The standards for valid regulation in traditional public fora

are just moderately stringent, an intermediate level of scrutiny

in the contemporary constitutional lingo. But the First

Amendment interests advanced by the developed time, place,

and manner jurisprudence does require that we apply that

mid-level scrutiny with care, paying attention to the details of

the regulation at issue, the state of the record, and the fit

between the regulation and the governmental interest asserted.

Having done so, we conclude that none of the challenged

Rules qualify as reasonable time, place, or manner restrictions

on the current record and that the district court’s grant of summary judgment to Berger should be affirmed as to all but the

location regulation, Rule F.5, and that the validity of Rule F.5

must be determined on remand, as the grant of summary judgment was improper.

AFFIRMED IN PART and REMANDED IN PART.

7790 BERGER v. CITY OF SEATTLE
Volume 2 of 2

BERGER v. CITY OF SEATTLE 7791
Chief Judge KOZINSKI, with whom Judges GOULD and

TALLMAN join, dissenting:

Seattle Center is an astonishing cultural achievement. Just

minutes from downtown on foot or by monorail, it is home to

a dizzying array of entertainment venues, sporting events, festivals, educational and community programs, restaurants,

museums and, of course, the world-famous Space Needle.

The Center’s website documents the close co-operation

between the city government and the scores of private, professional and community organizations that provide over 10,000

attractions and events there every year. Having had its start as

the 1962 World’s Fair, the Center campus has maintained and

enhanced its vibrancy over the intervening decades. In a

square a little smaller than 6 blocks on a side, the Center is

home to a professional sports team, PBS broadcast station,

opera, ballet, Shakespeare Company, science center, IMAX

theater, Experience Music Project (look it up), Science Fiction

Hall of Fame, amusement park and countless other attractions.

The Center is open from 7 a.m. to midnight every day, and

this past year hosted 12 million visitors—roughly the population of Pennsylvania.

Operating an enterprise of this magnitude and complexity

requires a good deal of effort and commitment. It also calls

for some basic rules, to ensure the safety and convenience of

the tens of thousands of people who visit the Center on an

average day, and to preserve the atmosphere of hospitality and

neighborliness that is the Center’s guiding spirit. 

7792 BERGER v. CITY OF SEATTLE
The rules pertaining to street performers, which my colleagues discard like so much wilted lettuce, were adopted in

response to specific problems: repeated disputes among performers about location, performances in places that could not

accommodate the crowds gathered to watch them, and rude

and overbearing demeanor of some performers towards the

public. The following is from a declaration submitted by the

city, which we must accept as true for purposes of summary

judgment: 

Before the performer permit rules went into effect,

. . . there were approximately 3 or 4 complaints by

performers against other performers per week. If

[plaintiff] Magic Mike was here, we could expect

one or more from him and then one or more from

whomever he was complaining about. . . . [T]here

would be 1 complaint per week by a tenant of a

facility in the Seattle Center . . . [and] 1 complaint

per month by a member of the public against a performer. . . . The general complaints by performers

against other performers would be “that is my spot

and he can’t be there” and/or “that performer is

doing what I am doing and they won’t move.” . . .

The general complaints by tenants against performers . . . concerned too much noise or blocking access

. . . . [C]omplaints by members of the public generally concerned pushy or overbearing performers. . .

. Emergency Service would normally receive 1 or 2

complaints per week regarding a performer trapping

a captive audience.

The Center also experienced other problems: “Unregulated

street performing had led to situations in which street performers had set up in areas that could not accommodate the

crowds the performances sometimes gather. Street performers

also sometimes set up too close to one another, creating conflicts between performers.” 

BERGER v. CITY OF SEATTLE 7793
Seattle Center authorities found that they had no effective

way to deal with these persistent problems: 

Before the permit system, the only recourse that

Emergency Services had was to speak to the parties

involved and ask performers to get along. We would

ask anyone with loud or blocking performances to

move or quiet down. Overbearing performers were

spoken to and asked to leave if they did not change

how they were doing their act. These requests did

not reduce the number of complaints involving performers. 

The new rules had the desired effect, bringing peace and

order to what had been a chaotic and disruptive process:

After the performer permit rules went into effect,

Emergency Service rarely received any complaints

regarding performers. In general, the permit system

is welcomed by everyone. They know there are designated spaces for all different types of performances

and that there are rules that everyone must follow. It

has eliminated confrontation between performers.

There are plenty of spots and they are not in the way

of one another. 

The majority here manages to strike down almost all of

these rules without bothering to give Seattle an opportunity to

present evidence justifying them. To that end, my colleagues

deploy a number of techniques well designed for this purpose:

1. The majority finds the solution adopted by Seattle Center

to be both too broad, maj. at 7765-67, and too narrow, id. at

7751, 7761-62, and so concludes that there’s an “imperfect

fit” between the rules and the goals the city seeks to achieve.

Id. at 7761. But the Supreme Court has made it quite clear

that time, place and manner regulations need not be perfectly

tailored, and that a government body has considerable discre7794 BERGER v. CITY OF SEATTLE
tion to fashion regulations as it thinks best: “The validity of

such regulations does not turn on a judge’s agreement with

the responsible decisionmaker concerning the most appropriate method for promoting significant government interests.”

United States v. Albertini, 472 U.S. 675, 689 (1985). Rather,

a regulation is valid “so long as [it] promotes a substantial

government interest that would be achieved less effectively

absent the regulation.” Id.; Ward v. Rock Against Racism, 491

U.S. 781, 799 (1989). 

Instead of settling for effective regulations, the majority

demands perfection. But perfection is hard to find in rules

written and applied by mortals. Once judges start looking for

imperfections, that is pretty much the end of the story—and

of the regulations. No rules written by man can withstand

such persnickety scrutiny.

2. The majority also trots out the time-honored technique

of declaring that the rules in question don’t really solve the

problems they’re supposed to solve. Maj. at 7758-59. Which

reminds me of the quip about economists greeting some item

of news with the observation, “That may be so in practice, but

is it true in theory?” My colleagues overlook evidence in the

record that the rules have actually worked—the problems they

were designed to solve went away as long as the rules were

in effect. See p.7794 supra.

We are reviewing a grant of summary judgment against the

Center; we must view the evidence in the light most favorable

to it, and affirm only if there are no disputed issues of material fact. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000)

(en banc). Instead, the majority makes its own findings, such

as: the rules “do not promote [Seattle Center’s] interests in

any significant way,” maj. at 7759; “do[ ] not aid in coordinating multiple uses” of Seattle Center, maj. at 7760; and that

most street performances pose “no realistic coordination or

traffic flow concerns,” maj. at 7766. Who needs trials when

we can find facts on appeal?

BERGER v. CITY OF SEATTLE 7795
3. My colleagues also come up with solutions of their own,

which they claim would better solve the problems. See, e.g.,

maj. at 7764-65, 7768. But the majority’s proffered solutions

suffer from the same defects it finds in those adopted by Seattle Center, containing such fudge-words as “unwanted behavior” and “most sought-after locales.” Maj. at 7762, 7765. The

majority also suggests that the rules are unnecessary because

the Center could solve the problems by “enforc[ing] an appropriately worded prohibition on aggressive behavior.” Maj. at

7779; see also id. at 7762. Does the majority really mean to

say that the Center can’t have clear rules about obtaining permits and not trapping captive audiences, but it can kick out

any street performer it deems “aggressive”? 

Fortunately for my colleagues, their proposed solutions

don’t need to pass constitutional muster; they can just toss

them out as supposedly superior alternatives. But if the city

were gullible enough to follow these suggestions, my colleagues would find reasons to strike down the new rules in the

next round of litigation. This artifice can be repeated many

times, to the delight of plaintiff and the general enrichment of

the legal profession.

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.” Maj. at 7765.

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.

4. 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

7796 BERGER v. CITY OF SEATTLE
its patrons before the rules were instituted. For instance, the

majority repeatedly describes the rules as “sweeping bans” on

expressive activity. Maj. at 7779, 7784, 7786. In fact, no one

is prevented from speaking; the rules merely regulate the

time, place and manner of speech, and very lightly at that.

Permits are issued on a non-discretionary, non-discriminatory

basis, and the performers may conduct any performance they

please, however often they want, at any time between 11:00

a.m. and 10:00 p.m., at any of sixteen designated locations.

No one but the cantankerous Mr. Berger has a problem with

the rules. 

Citizens visiting the Center also have First Amendment

rights: to enjoy the arts, music and programs offered there.

Why should Berger be given a heckler’s veto over the public’s right to peaceful enjoyment of the park and that of other

performers to attract an audience? Does the First Amendment

really mean that citizens trying to enjoy a city park their tax

dollars pay for must let themselves be browbeaten by Mr.

Berger into giving him money for performances they don’t

wish to watch? As Justice Breyer recently observed, “cities

use park space to further a variety of recreational, historical,

educational, aesthetic, and other civic interests,” and it is

“perfectly proper” for cities to place “proportionate restriction[s]” on speech in order to preserve and coordinate these

other interests. Pleasant Grove City v. Summum, 129 S. Ct.

1125, 1141 (2009) (Breyer, J., concurring).

5. The majority takes the concept of a facial challenge to

extremes, conjuring up all manner of hypothetical people who

could be affected by the regulations, even though there’s no

real possibility that the rules will be applied in such a counterproductive manner. See, e.g., maj. at 7767 (guitar strummer at

family picnic); id. (man whistling as he walks); id. at 7784

(person making “mildest remark” to someone standing in

line). Plaintiffs can only raise the rights of others in an overbreadth challenge if there is “a realistic danger” that the challenged rule “will significantly compromise recognized First

BERGER v. CITY OF SEATTLE 7797
Amendment protections of parties not before the Court.”

Members of the City Council of Los Angeles v. Taxpayers for

Vincent, 466 U.S. 789, 801 (1994). The majority may come

up with any number of hypothetical ways in which the regulations could be applied, but it makes no difference because

guitar-strumming picnickers and itinerant whistlers face no

realistic danger of being hassled by Seattle Center authorities.

The majority also faults Seattle Center for applying its rules

to street performers who are not obnoxious. Maj. at 7765-66.

But that’s how rules operate: Two million travelers a day go

through U.S. airport metal detectors in order to deter a few—

very few—political terrorists. The Center’s rules are designed

to prevent abusive behavior, not punish those who are abusive. None of these other performers has objected to the rules

and, according to the city, they are happy with them. 

The irony is captured in footnote 15 of the majority opinion, which reveals that plaintiff was involved in 70 percent of

the street performer complaints filed before adoption of the

rules. It is fairly clear from the record that the rules were

adopted largely to protect others—including other street

performers—from Mr. Berger’s overly aggressive behavior. It

borders on chutzpah to invoke the rights of these other individuals, none of whom has seen fit to join Mr. Berger’s suit,

in striking down the rules designed to protect them from him.

6. The majority refuses to adopt the Center’s proffered narrowing construction, which would limit the permit requirement to performances “aimed at attracting an audience,” on

the ground that it would make things worse, not better. Maj.

at 7767-70. Yet the proffered narrowing avoids most of the

majority’s examples of supposed overbreadth. A man whistling as he walks, and a few friends singing for fun on their

way to a concert, are clearly not engaged in a performance

aimed at attracting an audience. Nor is the guitar-strummer at

the family picnic; his only audience—his family—would be

gathered around him regardless of his musical skills. Profes7798 BERGER v. CITY OF SEATTLE
sional street performers are quite different, as anyone who has

watched them can attest. They often wear costumes or distinctive clothes; they frequently carry props or musical instruments; and their performance is directed at the public and not

at their companions. The majority makes it sound like it

would take Sherlock Holmes working closely with Hercule

Poirot to figure out who the street performers are, but elsewhere it makes just the opposite point: that the permit is

unnecessary because the Center authorities know exactly who

the street performers are. Maj. at 7763 n.14. The majority

can’t have it both ways. 

“[E]very reasonable construction must be resorted to, in

order to save a [rule] from unconstitutionality.” United States

v. Buckland, 289 F.3d 558, 564 (9th Cir. 2002) (quoting

Hooper v. California, 155 U.S. 648, 657 (1895)); see also

Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973) (“Facial

overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged [rule].”).

My colleagues instead reject every reasonable construction

that might get in the way of finding the rules unconstitutional.

* * *

“Public parks are often closely identified in the public mind

with the government unit that owns the land. City parks—

ranging from those in small towns, like Pioneer Park in Pleasant Grove City, to those in major metropolises, like Central

Park in New York City—commonly play an important role in

defining the identity that a city projects to its own residents

and to the outside world.” Summum, 129 S. Ct. at 1133-34.

