Berger v. City of Seattle

Content/Viewpoint Neutrality; Public Forum; Time, Space and Manner Restrictions

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

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

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

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