Seattle has a legitimate—indeed a vital—interest in maintaining the character of the multi-use facility that is the crown

jewel of its civic enterprise. 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 artBERGER v. CITY OF SEATTLE 7799
ists from overly aggressive street performers bent on increasing their own visibility and income by bullying those around

them.

But the majority is not right. 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. There is little I can add to the excellent analysis in Judge Gould’s opinion as to the specific rules

struck down by the majority. Each of those rules is carefully

tailored and narrowly drawn to deal with specific, identified

problems that, in the judgment of those charged with operating Seattle Center, impaired the safety, convenience and

enjoyment of visitors to the park. And, as Judge N.R. Smith

explains, the performance-location rule is particularly wellsuited to the city’s legitimate objectives, while the objections

to the rule—as to which a trial will now be required—are

nothing but the personal preferences of the man who made the

rules necessary in the first place. 

It is unfortunate that such rules should be needed, as they

seem largely designed to legislate civility. But Mr. Berger has

been less than civil in his dealings with other performers and

the public. The record, for example, references complaints

against Berger for catcalling at a parent who refused to allow

her children to watch his performance, bringing a child to

tears for giving what Berger considered an insufficient donation and threatening and calling obscenities at a Center patron.

In maintaining a hospitable campus, the Center management

is surely entitled to deter such behavior by individuals profiting off its patrons.

Almost seventy years ago, the Supreme Court in Cox v.

New Hampshire, 312 U.S. 569 (1941), unanimously upheld a

state statute that required an advance permit for anyone wishing to exhibit any “theatrical or dramatic representation” or to

conduct any “parade or procession upon any public street or

way, and [any] open-air public meeting upon any ground

7800 BERGER v. CITY OF SEATTLE
abutting thereon.” Id. at 571. The Court’s reasoning is as valid

today as it was then:

Civil liberties, as guaranteed by the Constitution,

imply the existence of an organized society maintaining public order without which liberty itself

would be lost in the excesses of unrestrained abuses.

The authority of a municipality to impose regulations in order to assure the safety and convenience of

the people in the use of public highways has never

been regarded as inconsistent with civil liberties but

rather as one of the means of safeguarding the good

order upon which they ultimately depend.

Id. at 574. So long as the licensing board exercised its authority in a viewpoint-neutral, even-handed, consistent way, and

the fee charged was reasonable, id. at 576-77, the permit

requirement was constitutional, id. at 576: 

If a municipality has authority to control the use of

its public streets for parades or processions, as it

undoubtedly has, it cannot be denied authority to

give consideration, without unfair discrimination, to

time, place and manner in relation to the other proper

uses of the streets. We find it impossible to say that

the limited authority conferred by the licensing provisions of the statute in question as thus construed by

the state court contravened any constitutional right.

Cox dealt with parades on public streets, but the Court

reached the same result when an identically-worded city ordinance was applied to require a license to hold a religious

meeting in a public park:

The principles of the First Amendment are not to be

treated as a promise that everyone with opinions or

beliefs to express may gather around him at any public place and at any time a group for discussion or

BERGER v. CITY OF SEATTLE 7801
instruction. It is a non sequitur to say that First

Amendment rights may not be regulated because

they hold a preferred position in the hierarchy of the

constitutional guarantees of the incidents of freedom.

This Court has never so held and indeed has definitely indicated the contrary. It has indicated

approval of reasonable nondiscriminatory regulation

by governmental authority that preserves peace,

order and tranquillity without deprivation of the First

Amendment guarantees of free speech, press and the

exercise of religion. When considering specifically

the regulation of the use of public parks, this Court

has taken the same position. 

Poulos v. New Hampshire, 345 U.S. 395, 405-06 (1953).

Poulos included an admonition that my colleagues would do

well to heed: “There is no basis for saying that freedom and

order are not compatible. That would be a decision of desperation. Regulation and suppression are not the same, either in

purpose or result, and courts of justice can tell the difference.”

Id. at 408.

Twelve years later, in the other Cox case, Justice Goldberg,

writing for the Court, emphasized the continued validity of

Cox and Poulos and the importance of rules in maintaining

the very concept of civil liberties:

The rights of free speech and assembly, while fundamental in our democratic society, still do not mean

that everyone with opinions or beliefs to express

may address a group at any public place and at any

time. The constitutional guarantee of liberty implies

the existence of an organized society maintaining

public order, without which liberty itself would be

lost in the excesses of anarchy. The control of travel

on the streets is a clear example of governmental

responsibility to insure this necessary order. A

restriction in that relation, designed to promote the

7802 BERGER v. CITY OF SEATTLE
public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some

civil right which, in other circumstances, would be

entitled to protection. 

. . . . 

It is, of course, undisputed that appropriate, limited

discretion, under properly drawn statutes or ordinances, concerning the time, place, duration, or manner of use of the streets for public assemblies may be

vested in administrative officials, provided that such

limited discretion is “exercised with ‘uniformity of

method of treatment upon the facts of each application, free from improper or inappropriate considerations and from unfair discrimination’ . . . [and with]

a ‘systematic, consistent and just order of treatment,

with reference to the convenience of public use of

the highways . . . .’ ” Cox v. New Hampshire, supra,

at 576. See Poulos v. New Hampshire, supra.

Cox v. Louisiana, 379 U.S. 536, 554, 558 (1965) (alterations

in original). 

Cox v. New Hampshire and Poulos have never been overruled, so far as I know; indeed, the Court has built on them.

See, e.g., Ward, 491 U.S. 781 (upholding New York’s soundamplification guideline in Central Park); Heffron v. Int’l

Soc’y of Krishna Consciousness, Inc., 452 U.S. 640 (1981)

(state’s interest in maintaining the orderly movement of the

crowd at annual state fair sufficient to support requirement

that religious group confine its distribution, sales and solicitation activities to a fixed location); Taxpayers for Vincent, 466

U.S. 789 (“municipalities have a weighty, essentially esthetic

interest in proscribing intrusive and unpleasant formats for

expression”). 

BERGER v. CITY OF SEATTLE 7803
The majority turns up its nose at Cox and Poulos, on the

ground that “both cases preceded the development by the

Supreme Court of specific time, place and manner standards,”

maj. at 7760-61, but the Supreme Court recently relied on

them in Thomas v. Chicago Park District, 534 U.S. 316

(2002), where it (again unanimously) upheld a licensing

requirement for any activity in a public park that exceeded 50

participants. In so doing, the Court reiterated the distinction

between permits designed to censor and those designed to

regulate competing uses in public areas: 

“[T]he [permit] required is not the kind of prepublication license deemed a denial of liberty since the

time of John Milton but a ministerial, police routine

for adjusting the rights of citizens so that the opportunity for effective freedom of speech may be preserved.” Poulos v. New Hampshire. Regulations of

the use of a public forum that ensure the safety and

convenience of the people are not “inconsistent with

civil liberties but . . . [are] one of the means of safeguarding the good order upon which [civil liberties]

ultimately depend.” Cox v. New Hampshire.

Id. at 323 (citations omitted, alterations in original). The

Court didn’t ask why the city couldn’t let all gatherings go

forward, and then break up those that got out of hand. Rather,

the Court accepted the city’s estimate that a gathering of more

than 50 people could cause problems and upheld the permit

requirement.

Unlike the circuit opinions on which my colleagues rely,

these Supreme Court cases—an unbroken line spanning more

than six decades—are controlling authority, and we are bound

to follow them. Applying these cases to the facts before us,

I note that Seattle Center is the type of public gathering place

that the Court dealt with in Poulos, Ward, Heffron, Thomas

and Summum. The concerns that gave rise to the permit

requirement and other regulations here are much the same as

7804 BERGER v. CITY OF SEATTLE
in those cases, and in Cox v. New Hampshire and Vincent as

well. Despite the majority’s obvious desire to reach the opposite conclusion, maj. at 7751, 7759 n.9, we are bound to

assume that the permit requirement has been administered in

a neutral fashion and does not give Seattle Center authorities

undue discretion, as Berger has never contended otherwise.

To me, this makes the case before us materially indistinguishable from these Supreme Court cases. The only significant differences cut sharply in favor of upholding the permit

requirement. First, the rules here are considerably less restrictive. As the majority recognizes, “the permitting schemes at

issue in Cox and Poulos both required applicants to ‘specify

the day and hour’ that they planned to hold their parade or

public meeting.” Maj. at 7760. Here, a single permit entitles

the holder to perform at any time he wishes between 11:00

a.m. and 10:00 p.m., for as long as he wishes, in any of the

designated locations, for an entire year. The majority somehow finds that this weighs against the Center, taking it as

proof that the permits do not “further the government’s interest in coordinating multiple uses of limited public space.” Id.

This is very strange reasoning. If the Center believes that it

doesn’t need a more restrictive permit to serve its ends, who

are we to say that the restrictions are inadequate? The majority’s clumsy effort to distinguish away the Cox line of cases

stands the concept of narrow tailoring on its head. 

The majority also criticizes the permit requirement because,

unlike in Thomas, it’s not limited to performances attracting

a certain minimum audience. Maj. at 7768, 7787. But the

majority overlooks Poulos v. New Hampshire, where the

Court upheld a permit requirement for groups of any size

wishing to hold an “open air public meeting” in a city park.

345 U.S. at 397 n.2, 402-08; see also Cox v. New Hampshire,

312 U.S. at 571-72, 576. Thomas, in turn, relied on Poulos

and Cox. 534 U.S. at 323. 

The majority’s distinction is nonsensical, in any event.

When a permit is required for public meetings, as in Thomas

BERGER v. CITY OF SEATTLE 7805
and the other cases the majority relies on, the organizers can

be expected to know, based on the degree of public interest,

advertising and outreach, how large a group is likely to show

up. The license the Center issues here is quite different: It is

good for an entire year and entitles the bearer to perform hundreds or even thousands of times. The size of the crowd on

any given day, at any particular hour, may be hard to predict,

but it doesn’t matter, as long as the Center reasonably

believes that on some days, at some hours, a sufficiently large

crowd may gather to impair the efficient operation of the Center. 

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. How is anyone to know in

advance? Depending on the performer’s popularity, the day of

the week, the hour of the day and the availability of other

attractions, a larger or smaller crowd may gather. What is the

performer to do, if he doesn’t have a permit? Must he count

the crowd to make sure it doesn’t exceed the limit and ask

some to leave if he realizes there are too many? Should he

stop the performance until the crowd disbands? When dealing

with a performer who may give 20 or 30 performances a day,

20 or 25 days out of every month, using a numerical limit on

the size of the audience, as the majority envisions, just doesn’t

make any sense; it is certainly not constitutionally required.

The city can reasonably presume that when people engage in

activities designed to gather a crowd, they will get a crowd

often enough to render the activity the legitimate object of

regulation. 

The simple fact the majority overlooks is that street performers like Berger are not merely citizens who wish to use

the park as a forum for public expression or religious worship

on an occasional basis; they are operating a business and earning a living from these activities. They are repeat players—a

continuing presence at the Center—taking advantage of the

crowds generated by Seattle Center’s organization and indus7806 BERGER v. CITY OF SEATTLE
try to promote their own economic well-being. To be sure, the

business that these performers engage in does involve communicating with the public, and can be characterized as art or

at least craft, so it deserves First Amendment protection. But

there are many businesses whose object is communicating

with the public: theaters, cinemas, art galleries, record shops,

night clubs, advertising agencies, investment advisors—the

list is long and varied. No one has ever suggested that theaters, say, are exempt from fire laws, building codes, laborrelations regulations, taxes or the multitude of other noncontent related laws that are applicable to any other business.

The First Amendment simply doesn’t sweep so far. See, e.g.,

One World One Family Now v. City & County of Honolulu,

76 F.3d 1009 (9th Cir. 1996) (upholding a ban on sidewalk

sale of message-bearing t-shirts).

Berger and other street performers are actors without a theater, circus performers without a tent. Not having a fixed

facility, they perform in open spaces where people gather in

the expectation that those who watch them will reward them.

And this is not an idle hope: Rewarding street performers

whose act one watches is a bit like tipping at hotels and

restaurants—a social obligation that is not legally enforceable

but many people feel bound to honor.

The commercial aspects of the street performer trade,

which my colleagues overlook, set up the dynamics that have

given Seattle Center cause for concern. A street performer’s

income depends on the crowd he is able to draw, so location

is a very important issue—hence the strife about who gets to

perform at the choicest spots. The economic incentive also

can lead to aggressive solicitation of patrons, and rude

remarks when patrons give what the performer believes is an

insufficient donation. The economic incentive may lead street

performers to find captive audiences—say, people standing in

line—and start performing near them, hoping to guilt them

into making a donation even if they have no particular interest

in the performance. 

BERGER v. CITY OF SEATTLE 7807
Social conventions often create very strong obligations—

such as when one leaves a sizable tip after receiving lousy

table service to avoid an unpleasant reaction from the waiter

—and people standing in line who have had the “benefit” of

a street performance that they did not seek out or enjoy may

feel pressured to cast down a dollar or two, just so others

won’t consider them to be moochers. The patrons may nevertheless feel put upon, and their Center experience may be

tainted by having been buffaloed into this transaction.

The Supreme Court in Summum drew a distinction between

traditional public speakers who, “no matter how long-winded,

eventually come to the end of their remarks,” 129 S. Ct. at

1137, and monuments in public parks, which “endure.” Id.

Because monuments are a permanent fixture of the facility,

they “monopolize the use of the land on which they stand and

interfere permanently with other uses of public space.” Id.

Street performers, like plaintiff here, fall somewhere in

between these two extremes: They do go home at the end of

the day (like occasional public speakers), but they come back

the next day and the day after that, on a permanent or semipermanent basis. Each performance may attract a relatively

small audience compared to a speech or a rally, but each performer will be constantly gathering crowds. A facility like

Seattle Center can’t accommodate an unlimited number of

such performers; if there are too many at the same time, or at

the same location, they begin to “interfere permanently with

other uses of public space.” Id. Cities therefore have a far

greater interest in regulating the activities of permanent street

performers than occasional political or religious speakers.

If, as the Supreme Court has held, municipalities have the

authority to regulate eleemosynary and volunteer activities—

even bible classes—in public spaces, to preserve the safety

and convenience of individuals using the public facility, then

surely they have the authority to regulate street performers,

who are operating small businesses within a complex that the

city maintains and nurtures. My colleagues in the majority

7808 BERGER v. CITY OF SEATTLE
eschew this obvious conclusion by means of two arguments,

neither particularly persuasive. 

First, my colleagues take the view that the permit requirement is invalid because it serves no legitimate purpose, but

they are mistaken, as Judge Smith persuasively demonstrates

in his separate opinion. Smith at 7839-40. I note, to begin

with, that when the Supreme Court has upheld permit requirements, it has not demanded a particularly rigorous, or any,

justification for them, relying instead on the obvious and

common-sense reasons to require a permit. In Cox v. New

Hampshire, the court merely referred to “[t]he obvious advantage of requiring application for a permit” with no suggestion

that this advantage had to be proven up to any degree of certainty. 312 US. at 576. In Poulos and Thomas, the Court made

no reference whatsoever to the efficacy of the permit requirement. In all three cases, the Court’s focus was on whether the

permit was administered in a content-neutral, objective and

non-discriminatory fashion and, having satisfied itself that it

was, the Court did not consider efficacy to be an independent

constitutional requirement. See also Heffron, 452 U.S. at

650-53 (not questioning efficacy of requirement that religious

group operate from a fixed location at state fair).

It’s thus not clear that, when considering a licensing

scheme for holding a public event such as a bible study, performance or parade in a place where there are competing or

inconsistent uses, the licensing authority has to make a very

convincing showing—or any showing at all—that the license

serves the desired purpose. We can assume, as has the

Supreme Court on more than one occasion, that the city

wouldn’t devote the time and resources to administering such

a scheme unless it served to reconcile the various competing

uses.

But if a purpose there need be, it is pretty obvious what it

is here: To deter unruly behavior on the part of street performers by denying them the cover of anonymity, and to give SeatBERGER v. CITY OF SEATTLE 7809
tle Center authorities a means of holding them accountable

when they do misbehave. To start with the obvious, requiring

a street performer to obtain a permit gives Seattle Center

authorities an address where they can write to him if issues

arise; there is such a letter, dated October 3, 2003, in the

record. Without such an address, how do the authorities proceed when they want to give the performer notice of an

alleged violation? How do they notify him of their decision?

Requiring a street performer to have a license and display

a badge, which can be suspended or revoked, also facilitates

the imposition of discipline. If the performer is found guilty

of a violation, the badge can be taken away for the duration

of any suspension, or permanently, and security officers can

then enforce the performance ban by stopping performances

by anyone who does not display a badge. This eliminates the

need to check records or settle disputes about whether or not

a suspension is in effect.

Requiring a badge also makes it more likely that individuals aggrieved by the performer’s misconduct will be willing

and able to report it. The badge informs the public that the

performer can be reported to Seattle Center if he misbehaves.

Members of the public are far likelier to lodge a complaint

against someone with an official badge than someone who

appears to be an independent private party. The badge in this

situation serves the same purpose as badges and name-tags

worn by law enforcement officers, supermarket clerks and

hotel staff—it is a way of making misconduct less likely by

significantly increasing the risk that it will be reported.

The requirement that the performer provide a name and display a badge also avoids confusion and misunderstandings.

My colleagues in the majority may think it’s perfectly OK to

identify performers by such colloquial descriptions as “the

hula-hooping magician” or “the puppet guy,” maj. at 7763

n.14, but that’s no way to run a monorail. What if the puppet

guy is hit with a suspension and claims that the culprit was

7810 BERGER v. CITY OF SEATTLE
really the marionette guy, or that the hula-hooping magician

was really the balloon-animal magician? The complainants in

such cases may be tourists from another state, long gone from

the scene before the dispute can be resolved. A badge with a

name and picture avoids such misunderstandings and makes

it far less likely that street performers will misbehave—

which, of course, is the ultimate objective.

The Center could, as the majority suggests in places, call

the police when street performers seriously misbehave, but it

is hardly conducive to maintaining a pleasant atmosphere in

the park to have the man in the clown suit hauled off in handcuffs. And how many people want to spend their vacation getting into a head-to-head confrontation with someone

obnoxious, or tracking down security personnel and filling out

police reports? Most people who are victims of inappropriate

or rude behavior register their protest with their feet: They

walk away from the place of the unpleasantness and don’t

come back. And they tell their friends and neighbors in Pittsburgh and Wilkes-Barre that this is not where they should

spend their vacation dollars.

And, of course, much inappropriate behavior, like that

plaintiff is accused of, see p.7800 supra, falls far short of a

criminal offense. I doubt that the Center can have someone

arrested for calling a visitor a “M***** F*****”—as plaintiff

is charged with doing. The majority’s suggestion that police

can demand identification and an address from misbehaving

street performers, maj. at 7764, suffers from the same problem: Police can demand identification only when they have

“reasonable suspicion to believe the suspect was involved in

criminal activity,” not when they believe that someone’s been

obnoxious and disruptive. Hiibel v. Sixth Judicial Dist. Ct. of

Nev., 542 U.S. 177, 184 (2004). Police who tried to force Mr.

Berger to identify himself when he throws one of his hissy fits

would soon find themselves as defendants in a civil rights

lawsuit.

BERGER v. CITY OF SEATTLE 7811
And yet, Seattle Center “play[s] an important role in defining the identity that [the] city projects to its own residents and

to the outside world.” Summum, 129 S. Ct. at 1134. Misbehavior by performers who are a constant presence at the Center is a disaster in the making for an enterprise whose mission

it is “to delight and inspire the human spirit in each person

and bring us together as a rich and varied community.”

http://www.seattlecenter.com/information/default.asp. It may

be true that public parks need not reflect “a ‘Truman Show’

version of pristine placidity,” maj. at 7790, but the First

Amendment surely doesn’t require that our parks resemble

The Aristocrats either.

Operating a huge enterprise like Seattle Center, one that

caters to the needs and wants of tens of thousands of visitors

on an average day, is an enormously difficult and complex

task. Maintaining the goodwill of the public and support of

the community over the decades is at the heart of that success.

When the people responsible for that enterprise tell us that a

content-neutral, non-discriminatory permitting requirement

has been effective in solving a serious problem that has been

eroding that goodwill, it takes considerable hubris for judges

to say they know better. 

The second theory under which the majority finds fault

with the permit requirement is the supposed impermissibility

of “single-speaker registration requirements.” Maj. at

7752-57. This is a curious theory, because none of the cases

on which my colleagues rely makes any reference to the number of speakers involved, and certainly none mentions the size

of the group as being dispositive. All of the cases on which

the majority relies were solicitation cases; one can assume

that the group of speakers involved would have been small by

the nature of the activity. But the theories under which the

Court struck down the permit requirements in those cases

were varied and had nothing to do with the size of the group.

In Cantwell v. Connecticut, 310 U.S. 296 (1940), for example, the Court struck down a state statute which forbade the

7812 BERGER v. CITY OF SEATTLE
solicitation of money for religious causes unless the solicitors

obtained a certificate from a government official, who was

required to determine that the cause in question was, indeed,

religious. The Court struck down the requirement because the

statute authorized a government official “to withhold his

approval if he determines that the cause is not a religious one.

Such a censorship of religion as the means of determining its

right to survive is a denial of liberty protected by the First

Amendment . . . .” 310 U.S. at 305. The size of the soliciting

group was not even mentioned; indeed, the Court made it

clear that “general regulation, in the public interest, of solicitation, which does not involve any religious test and does not

unreasonably obstruct or delay the collection of funds, is not

open to any constitutional objection, even though the collection be for a religious purpose.” Id. Cantwell undermines

rather than supports the majority’s theory.

This is true of each of the other cases the majority draws

upon for its theory, including Watchtower Bible & Tract Society of N.Y., Inc. v. Village of Stratton, 536 U.S. 150 (2002),

on which the majority places the heaviest reliance. Watchtower was a case involving door-to-door canvassing by a religious group. In striking down a requirement that the

canvassers first obtain a permit from the town authorities, the

Court pointed to a number of factors, none of which had anything to do with the number of canvassers, among them “the

historical importance of door-to-door canvassing and pamphleteering as vehicles for the dissemination of ideas,” id. at

162; that the canvassers were not engaged in the solicitation

of funds, id. at 165; the legitimate interest of some canvassers

in anonymity, id. at 166; that the advance permit requirement

inhibits some spontaneous speech, id. at 167; and that residents could ward off all canvassers by posting legally

enforceable “no solicitation” signs, which petitioners promised to respect, id. at 168. None of these factors is even

remotely applicable to our case: Balloon animals and magic

tricks don’t feature the dissemination of ideas, street performers do solicit funds, sometimes quite aggressively, and there

BERGER v. CITY OF SEATTLE 7813
is no legally enforceable way for patrons to keep Berger from

trying to lure their children to come watch him or prevent him

from insulting them when they resist. Finally, despite the

majority’s repeated assertions otherwise, maj. at 7754 n.5,

7763-64, street performers have little interest in anonymity.

Hula-hooping magicians and puppeteers are hardly advocates

for “unpopular causes,” Watchtower Bible, 536 U.S. at 167;

they are entertainers, and gaining public recognition will only

help their businesses. Watchtower and our case have about as

much in common as bananas and boomerangs.

The most one can say about the cases that form the backbone of the majority’s analysis is that the Court has been

reluctant to approve restrictions on the rights of individuals

and small groups to engage in discourse with other individuals and small groups—the kind of interactions that always

arise in solicitation, canvassing or hand-billing cases. This is

not really surprising, because individual-to-individual and

small group-to-small group interactions generally do not pose

the sort of problems that time, place and manner rules are

designed to deal with. Moreover, they are very much like the

interactions almost everyone has during the course of his

daily life—striking up conversations with others on the street,

in his neighborhood or in public places. It may thus be fair to

infer a presumption against laws prohibiting such small-group

interactions.

But it is a wholly different matter to derive some sort of

rule that prohibits—or strongly discourages—regulation of

speech by a single individual, regardless of the size of his

expected audience or the disruption he may cause. Nothing in

the Supreme Court’s caselaw supports any such proposition,

and there is much to refute it. Take the following examples,

which strike me as so obvious that no case citation is necessary:

• A municipality prohibits people from falsely yelling fire in a crowded theater. Is there a constitu7814 BERGER v. CITY OF SEATTLE
tional exception for a single individual? I don’t

think so. Why? Because the effect of the single

speaker on the crowd of people thrown into panic

can be disastrous. 

• A famous civil rights leader plans to hold a

speech at the Lincoln Memorial; the speech is

eagerly anticipated and half a million or more

people are expected to attend. According to the

majority’s flawed theory, the city of Washington

could not require the speaker to register in

advance, or give the city notice that a large audience is expected. Indeed, any number of independent single speakers would be entitled to show up

unannounced and give their speeches at the very

same time and place. There’s nothing in the

Supreme Court’s caselaw that remotely supports

that proposition.

• Yo-Yo Ma is probably the greatest cellist of our

time, and a free concert for the benefit of the people of Los Angeles would surely be greeted with

enthusiasm. But if Mr. Ma wanted to set up his

cello in the third lane of the West-bound Santa

Monica Freeway adjacent to the Robertson exit,

I have no doubt that the California Highway

Patrol could engage in prior restraint by preventing him. That Yo-Yo Ma is a single artist of

remarkable talent would have no effect whatsoever on that result.

• Mr. Nez, who lives in Pasadena, wants to hold a

parade celebrating the Festival of Noses. And he

wants to follow the route that is followed every

year by another parade with a very similar name

—starting north on Orange Grove Avenue near

California, then turning east on Colorado for

about 5 miles. Unfortunately for Mr. Nez, no one

BERGER v. CITY OF SEATTLE 7815
else shares his enthusiasm, so he decides to hold

a one-man parade, carrying a giant paper mache

replica of Jimmy Durante’s head. Having read

the majority’s opinion, he believes that he needs

no parade permit since he is, after all, a single

performer. So, about 9 a.m. on January 2, he dons

a top hat and tails, holds high the effigy of The

Schnozz and starts walking north on Orange

Grove straddling the double yellow line. My

guess is that the Pasadena police would pick him

up and give him a jaywalking ticket (or worse)

long before he got to Colorado. His First Amendment defense would get about as far as his

parade.

I could go on, but these “silly” examples, maj. at 7788, are

enough to put to rest the fatuous notion that single speakers

are entitled to favorable treatment under the First Amendment. Rather, the decision always hinges on the interaction

between the speaker and the activities affected by him or his

speech. If you go to the desert, you can shout “fire” as loudly

and as often as you wish. You can bring a thousand friends

with you and all of you can shout “fire” day and night, in unison, in sequence or to the rhythm of Bolero. You can sing

about cesium and recite poems about arson; you can arrange

a parade celebrating fire, or noses or whatever you wish. So

long as there’s no one to be bothered, there’s little the government can or should be able to do to stop you. But if you are

in the city, if you are at a mall, if you are at a stadium where

thousands of people are crowding onto moving escalators,

then we can reasonably expect you to be much more circumspect about what you say and where you say it, because the

effect on others may be disastrous.

Context is everything in First Amendment analysis and the

majority’s single-speaker rule fails because it doesn’t take

context into account. Even if, as the majority suggests in

places, its single-speaker rule would only apply to speakers

7816 BERGER v. CITY OF SEATTLE
who attract audiences of less than 75 or less than 100, maj. at

7766, 7787, any such rigid numerical rule will fail because it

makes no account for the performance’s effect on others. The

performances by Mr. Ma and Mr. Nez, for instance, would be

seriously disruptive whether they gathered a large audience or

no audience at all. In deciding whether Seattle Center can

require advance registration of street performers, it matters

not at all whether they involve a single performer, like plaintiff, two jugglers or twelve lords-a-leaping. What matters is

that street performers are out for donations, and donations

increase with the size of the crowd the performers attract.

Thus, attracting crowds is not merely an unforeseen byproduct of street performing, it is its sine qua non: A street

performer who never gathers an audience would give up the

pursuit very quickly.

Crowds, of course, are worrisome when dealing with large

groups of people moving through a restricted area like Seattle

Center and thus are a legitimate thing for the authorities to be

concerned about. They can also legitimately be concerned

about how performers interact with the crowds they attract,

and the effect they have on the public goodwill which is, after

all, the lifeblood of the Center’s mission. The regulations the

Center put into place to address this problem are sensible and

measured. There is no evidence whatsoever that the rules have

been applied in an oppressive or discriminatory manner, that

they have been enforced against teenagers strumming their

guitars at family picnics, or against people whistling while

they walk, or against political canvassers. 

All of these are figments of the judicial imagination—a fertile imagination, to be sure, but woefully out of touch with the

realities of running a complex enterprise which brings joy to

millions of people a year. By focusing on the largely imaginary First Amendment injuries which might be suffered by

largely imaginary people, my colleagues impair the First

Amendment rights of the millions of actual people who come

to Seattle Center to see, to hear, to learn, to enjoy, without

BERGER v. CITY OF SEATTLE 7817
being subjected to the stress of dealing with overly-aggressive

street performers who shout obscenities and send young children off crying. There are times when the best thing judges

can do is to butt out; this is surely one of them.

GOULD, Circuit Judge, with whom Chief Judge Kozinski and

Judge Tallman join, dissenting:

I dissent from the majority’s invalidation of the permit and

badge requirements, for the reasons stated by my colleague

Chief Judge Kozinski in his dissent. The permit scheme is a

reasonable response to the City of Seattle’s need for order to

maintain the efficacy and desirability of Seattle Center for its

citizenry and visitors. I write separately to explain my disagreement with the majority’s conclusions relating to the

Seattle Center Rules regarding required performance locations, the allowing of only passive solicitation, and the preclusion of speech activities including performances within thirty

feet of captive audiences engaging in other events at Seattle

Center. These Rules are reasonable time, place, and manner

restrictions on speech because they are content-neutral restrictions that are narrowly tailored and leave open ample alternative means of communication. I conclude that separate

attention to each of these restraints is warranted. 

In Section I, I first comment on the substantial value of

street performance, while acknowledging the City’s superordinate need to regulate it in the interest of order. In Section

II, I explain why the performance location rule is a reasonable

time, place, and manner restriction that should be upheld and

why Berger’s evidence stating otherwise is insufficient to preclude summary judgment in favor of the City. In Section III,

I explain why the passive solicitation rule is also a reasonable

restraint on the manner of solicitation and should be upheld.

In Section IV, I explain why Seattle’s rule protecting captive

7818 BERGER v. CITY OF SEATTLE
audiences should also be upheld in light of the special multipurpose nature of Seattle Center. 

By invalidating the City of Seattle’s reasonable time, place,

and manner restraints on solicitation and performances to captive audiences, and by generating a fictitious fact issue on performance location, the majority utterly fails to give due

weight to the valid interests of the City of Seattle in protecting

a smoothly running Seattle Center. These include the City’s

interests in “traffic control” when competing street performers

want to use the same place for their expression, and the regulation of street performers who communicate at Seattle Center

in circumstances that may interfere with the Center’s other

activities. See Thomas I. Emerson, Toward a General Theory

of the First Amendment, 72 YALE L.J. 877, 946-47 (1963)

(stating that by regulating “traffic control” a government can

“maintain orderly expression and thereby promote freedom of

expression”). The majority’s holding impairs the value of

Seattle Center to Seattle’s residents, to visitors from worldwide locations, and to the organizations that make Seattle

Center their home. Its holding is not needed to protect the free

and full exchange of ideas that helps to keep our society vital.

Therefore, I respectfully dissent, and elaborate my views.

I

The value of the speech from street performers impacted by

the City’s permit scheme is significant, but Rules F.1 and F.2

are nonetheless constitutional because of the need of the City

to maintain order at this gem of a civic attraction. The City’s

interests are well articulated by Chief Judge Kozinski, but I

will expand on the speech value of the street performances:

Speech in the form of music, drama, or performance has

played a vital role in our society and deserves First Amendment protection. Some of our culture’s most valued written

works originated as spoken performances. For example, what

we know now as Homer’s Iliad and Odyssey likely were originally preserved through verbal performances. See Mark W.

BERGER v. CITY OF SEATTLE 7819
Edward, Homer and the Oral Tradition, 18/1 ORAL TRADITION

65 (2003) (“By now the facts about the nature of the oral features . . . in Homer are well known and (on the whole) not

controversial.”); see generally Bruce Louden, THE ILIAD:

STRUCTURE, MYTH and MEANING (Johns Hopkins University

Press 1996). Music likewise has helped to develop our Western civilization. See, e.g., Paul Henry Lang, MUSIC IN

WESTERN CIVILIZATION xix (W.W. Norton & Co. 1997)

(“Every civilization is a synthesis of man’s conquest of life.

Art is the ultimate symbol of this conquest, the utmost unity

man can achieve.”). Even if our society today does not always

hold street performers in the highest of esteem, these performers continue the tradition of transmitting culture, as done by

the traveling minstrels, talebearers, and acting troupes that

have helped to develop what we consider our Western culture.

It would be easy to underestimate the value provided by these

performers, or the accompanying need for First Amendment

protection, if we only looked at a single performer and especially if we had little affinity for that person’s performance.

However, that such performances are possible in the aggregate bestows value on a society.

The City’s permit system and related regulatory restraints

may require some individuals wishing to express themselves

through spontaneous performance to wait until they have

gained a permit and channeled their performance into a permitted location. It is true that the Supreme Court, while

reviewing a restraint on private solicitation, has criticized a

permit requirement in part because “a significant amount of

spontaneous speech” was “effectively banned” by that

requirement. Watchtower Bible & Tract Soc’y of N.Y., Inc. v.

Vill. of Stratton, 536 U.S. 150, 167 (2002). It might also be

conceded that delaying speech takes some toll on the speaker.

See Vincent Blasi, Toward a Theory of Prior Restraint: The

Central Linkage, 66 MINN. L. REV. 11, 82 (1981) (“[E]ven

short delays take from speakers the power to determine precisely when to disseminate their communications. When government possesses the power to delay communications that it

7820 BERGER v. CITY OF SEATTLE
cannot suppress, speakers cannot be said truly to control, in

the sense required for autonomy, their own communicative

endeavors.”). Nonetheless, the Supreme Court has upheld permit requirements that seek to regulate traffic control and

maintain order. See Thomas v. Chi. Park Dist., 534 U.S. 316

(2002) (upholding permit requirement for large events in public parks); Cox v. New Hampshire, 312 U.S. 569 (1941)

(upholding permit requirement for parades on public streets).

Every permit requirement deters some spontaneous speech.

That the Supreme Court has routinely allowed permit schemes

outside of the solicitation and small-group interaction contexts shows that a harm to spontaneous speech is not enough

to render a permit requirement unconstitutional. Wandering

musicians, poets, actors, or other street performers who come

to Seattle and wish to perform a protest song or reading or

drama can be required to delay their speech until they comply

with the reasonable rules that the City of Seattle has established for public performance in its important Seattle Center

venue.

The value to society of informal speech presented through

performance of music, poetry, and drama is great. It can keep

us alert and open to societal criticisms of practices that require

change. At the same time, for the reasons well stated by Chief

Judge Kozinski, the need for and value of a permitting system

regulating such speakers is superordinate in this context

because of the unique nature of Seattle Center. Indeed, the

speakers themselves benefit from the maintenance of an

orderly system that deters interference with their performances and disputes over desirable performing locations. It

would be nice to think that all of the important interests of the

City of Seattle can be accommodated by reasonable time,

place, and manner restrictions, but it is a reckless gamble to

so conclude and I cannot say that the City should not rationally be able to protect itself, and its citizens and visitors,

through the permit process. Unless and until the Supreme

Court stands opposed to such permitting for such a unique

BERGER v. CITY OF SEATTLE 7821
venue, I conclude that a permit process should be within the

City’s arsenal of tools for managing order at Seattle Center.

II

I next address the performance location rule, Seattle Center

Rule F.5, which I view as a reasonable time, place, and manner restraint on which the majority’s analysis goes astray. As

the Supreme Court declared in Ward v. Rock Against Racism,

the government may impose reasonable time, place, and manner restrictions on speech. These restrictions must be “justified without reference to the content of the regulated speech.”

They must be “narrowly tailored to serve a significant governmental interest.” And they must “leave open ample alternative

channels for communication.” Ward, 491 U.S. 781, 791

(1989). For the performance location rule, the key issues arising under this formulation of doctrine are whether the

restraint permits sufficient alternate means of communication,

and whether it is narrowly tailored to meet its ends without

gratuitously impeding speech. 

Rule F.5 is constitutional. If it were to decide otherwise, the

majority would impose an improvident burden on cities seeking to regulate speech locations in the future. It would go far

to read “place” out of the general accommodation for reasonable time, place, and manner restrictions. What we should be

asking ourselves here are fundamental questions about how

Rule F.5 affects speech. It is, in my view, a paradigm restraint

on location. It funnels performance speech into sixteen locations near the most popular Seattle Center attractions, where

the performers will be readily visible but should not impair

Seattle Center’s ability to welcome guests, both resident and

tourist, who want to sample its attractions. The performance

location rule does not in any way say what performers can or

cannot say or do, it merely ensures they will present their

speech in locations that do not unduly impede the commerce

of the City. Thus alternative means of communication are

ample and secured. At the same time, I conclude the restraint

7822 BERGER v. CITY OF SEATTLE
is sufficiently and narrowly tailored. It does not gratuitously

impede any speech, it just channels it to a convenient place to

accommodate both the speaker’s interest and the interests of

Seattle Center patrons. What is wrong with this? Nothing,

under any balanced First Amendment analysis.

The City has established that without the performance location rule there would be a likelihood of conflict and chaos that

will interfere with Seattle Center’s important functions. The

undisputed evidence in the record shows that before the location restrictions were imposed street performers often set up

in close proximity to one another, leading to territorial disputes and altercations. Street performers also set up in locations that could not accommodate the gathering audience or

that blocked pedestrian access. The City received weekly

complaints about pedestrian access problems. This evidence

satisfies our First Amendment requirement “that municipalities provide tangible evidence that speech-restrictive regulations are necessary to advance the proffered interest in public

safety.” Menotti v. City of Seattle, 409 F.3d 1113, 1131 (9th

Cir. 2005) (quotation omitted). The performance location rule

would help eliminate confrontations between street performers over location and would ensure that pedestrian walkways

remain clear.1 Cf. Cox v. Louisiana, 379 U.S. 536, 554-55

(1965) (stating that “[g]overnmental authorities have the duty

and responsibility to keep their streets open and available for

movement” and that “[a] restriction in that relation, designed

to promote the public convenience in the interest of all, and

not susceptible to abuses of discriminatory application, cannot

1Thus the performance location rule serves both of the traffic control

interests identified by Professor Emerson. Emerson identifies two cases in

which the government has a legitimate interest in traffic control. One situation occurs “where two or more groups desire to hold a parade, demonstration or meeting in the same place,” and the other “becomes necessary

in situations where a group wishes to engage in some form of communication at a place which will interfere with the normal flow of traffic or the

activities of other persons engaged in other affairs.” See Emerson, 72

YALE L.J. at 947. 

BERGER v. CITY OF SEATTLE 7823
be disregarded by the attempted exercise of some civil right

which, in other circumstances, would be entitled to protection”). Accordingly, the Rule meets the Supreme Court’s narrow tailoring requirement that a “regulation promotes a

substantial government interest that would be achieved less

effectively absent the regulation.” Ward, 491 U.S. at 799

(quoting United States v. Albertini, 472 U.S. 675, 689 (1985)).2

Contrary to the majority’s view that there are unresolved

fact issues on this matter, the City has shown that the performance location rule provides ample alternative channels for

communication. All that is needed to satisfy the “ample alternatives” test is “that the government refrain from denying a

reasonable opportunity for communication.” Menotti, 409

F.3d at 1141 (quotation omitted). The City has met its burden.

The record includes a map of the performance locations,

which shows that the locations are adjacent to major pedestrian thoroughfares and are situated near all of the most popular Seattle Center attractions, including the Space Needle,

KeyArena, Pacific Science Center, and the Experience Music

Project. In response, Berger makes two unsupported statements that some locations are far from walkways or are occasionally blocked by equipment. Berger does not identify the

specific locations to which he objects, and he does not

directly dispute the authenticity of the City’s map. “A sum2

In its attempt to avoid summary judgment favoring the City on this

Rule, the majority adopts a counterintuitive conception of what realistically is meant by the term “street performer.” As the majority sees it, this

term would include Gene Kelly Singing in the Rain or any person who

whistled while they worked or whistled while they walked. I agree with

Chief Judge Kozinski that there is no realistic danger the City will interpret its definition so broadly and that the City’s limiting construction cures

any perceived danger. The record generated in the process of adopting the

Rules shows what the City was aiming at, which certainly wasn’t an

impromptu version of Singing in the Rain or the casual whistler. The language used by the City in Rule F.5 does not reasonably contemplate such

a broad definition, and so the majority’s argument about an overbroad and

thus constitutionally invalid definition of “street performer” should not be

credited. 

7824 BERGER v. CITY OF SEATTLE
mary judgment motion cannot be defeated by relying solely

on conclusory allegations unsupported by factual data,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989), but that is

precisely all that Berger provides. The majority nonetheless

recites that Berger’s conclusory evidence is sufficient to

defeat summary judgment and even creates a reasonable inference of unconstitutionality. Its conclusion is inconsistent with

our summary judgment standard as it has been explained by

the United States Supreme Court and elaborated in our precedent. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 880

(1990) (stating that although Fed. R. Civ. P. 56(e) allows a

party to defeat summary judgment through affidavits that

establish a genuine factual issue, “[t]he object of this provision is not to replace conclusory allegations of the complaint

or answer with conclusory allegations of an affidavit.”).

Rule F.5 allows for ample alternative channels of communication even if we accept Berger’s factual allegations as true.

I agree with the portion of Judge N.R. Smith’s analysis that

explains why under our precedent and that of the Supreme

Court, Berger’s conclusory allegations do not create any

material fact dispute that would preclude summary judgment

in favor of the City. The City presented uncontested evidence

that even at peak times fewer than half of the designated performance locations are in use. Therefore, even if some of the

locations are undesirable, Berger has provided no evidence

that the location restrictions preclude the entire medium of

street performance or deny street performers a “reasonable

opportunity for communication.” Menotti, 409 F.3d at 1141

(quotation omitted); see also Colacurcio v. City of Kent, 163

F.3d 545, 555 (9th Cir. 1998) (“The Supreme Court generally

will not strike down a governmental action for failure to leave

open ample alternative channels of communication unless the

government enactment will foreclose an entire medium of

public expression across the landscape of a particular community or setting.”). I conclude that the City is entitled to a summary judgment upholding the performance location rule. The

BERGER v. CITY OF SEATTLE 7825
majority’s remand for factual determination on alternative

channels of communications is unnecessary and incorrect.

III

I next address the passive solicitation rule. Rule F.3.a provides that no street performer “shall actively solicit donations,

for example by live or recorded word of mouth, gesture,

mechanical devices, or second parties.” The Rule does permit

passive solicitation by allowing performers to provide a

receptacle for donations and display “a written sign that

informs the public that such donations are sought.” By misconstruing the passive solicitation rule as being “contentbased,” the majority again misapplies the general rule permitting reasonable, time, place, and manner restrictions, this time

reading “manner” out of the permitted restraints.

The ban on active solicitation is neutral in content. Applying the Supreme Court’s “principal inquiry in determining

content neutrality,” I conclude that the City did not adopt its

passive solicitation rule “because of disagreement with the

message [soliciting speech] conveys.” Ward, 491 U.S. at 791.

The Rule does not depend on the content of the solicitation,

there are no favored organizations or persons—no street performer advancing any cause can solicit funds from Seattle

Center patrons in an active way, none can demand money verbally. Street performers cannot implore people to give them

money, but they can post a passive sign alerting their listeners

that they would appreciate a contribution, and providing a

proper receptacle. In sum, there is no evidence that the City

disagrees with the views of Seattle Center street performers,

nor is the City stifling messages of solicitation completely. If

this is not a reasonable manner restriction, then probably

nothing is.

The majority argues that the passive solicitation rule is

based on content because it restricts a particular set of messages, namely requests for donations. But under this analysis

7826 BERGER v. CITY OF SEATTLE
any regulation of solicitation would be a content-based

restraint because such a rule would have to differentiate

words that solicit from ordinary speech. The majority’s analysis places it in tension, if not explicit conflict, with United

States Supreme Court authority, which has held that solicitation restrictions may be content-neutral restraints. See United

States v. Kokinda, 497 U.S. 720, 736 (1990) (plurality opinion) (upholding ban on in-person solicitations and calling “the

inherent nature of solicitation itself, a content-neutral

ground”); Heffron v. Int’l Soc’y for Krishna Consciousness,

Inc., 452 U.S. 640, 648-49 (1981) (stating that restriction on

solicitation locations in public fairgrounds is content-neutral

because it “applies evenhandedly to all who wish to . . . solicit

funds”). Under the majority’s analysis, however, the Kokinda

and Heffron restrictions would be content-based restraints

because they would, as the majority states, restrict individuals

“from communicating a particular set of messages—requests

for donations.” The majority’s analysis eliminating any possibility of a reasonable restraint on manner of solicitation is difficult to reconcile with Supreme Court precedent that has

upheld such restrictions.

Our decision in ACORN v. City of Phoenix, 798 F.2d 1260

(9th Cir. 1986), also supports a holding that the passive solicitation rule is content-neutral. In ACORN we said that an ordinance prohibiting solicitation of vehicle occupants is contentneutral because it “does not single out any group or the content of any speech. The ordinance applies evenhandedly to

every organization or individual, regardless of viewpoint,

which would desire to solicit contributions, business, or

employment from the occupants of vehicles traveling on

Phoenix streets.” Id. at 1267 (citing Heffron, 452 U.S. at

648-49). The majority distinguishes ACORN because it sees

no indication that the ordinance in ACORN forbade asking

drivers or passengers to contribute by mail, as opposed to

contributing on the spot. However, the majority cites no language in ACORN indicating that the ordinance at issue prohibited only the immediate physical exchange of money. The

BERGER v. CITY OF SEATTLE 7827
text of the ordinance states only that a person may not “solicit,

or attempt to solicit, employment, business or contributions

from the occupants of any vehicle.” Id. at 1262.

The majority’s reasoning for deciding that the City’s passive solicitation rule is content-specific would have required

a different result in ACORN because the ordinance in that case

restricts people from “communicating a particular set of

messages—requests for donations,” while allowing the same

individuals to approach stopped drivers and communicate

other ideas. The majority does not claim to overrule ACORN,

and thus in my view ACORN compels us to hold the City’s

passive solicitation rule content-neutral because it also applies

evenhandedly to anyone who solicits by certain methods. 

Rule F.3.a is constitutional because it is content-neutral, is

narrowly tailored, and allows for ample alternative channels

of communication. To hold otherwise, as does the majority,

is in substance to say there cannot be a reasonable regulation

of manner of solicitation, and in my view that position cannot

be correct.

IV 

Finally, I address Rule G.4, the captive audience rule. I

conclude that a close case is presented on this rule but that it

should nonetheless be upheld because of the special nature of

Seattle Center. The Supreme Court has stated that the government may “shield the public from some kinds of speech on

the ground that they are more offensive than others” when a

“degree of captivity makes it impractical for the unwilling

viewer or auditor to avoid exposure.” Erznoznik v. City of

Jacksonville, 422 U.S. 205, 209 (1975). We have overturned

rules restricting speech near captive audiences when we have

determined that the audience in question was not captive at

all. See Kuba v. 1-A Agric. Ass’n, 387 F.3d 850, 861 n.10 (9th

Cir. 2004).3 But until now we have never held that a captive

3

In Kuba we did not, as the majority suggests, hold that all patrons of

a place of public entertainment could not be a captive audience unless they

7828 BERGER v. CITY OF SEATTLE
audience could never exist in a public park. The majority’s

blanket rule will preclude courts from addressing an audience’s possible captive state on a fact-specific basis. Moreover, the majority’s approach is singularly inappropriate when

we consider the unique nature of Seattle Center, containing

many outstanding venues for entertainment, theater, ballet,

sports, and dining.

Seattle Center is an unusual public complex that contains

many captive audiences who are observing or awaiting the

major events that are presented at McCaw Hall, KeyArena, or

the Bagley-Wright Theater, waiting in line for rides at the Fun

Forest Amusement Park, or simply attending other Center

attractions, including the popular Center House restaurant

venues. Seattle Center also hosts special events such as Bite

of Seattle, which in theory may be impacted if the majority

treatment of the Rules at issue here is sustained. The very viability of Seattle Center, the ability of Seattle residents and

tourists to take advantage of the unique opportunities showcased there, in my view is placed in danger if the City is not

permitted fairly and effectively to regulate the conduct of all

those who may interfere with Seattle Center events. The fair

regulation of street performer speech does not entirely cancel

the speech out, but rather subjects it to a regime that can coexist with Seattle Center’s other activities in a way that does not

unduly damage its commerce and value to the City.

The majority is correct that Seattle Center is a public

forum, and this categorization affects our choice of precedents

to apply. But there are important differences between Seattle

Center and the typical open-air public park. Seattle Center is

were particularly vulnerable. Instead, we emphasized that the highly

mobile individuals in Kuba were not “constricted” to a particular location

while they walked towards a concert venue. Kuba, 387 F.3d at 861 n.10.

Visitors to Seattle Center must keep their place in line in order to gain

entry to limited-access buildings or events. 

BERGER v. CITY OF SEATTLE 7829
a unique urban center defined not solely by trees and open

fields but also by museums, theaters, concert halls, amusement rides, and other special attractions for the City and its

visitors. Visitors pay considerable sums to see these attractions, and they must often wait in line before attending.

Unlike in a traditional public park, these patrons, should they

be confronted by unwelcome or harassing performances, cannot just walk away to the next available shade tree. Rather, to

avoid the nuisance these patrons must give up their place in

line, potentially forfeiting their ability to enjoy the Seattle

Center event they paid to attend. The City has a significant

governmental interest in ensuring that these patrons have an

enjoyable experience, so that Seattle Center and the City as a

whole may continue to be a desirable and commercially profitable destination. See Thomas, 534 U.S. at 323 (“Regulations

of the use of a public forum that ensure the safety and convenience of the people are not ‘inconsistent with civil liberties

but . . . [are] one of the means of safeguarding the good order

upon which [civil liberties] ultimately depend.” (quoting Cox

v. New Hampshire, 312 U.S. at 574)).

The captive audience rule applies to “speech activities”

rather than to only street performers. The majority imagines

that the City will enforce the captive audience rule against

those who make “the mildest remark.” But, as Chief Judge

Kozinski aptly explains in his dissent, there is no indication

that the City has or ever will enforce this Rule in such a draconian manner. See Washington State Grange v. Washington

State Republican Party, 128 S.Ct. 1184, 1190 (2008) (“In

determining whether a law is facially invalid, we must be

careful not to go beyond the statute’s facial requirements and

speculate about ‘hypothetical’ or ‘imaginary’ cases.”). The

majority relies on Board of Airport Commissioners of the City

of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574-75

(1987), to say that overbroad regulations are unconstitutional.

But there the Supreme Court invalidated the ordinance after

concluding that there was no feasible limiting construction.

Id. at 575-76. However, the majority has engaged in no such

7830 BERGER v. CITY OF SEATTLE
analysis of the captive audience rule, and therefore its overbreadth analysis is incomplete. See Broadrick v. Oklahoma,

413 U.S. 601, 613 (1973) (“Facial overbreadth has not been

invoked when a limiting construction has been or could be

placed on the challenged [rule].”).4

It is unrealistic and unwise to expect patrons paying to visit

an attraction to give up their right to access the attraction

when confronted with unwelcome behavior. Before instituting

the captive audience rule, the city received weekly complaints

about street performers harassing individuals in a captive

audience. The captive audience rule is a reasonable method of

achieving the City’s legitimate interest in the safety and convenience of Seattle Center patrons. It leaves open alternative

channels of communication—in a designated location for

street performers and anywhere away from a captive audience

for everyone else. By contrast, the majority’s incorrect analysis echoes its earlier errors by reading “place” and “manner”

out of the general rule that allows reasonable time, place, and

manner restrictions. I would hold that the captive audience

rule is a reasonable restriction on speech.

4The majority claims that any bias in favor of commercial over noncommercial speech is by itself cause to invalidate a regulation. However, the

majority’s precedential support is limited to regulations on signs or billboards. E.g., G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064,

1081 (9th Cir. 2006) (“[A]n ordinance is invalid if it imposes greater

restrictions on noncommercial than on commercial billboards or regulates

noncommercial billboards based on their content.” (quotation omitted)).

The majority’s analysis on this point proceeds from the fact that although

the captive audience rule applies to “both political speech and commercial

speech,” it does not apply to “licensed concessionaires,” such as food and

drink vendors. Licensed concessionaires, however, are subject to a myriad

of other restrictions not applicable to noncommercial speakers. Moreover,

Seattle Center patrons waiting in line might welcome an opportunity to

purchase food or drink. 

BERGER v. CITY OF SEATTLE 7831
V

Accordingly, I would reverse the district court’s rejection

of the permit and badge requirements for the reasons aptly

stated by Chief Judge Kozinski in his dissent, and also would

reverse the district court’s decisions declaring unconstitutional Rule F.5, Rule F.3.a, and Rule G.4, respectively governing performance locations, passive solicitation, and captive

audiences. The latter three Rules are reasonable time, place,

and manner restrictions that allow for ample alternative channels of communication. They are justified by the City’s legitimate interest in protecting the safety and desirability of

Seattle Center as a major tourist draw and a wholesome venue

for Seattle’s citizens, and if the Rules are followed they do not

pose a significant threat to the exchange of speech and ideas.

Although I recognize a significant value to speech in street

performance, the majority’s elimination of the City’s permit

scheme and the other regulatory rules adds only a negligible

marginal speech value, and this at the cost of public order.

The stakes for the City of Seattle in maintaining order at Seattle Center are high, because this is a prerequisite to the full

enjoyment of Seattle Center by Seattle’s residents and visitors

who together make up the millions of annual users of Seattle

Center. I respectfully dissent from the majority’s invalidation

of the permit requirement and Rules governing passive solicitation and presentation near captive audiences, and from the

majority’s remand on the Rule governing location of performance. 

N.R. SMITH, Circuit Judge, concurring in part and dissenting

in part, with whom Chief Judge KOZINSKI joins in Parts III

and IV, with the exception of the first and last paragraphs of

Part IV:

Because our precedent forces me to treat the Seattle Center

as a traditional public forum, I agree that the City of Seattle’s

7832 BERGER v. CITY OF SEATTLE
permitting requirements and ban on active solicitation for

street performers at the Seattle Center are facially unconstitutional. I also agree with the majority’s invalidation of the

City’s captive audience rule. However, the City’s performance location rule is constitutionally valid. Therefore, I join

Parts I, II, III, V, and VI of the majority opinion. 

I write separately, because (1) the characterization of the

Seattle Center as a public forum is essential to this decision;

(2) although the permitting scheme is not narrowly tailored,

it relates to and meaningfully promotes the City’s legitimate

interests; (3) the City has met its burden to show that the performance location rule is a constitutionally reasonable time,

place, and manner restriction; and (4) while the City’s active

solicitation rule is not content-neutral, the majority’s analysis

seems to hold that any restriction on solicitation is necessarily

content-based.

I

We are constrained to view the City’s rules regulating

speech in the Seattle Center through the lens of the Supreme

Court’s forum analysis. See Greer v. Spock, 424 U.S. 828,

836 (1976) (adopting a forum analysis as a means of determining whether the government’s interest in limiting use of

its property outweighs the interest of others wishing to use the

property for other purposes). Our conclusion as to the nature

of the forum in which the regulations apply not only informs

our analysis but largely shapes the outcome, “because the

extent to which the Government may limit [speech] depends

on whether the forum is public or nonpublic.” Cornelius v.

NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 797 (1985).

Therefore, the disposition of this case hinges almost entirely

on whether we characterize the Seattle Center as a traditional

public forum. 

The majority states, without much analysis, that the record

supports characterizing the Seattle Center as a traditional pubBERGER v. CITY OF SEATTLE 7833
lic forum. I agree. However, given the significance of the

majority’s holding and the fact that the majority strikes down

most of the City’s challenged rules as facially unconstitutional, we should not fail to fully consider the nature of the

forum at the Seattle Center.

There is no contention that the Seattle Center is a nonpublic

forum.1 The record plainly shows that the Center is publicly

owned, free and open to the public, and available as a forum

for public communication. Yet a determination of the precise

type of public forum is still necessary to guide our analysis.

If, as the City argued before the district court, the Seattle

Center is a “limited public forum,” our review is somewhat

lenient. A limited public forum is considered “a type of nonpublic forum that the government has intentionally opened to

certain groups or to certain topics.” Cogswell v. City of Seattle, 347 F.3d 809, 814 (9th Cir. 2003) (citations and internal

quotation marks omitted). Under this analysis, the City’s regulations would be upheld “as long as (1) the restriction does

not discriminate according to the viewpoint of the speaker,

and (2) the restriction is reasonable.” Id. at 814 (citations

omitted). Nothing in the record indicates that the City has limited the use of the Seattle Center to certain groups or dedicated it solely to the discussion of certain subjects. Further,

the record suggests that the Seattle Center has historically

been a public forum. Therefore, the Center is not a limited

public forum.

If the Seattle Center is a traditional public forum, “the government may not prohibit all communicative activity” and, to

1A nonpublic forum is a place that does not, by tradition or designation,

serve as a forum for public communication; thus, content-based restrictions in nonpublic fora need only be “reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s

view.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37,

46 (1983). 

7834 BERGER v. CITY OF SEATTLE
enforce any content-based exclusion, the state “must show

that its regulation is necessary to serve a compelling state

interest and that it is narrowly drawn to achieve that end.” See

Perry Educ. Ass’n, 460 U.S. at 45 (citing Carey v. Brown, 447

U.S. 455, 461 (1980)). Reasonable time, place, and manner

restrictions can be imposed if they are “content-neutral, are

narrowly tailored to serve a significant government interest,

and leave open ample alternative channels of communication.” Id. (citations omitted).2

 Quintessential public fora

include “streets and parks which ‘have immemorially been

held in trust for the use of the public, and, time out of mind,

have been used for purposes of assembly, communicating

thoughts between citizens, and discussing public questions.’ ”

Id. (quoting Hague v. CIO, 307 U.S. 496, 515 (1939)). 

To determine whether a venue is a traditional public forum,

courts have considered a number of factors, including (1) the

compatibility of the dedicated uses of the forum with expressive activity; (2) whether a speaker has a reasonable expectation that their speech will be protected in the forum; (3) the

historic use of the forum; (4) the current use of the forum; (5)

whether the public has had free access to the forum; (6)

whether the forum is a public thoroughfare; (7) the value of

the area as an expressive locale; (8) the government’s interest

in commercial revenues; (9) any purpose for which the land

may have been dedicated and the consistency of that use with

free speech. See ACLU of Nevada v. City of Las Vegas (ACLU

2

If the Seattle Center were a “designated public forum,” our analysis

would be the same, because the Center continues to be open to the public.

Public property, that is not traditionally a public forum, may nonetheless

be “opened for use by the public as a place for expressive activity.” Perry

Educ. Ass’n, 460 U.S. at 45. In such a “designated public forum,” while

the state is “not required to indefinitely retain the open character of the

[forum], as long as it does, it is bound by the same standards as apply in

a traditional public forum.” Id. at 46. A designated public forum includes

“a place or channel of communication for use by the public at large for

assembly and speech, for use by certain speakers, or for the discussion of

certain subjects.” Id. (citing Cornelius, 473 U.S. at 802). 

BERGER v. CITY OF SEATTLE 7835
I), 333 F.3d 1092, 1100 & n.7 (9th Cir. 2003) (citations omitted) (collecting cases describing factors that courts have

applied to determine the nature of the forum).

Our case law emphasizes three factors in determining the

nature of the forum: “1) the actual use and purposes of the

property, particularly status as a public thoroughfare and

availability of free public access to the area . . . ; 2) the area’s

physical characteristics, including its location and the existence of clear boundaries delimiting the area . . . ; and 3) traditional or historic use of both the property in question and

other similar properties. . . .” Id. at 1100-01 (citations omitted). 

A reasonable application of these factors to the facts in this

record confirms the majority’s characterization of the Seattle

Center as a traditional public forum. The record shows that

the Center is free and open to the public. It is a gathering

place for cultural and political rallies. It hosts formal events,

including concerts, plays, ballets, athletic events, and other

cultural activities. It is a forum for countless informal gatherings every day as thousands of people frequent the Center to

“congregate on the sidewalks and parks that are open to the

public.” With more than ten million visitors a year, the current

use and purpose of the facility is unavoidably public. The

Center’s own literature characterize the Seattle Center as “one

of the nation’s most extraordinary urban parks and entertainment centers . . . . a social and cultural gathering place for

people around the world . . . . [a] host to remarkable arts, cultural, educational and community programs and international

festivals . . . . [and] a gathering place and public space open

to everyone [and] reflective of the Northwest’s diversity and

alive with innovation . . . .” 

The Center’s physical characteristics and location also support the conclusion that the Center is a traditional public

forum. It is publicly owned and centrally located in the heart

of Seattle. Of the eighty-seven acres, twenty-three are open

7836 BERGER v. CITY OF SEATTLE
spaces and plazas with numerous walkways and access points

to the downtown area and surrounding neighborhoods. 

Further, the traditional and historic uses of the land also

supports its designation as a traditional public forum. When

the land was dedicated to the City over one hundred years

ago, it was dedicated for “the use of the public forever.”

Nearly fifty years ago, the Seattle Center was home to the

1962 World’s Fair, and it has continued to welcome the public ever since.

I also note that, given the express purpose of the Seattle

Center, the forum is also clearly compatible with expressive

activity. Based on the Center’s mission and history as a gathering place for cultural, social, political, and artistic expression, patrons of the Center could reasonably expect that their

speech would be protected. The Center is also clearly a pedestrian thoroughfare for the ten million people who visit the

center each year, and the Center has obvious value as an

expressive locale. While the City no doubt has an interest in

commercial revenues, the City’s interests and the stated purposes of the Center are not inconsistent with free speech.

I acknowledge that the Seattle Center is not the average

public park. It is a dynamic and complex evolution of public

space, ripe with modern innovation and offering the public a

wealth of educational, social, cultural, and commercial opportunity. The City’s challenge is to balance the competing uses

and manage the Center in a way that fosters mutual enjoyment

of these multiple uses. This is no small task. Yet, regardless

of the novel attributes of Seattle’s “most extraordinary urban

park,” the Seattle Center remains a traditional public forum

and the City’s regulation of speech “is subject to the highest

scrutiny.” Int’l Soc’y for Krishna Consciousness, Inc. v. Lee

(Lee), 505 U.S. 672, 678 (1992).

II

The City’s permitting scheme is not a valid time, place, or

manner regulation, because it “burden[s] substantially more

BERGER v. CITY OF SEATTLE 7837
speech than is necessary to further the government’s legitimate interests.” Ward v. Rock Against Racism, 491 U.S. 781,

799 (1989). The City’s goal is to promote the safety and convenience of the public by regulating the conduct and location

of those who (1) regularly attract crowds when performing in

the Seattle Center and (2) who are overly aggressive, abusive,

or harassing when soliciting donations from those who pass

by. The City’s interest is both significant and legitimate. Yet,

the broad brush of the permit requirement, on its face, sweeps

within its prohibition not only the problematic aggressive

behavior of regular street performers, but also any spontaneous or informal artistic expression by anyone. “Government

may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance

its goals.” Id. at 799-800 (citing Frisby v. Schultz, 487 U.S.

474, 485 (1988)). For those wishing to comply with the law,

the prior restraint of the permit requirement would inevitably

result in delays, deterring and effectively banning a significant amount of protected expression. See Grossman v. City of

Portland, 33 F.3d 1200, 1206 (9th Cir. 1994) (the delay

caused by complying with a permitting procedure prevents

immediate response to immediate issues and can deter or even

preclude immediate responses to late-breaking events) (citations omitted). Because the rule would burden all artistic

expression and reach substantially more individuals than the

few problem street performers, it is not narrowly tailored. See

Frisby, 487 U.S. at 485. 

Additionally, while a permitting scheme might be justified

for large groups, there is nothing to suggest that the City’s

interest is sufficient to justify the prior restraint of a singleperformer in this public forum. See Grossman, 33 F.3d at

1206 (permit requirement was unconstitutional where it could

apply to “the actions of single protestors”); Rosen v. Port of

Portland, 641 F.2d 1243, 1247-48 (9th Cir. 1981) (same).

Because (1) prior restraints are disfavored and (2) this prior

restraint is targeted at individual speakers, the permit requirement must be found unconstitutional, if the state could

7838 BERGER v. CITY OF SEATTLE
achieve its purported goals in a less restrictive manner. Even

if the permit requirement were more efficient in preventing

the evils associated with the street performers, punishment of

actual wrongdoers could achieve the City’s interests without

burdening all forms of artistic expression with the prior

restraint. See, e.g., Riley v. Nat’l Fed’n of the Blind of N.C.,

Inc., 487 U.S. 781, 795 (1988) (enforcement of antifraud laws

sufficient to protect citizens from possible fraud resulting

from fundraising solicitations). As the majority illustrates,

there are also alternative means of coordinating multiple uses

of the Seattle Center, such as reasonable time and place

restrictions, without requiring permits for all artistic expression. 

With regard to the permitting scheme, I disagree with the

majority’s characterization that the permitting requirements

do not promote the government’s interests “in any meaningful

way.” The majority states that “[t]here is . . . no reason two

street performers with permits would be less likely to engage

in a territorial dispute than two street performers without permits.” The majority also states that the permit requirement

“bears no apparent connection to the City’s stated interest in

reducing hostile performer behavior. . . . [because] there is no

reason why a performer with a permit is likely to be less hostile than one without a permit.” This analysis fails to view the

permit requirement in the context of the entire permitting

scheme. Contrary to the majority’s reasoning, the permitting

system advances the City’s interest, because performers (who

violate the Seattle Center rules) risk temporarily losing their

permit and, thus, their ability to perform. If a performer

engages in a territorial dispute (ostensibly because he does not

abide by the first come, first serve rules regarding the designated performance locations), he might also lose his permit.

Likewise, a performer who engages in hostile behavior

towards other performers or patrons likewise risks losing his

permit. The potential to lose the right to perform is a substantial, common sense deterrence to the undesirable conduct the

City seeks to regulate. 

BERGER v. CITY OF SEATTLE 7839
Further, I disagree with the majority that the permitting

requirements do not aid in coordinating multiple uses of the

Seattle Center. While the permit system does not limit the

total number of permits, nor assign particular performers to

specific locations at specific times, it does provide an orderly

means for allocating and prioritizing the use of performance

locations among competing uses. That is, permitted performers have priority to use the performance locations over nonpermitted performers. Further, the permitting scheme allocates the use of particular spaces among permittees on a first

come, first served basis. A permitted street performer is protected if he abides by the rules, and he stands to temporarily

lose his permit (and right to perform) if he does not. While

there may be other schemes that might better clarify or coordinate the use of the Seattle Center for street performances,

the majority’s conclusion that the permit rule does not promote or have any connection to the City’s interest ignores the

punitive and deterrent elements of the permitting scheme.

Although I agree that the permitting scheme is not narrowly

tailored nor is the City’s interest significant enough to justify

such a prior restraint on individual speakers, the scheme otherwise relates to and would meaningfully advance the City’s

interest.

III

I dissent with regard to the City’s performance location

rule. Drawing all reasonable inferences in favor of the City,

see Anderson, 477 U.S. at 255, I agree that the City has met

its burden with unrebutted evidence that demonstrates a significant, legitimate interest, which “would be achieved less

effectively absent the regulation.” See Ward, 491 U.S. at 799

(citation omitted). With regard to whether the rule allows for

ample alternative channels for communication, I disagree with

the majority, which concludes that Berger’s declaration presents “conflicting evidence concerning whether the sixteen

dedicated locations provide adequate access to the intended

audience.” Majority Op. at 7774.

7840 BERGER v. CITY OF SEATTLE
In imposing time, place and manner restrictions, the government must only “refrain from denying a ‘reasonable

opportunity’ for communication.” Menotti v. City of Seattle,

409 F.3d 1113, 1141 (9th Cir. 2005) (emphasis added) (citing

City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 54

(1986)). The Supreme Court has instructed that reasonable

time, place, and manner restrictions need not preserve the

most effective means of communication; rather, such restrictions must only guarantee that individuals retain the “ability

to communicate effectively.” Id. at 1138 n.48 (citing City

Council of City of Los Angeles v. Taxpayers for Vincent, 466

U.S. 789, 812 (1984); Hill v. Colorado, 530 U.S. 703, 729,

(2000) (upholding a law that prohibited individuals from having a position that maximized accessibility to the target of

their speech)). 

In Menotti, we held that a city order prohibiting protest

demonstrations in certain areas during a World Trade Organization (“WTO”) meeting left open ample alternative channels

of communication. See id. at 1138-43. The city order effectively prevented protestors from delivering their message

directly to WTO delegates in the facilities where the WTO

meetings were held. Id. at 1138. Instead, protestors were relegated to areas directly across the street from the meeting location, as well as throughout the rest of downtown Seattle. Id.

In concluding that the city order provided ample alternative

means of communication, we noted that “[t]he Supreme Court

generally will not strike down a governmental action for failure to leave open ample alternative channels of communication unless the government enactment will foreclose an entire

medium of public expression across the landscape of a particular community or setting.” Id. at 1138 (citations omitted). “A

time, place, and manner restriction does not violate the First

Amendment ‘simply because there is some imaginable alternative that might be less burdensome on speech.’ ” Id. (citing

United States v. Albertini, 472 U.S. 675, 689 (1985)). Further,

we recognized that “the First Amendment does not guarantee

the right to communicate one’s views at all times and places

BERGER v. CITY OF SEATTLE 7841
or in any manner that may be desired.” Id. (citations omitted).

“The ‘ample alternatives’ cannot be taken to mean that each

protestor has the right to convey his or her message in the

manner preferred by that protestor.” Id. at 1140. The order

afforded protestors a reasonable opportunity to communicate,

because “[t]he protestors could reasonably expect their protest

to be visible and audible to delegates, even if not as proximate

as the protestors might have liked.” Id. at 1138. 

Berger’s declaration asserts only that “many [of the locations] are far off the walkways where it is very difficult to

notice the performer.”

3

 Giving Berger’s assertion the benefit

of very generous inferences, we might conclude that some of

the City’s designated performance locations are less favorable

to Berger, because he would not be as close to his audience

as he would like. However, the First Amendment does not

guarantee Berger the right to convey his message in the most

effective manner, in the manner he prefers, or as close to his

audience as he might like. See id. at 1138-40.

Further, Berger’s conclusory expression of opinion does

not create any material dispute of fact that would foreclose

summary judgment in favor of the City. For instance, Burger’s declaration does not dispute the location of the designated performance areas as portrayed by the City’s evidence.

Berger’s declaration also does nothing to negate the other

facts evident from the record. For instance, the record confirms that the location rule does not exclude performers from

the Seattle Center, but limits access to sixteen locations within

the forum. The record also shows that some ten million people visit the Space Needle, Key Arena, Pacific Science Cen3The majority also cites Berger’s assertion that construction equipment

at the Seattle Center temporarily blocked access to certain of the designated performance locations. This assertion is inapposite to the facial

validity of the performance location rule. Further, even if construction

impeded the use some performance locations for “weeks on end,” such a

temporary condition cannot be relevant to determining whether the rule

provides reasonable opportunity to communicate. 

7842 BERGER v. CITY OF SEATTLE
ter, and the Experience Music Project each year. The map

showing the performance locations places the street performers in areas that are plainly accessible to the corridors of traffic and very near places where the public would naturally

congregate as they visit the City’s famous attractions. The

record shows that the performance locations were selected as

a result of a public process in which the street performers

themselves provided significant input. These sixteen locations

provide more than reasonable opportunity to communicate to

the five to eight performers who typically perform on the

Seattle Center grounds at peak times. Further, if the performance locations prove inadequate for a particular performance, a performer can request special approval for an

alternate performance location. 

Based on Berger’s assertion that “many” of the locations

are “far off the walkways,” the majority concludes, that “there

are conflicting inferences to be drawn regarding material facts

pertinent to the dispositive consideration, adequacy of access

to the intended audience.” Majority Op. 7774. By inference,

the majority suggests that the location rule must guarantee a

level of access that meets the speaker’s subjective expectation, something that our cases have not previously required.

In answering whether Berger and other street performers have

an objectively reasonable opportunity to communicate, the

record shows that the performance locations are all (1) within

the Seattle Center, (2) adjacent to pedestrian walkways, and

(3) near the Center’s most popular attractions. On this basis,

the street performers can reasonably expect that their performances will be “visible and audible to [their intended audiences], even if not as proximate as [they] might have liked.”

See Menotti, 409 F.3d at 1138. Berger’s assertion is, at most,

an expression of his subjective view that the designated locations prevent the most effective form of communication. It

does not create conflicting evidence as to whether the performance locations objectively provide “reasonable opportunity

for communication.” Id. at 1141. Therefore, I would hold that

the record is sufficiently developed, and the City has met its

BERGER v. CITY OF SEATTLE 7843
burden to show that street performers have ample, reasonable

alternatives for communication.

IV

I join in the majority’s conclusion that the active solicitation ban is unconstitutional as presently written. Yet, I am

concerned that the majority opinion could be read to hold that

any restriction on solicitation is necessarily content-based and

therefore subject to strict scrutiny.

I agree that solicitation falls within the protection of the

First Amendment. See Vill. of Schaumburg v. Citizens for a

Better Env’t, 444 U.S. 620, 628-32 (1980).4 Contrary to the

majority’s assertion, however, First Amendment jurisprudence generally treats regulation of solicitation as contentneutral. The Supreme Court has characterized “the inherent

nature of solicitation itself, a content-neutral ground.” United

States v. Kokinda, 497 U.S. 720, 736 (1990). Likewise, in

Heffron v. International Society for Krishna Consciousness,

4

I note that charitable solicitation has been held to receive the full protections of the First Amendment. “[C]haritable solicitations ‘involve a

variety of speech interests . . . that are within the protection of the First

Amendment,’ and therefore have not been dealt with as ‘purely commercial speech.’ ” Riley, 487 U.S. at 788 (quoting Schaumburg, 444 U.S. at

632). Non-charitable solicitation may not be entitled to the same measure

of protection as charitable solicitation. See id. at 796. If such solicitation

is motivated purely by profit and follows a provision of goods or services,

it may be more akin to commercial speech, and not fully protected expression. There has been no argument that the solicitation rule in this case regulates only commercial speech. And it is clear that the regulation applies

to both charitable and non-charitable solicitation by street performers.

Therefore, the majority correctly applies the test for fully protected

expression. Nonetheless, it seems likely that the street performers targeted

by the City’s regulations perform with an expectation of receiving remuneration. Although the record is not clear, I suspect that most of the street

performers are in the business of entertainment and provide entertainment

services and accept “contributions” and “donations” as a source of personal income. For them, their craft is their ware and their solicitation is

inevitably commercial in nature. 

7844 BERGER v. CITY OF SEATTLE
Inc., 452 U.S. 640, 648-49 (1981), the Court found a regulation limiting solicitation in a public fairground to certain locations to be content-neutral, because it applied to all who

sought to solicit funds. 

Our own case law confirms that solicitation regulations can

be content-neutral. See ACORN v. City of Phoenix, 798 F.2d

1260 (9th Cir. 1986). In ACORN, the solicitation ordinance in

question prohibited solicitation of vehicles while they were

stopped in traffic. Id. at 1267-68. The ordinance provided:

“No person shall stand on a street or highway and solicit, or

attempt to solicit, employment, business or contributions from

the occupants of any vehicle.” Id. at 1262 (quoting Phoenix

City Ordinance § 36-101.01). The ordinance did not ban

solicitation of contributions altogether, but only regulated the

location and permissible targets for such activity. Id. at 1267.

The ordinance also permitted other forms of communication

(e.g. oral advocacy and distribution of literature). Id. We concluded that the ordinance was content-neutral, because it did

“not single out any group or the content of any speech.” Id.

We further explained that the ordinance was not passed to

suppress any particular viewpoint but “was adopted to promote the city’s interest in ‘public peace, health and safety.’ ”

Id. at 1267-68.

The majority relies on our decision in ACLU of Nevada v.

City of Las Vegas (ACLU II), 466 F.3d 784 (9th Cir. 2006),

for the proposition that a regulation banning conduct associated with solicitation is content-neutral, while a regulation

regulating the speech associated with solicitation is not. In

ACLU II, we considered whether an ordinance banning solicitation at certain Las Vegas locations was content-neutral. The

ordinance prohibited any solicitation, defined as “ ‘to ask,

beg, solicit or plead, whether orally, or in a written or printed

manner, for the purpose of obtaining money, charity, business

or patronage, or gifts or items of value for oneself or another

person or organization.’ ” ACLU II, 466 F.3d at 788 (quoting

Las Vegas Municipal Code § 10.44.010(A)). The ordinance

BERGER v. CITY OF SEATTLE 7845
was interpreted to prohibit the distribution of handbills or

leaflets that solicit money or donations, regardless of whether

they involved a request for immediate or future donations. Id.

The three-judge panel concluded that the ordinance was not

content-neutral because, “in order to enforce the regulation,

an official ‘must necessarily examine the content of the message that is conveyed.’ ” Id. at 794 (quoting Forsyth County,

Ga. v. Nationalist Movement, 505 U.S. 123, 134 (1992)). In

other words, because law enforcement would have to read the

content of the message conveyed to determine whether it fell

within the ban, the ordinance was content-based. See id. at

794 & 796. The three-judge panel distinguished ACORN and

prior Supreme Court cases, which had previously held solicitation regulations to be content-neutral, by characterizing

those cases as involving regulations of the “act of solicitation”

and not “words of solicitation.” Id. In essence, the panel held

that solicitation regulations can be content-neutral only if they

regulate “an element of conduct interwoven with otherwise

expressive solicitation.” Id. at 795 (quoting Lee, 505 U.S. at

705 (Kennedy, J., concurring)). But, if the regulation restricts

only the speech associated with the solicitation, it is contentbased and therefore violates the First Amendment unless it

survives strict scrutiny. See id.

The distinction, made in ACLU II between an “act of solicitation” and “words of solicitation,” would not make any difference under the majority’s content-neutrality analysis.

Based on ACLU II, the majority distinguishes the outcome in

ACORN, reasoning that the regulation there prohibited only

an act of solicitation: the immediate physical exchange of

money.5 Therefore, under the majority’s reasoning, a ban on

5While the majority interprets the ordinance at issue in ACORN as prohibiting “only the immediate physical exchange of money,” I disagree. I

read the ordinance as clearly applying to any solicitation of or “attempt to

solicit employment, business or contributions” regardless of whether

money was physically exchanged. See ACORN, 798 F.2d at 1262. 

7846 BERGER v. CITY OF SEATTLE
in-hand solicitation involving the physical exchange of money

would be content-neutral. But applying the logic of ACLU II

to the facts of ACORN, the distinction fails to reconcile the

different outcomes. 

As a practical matter, there can be no act of solicitation

without words of solicitation. That is, all solicitation involves

expressive speech or conduct. A solicitation is nothing more

than a request in which the solicitor communicates, in some

fashion, his desire that the person solicited do something,

such as give money, join an organization, transact business,

etc.6 If there is no such expression, it cannot be said that any

act of solicitation has occurred. Therefore, whether the regulation restricts conduct or speech, the applicability of the regulation depends on an evaluation of the content of the speech

associated with the conduct. 

For example, to determine whether an exchange of money

is the result of a solicitation or a voluntary gesture of gratitude

between old friends, there must necessarily be an evaluation

of both conduct (the in-hand exchange of money) and the

expressive communication associated with it. What did the

recipient of the money communicate that led to the exchange?

If he asked for money, then the regulation applies. If he

merely expressed gratitude for his old friend and the donor

volunteered the money, the regulation does not apply. Under

the majority’s reasoning, no regulation that applies to an “act

of solicitation” can ever be content-neutral, because conduct

only becomes an act of solicitation when it is associated with

words of solicitation. And to find words of solicitation, there

must necessarily be some evaluation of the content of the

communication associated with the conduct.

6A common dictionary defines “solicit” as “to approach with a request

or a plea (as in selling or begging) . . . to endeavor to obtain by asking or

pleading . . . .” Webster’s Third New International Dictionary 2169

(1993). 

BERGER v. CITY OF SEATTLE 7847
Under the majority’s reasoning, the ordinance in ACORN

should have been held to be content-based, because to determine its applicability, law enforcement was required to evaluate the content of communications to determine whether

individuals standing alongside stopped vehicles were asking

the occupants for money, as opposed to simply communicating their views on political issues. Therefore, either ACORN

or ACLU II was wrongly decided. Given the broad treatment

of general solicitation regulations as content-neutral, I suggest

the latter. In my view, ACLU II took the term “content-based”

to its literal extreme and employed a hyper-technical analysis

that effectively precludes any reasonable time, place, or manner restrictions on solicitation. Consequently, I find the majority’s reliance on ACLU II to be misplaced.

The mere fact that a regulation requires an evaluation of the

content of a communication is not determinative as to whether

the regulation, on its face, is an impermissible content-based

regulation. See Ctr. for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Dept., 533 F.3d 780, 789 n.5 (9th Cir.

2008). Any regulation of solicitation necessarily requires an

evaluation of the communication to determine whether it falls

within the regulation. But such an evaluation is not necessarily dependent on the substantive content of the message. It

turns, instead, on the general character or form of the communication or the type or class of speech involved. 

In Hill v. Colorado, 530 U.S. 703, 722 (2000), the Supreme

Court upheld a Colorado statute banning any leafletting, displaying of signs, engaging in oral protest, education, or counseling within eight feet of any person within a radius of onehundred feet of a health care facility.7

 The Court considered

7

In Hill, the challenged statute provided, “No person shall knowingly

approach another person within eight feet of such person, unless such

other person consents, for the purpose of passing a leaflet or handbill to,

displaying a sign to, or engaging in oral protest, education, or counseling

with such other person in the public way or sidewalk area within a radius

of one hundred feet from any entrance door to a health care facility. . . .”

Hill, 530 U.S. at 708 (citing Colo. Rev. Stat. § 18-9-122). 

7848 BERGER v. CITY OF SEATTLE
whether such a proscription was content-neutral, because

enforcement of the statute required an examination of the oral

statements made by a person suspected of violating the statute. Id. at 720. In holding the statute to be content-neutral, the

Court noted:

It is common in the law to examine the content of a

communication to determine the speaker’s purpose.

Whether a particular statement constitutes a threat,

blackmail, an agreement to fix prices, a copyright

violation, a public offering of securities, or an offer

to sell goods often depends on the precise content of

the statement. We have never held, or suggested, that

it is improper to look at the content of an oral or

written statement in order to determine whether a

rule of law applies to a course of conduct.

Hill, 530 U.S. at 721. The Court reasoned that even if a “cursory examination” were required to determine whether the

statute applied, such an examination would not be problematic. See id. at 721-22.

First Amendment case law demonstrates that we afford

varying degrees of protection to different types of speech.

Political speech, for example, is at the core of First Amendment protection and any restrictions placed upon it must

weather an exacting, strict scrutiny. See, e.g., McIntyre v.

Ohio Elections Comm’n, 514 U.S. 334, 347 (1995) (citing

Roth v. United States, 354 U.S. 476, 484 (1957)); ACLU of

Nevada v. Heller, 378 F.3d 979, 988 (9th Cir. 2004). In contrast, purely commercial speech has been afforded a more

“limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values.”

Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978).

Presumably, a regulation that applies only to commercial

speech requires an evaluation of the content of the speech to

determine the character or type of speech (whether it is commercial). Yet, this type of evaluation has not generally been

BERGER v. CITY OF SEATTLE 7849
held to be content-based and does not trigger strict scrutiny

review. In the same way, an evaluation of a particular communication to determine whether it is a solicitation is not

based on the substantive content of the message or the viewpoint of the speaker. It is, instead, a cursory evaluation to

determine the general character or form of the speech itself.

This evaluation of form does not make the regulation contentbased. 

Further, in the abstract, a simple solicitation of funds does

not necessarily involve the exposition of any ideas. As the

Supreme Court has stated, charitable solicitation falls within

the greater protection of the First Amendment, because it “is

characteristically intertwined with informative and perhaps

persuasive speech seeking support for particular causes or for

particular views on economic, political, or social issues.”

Schaumburg, 444 U.S. at 632. “[C]haritable appeals for funds

. . . involve a variety of speech interests—communication of

information, the dissemination and propagation of views and

ideas, and the advocacy of causes—that are within the protection of the First Amendment.” Id. Consequently, the substantive content of a solicitation triggering constitutional

protection is not the mere request for funds, but the viewpoints, ideas and persuasive speech that are intertwined and

communicated with the solicitation. A regulation that asks

only whether the communication is a solicitation of any kind

does not require an evaluation of any substantive content.

Therefore, the type of evaluation required by a typical solicitation regulation (i.e. whether the communication is a solicitation) is not the type of content-based evaluation that the First

Amendment disfavors.

In my view, a solicitation regulation is content-neutral if (1)

the underlying purpose of the regulation is not to suppress a

particular viewpoint or any substantive idea;8 (2) the regula8

See Ward, 491 U.S. at 791 (stating that the government’s purpose in

adopting the regulation is the primary consideration). 

7850 BERGER v. CITY OF SEATTLE
tion, on its face, does not single out particular substantive

content for differential treatment;9 and (3) the regulation does

not single out a particular group.10 In other words, if a solicitation rule applies even-handedly to anyone who solicits, it is

content-neutral. See Heffron, 452 U.S. at 648-49.

However, I join the majority in invalidating the City’s

active solicitation ban, because this particular regulation does

more than generally ban solicitation or regulate only the manner of solicitation. It singles out a particular group that is

defined, in part, by the medium through which they express

themselves and the substantive message they convey. It also

requires more than a technical evaluation of the general character of the communication. To enforce the ban, an official

must first determine whether the communication was a solicitation (which would be a permissible content-neutral evaluation). The official must then determine whether the

solicitation was active or passive (also a content-neutral evaluation). If the speech is an active solicitation, then the rule

requires the official to (1) determine who made the solicitation and whether that person is a street performer, and (2)

evaluate whether the active solicitation was made in connection with the street performer’s artistic expression or performance (as opposed to soliciting funds for some other cause).

As written, the rule targets only those involved in artistic

expression. In my view, it improperly focuses on who is doing

the soliciting and for what purpose they are soliciting, converting the rule into an impermissible content-based regulation.

9

See Foti v. City of Menlo Park, 146 F.3d 629, 636 n.7 (9th Cir. 1998).

10See ACORN, 798 F.2d at 1267 (a restriction on solicitation that “does

not single out any group or the content of any speech” is content-neutral).

BERGER v. CITY OF SEATTLE 7851