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May Government Ban Advocacy Near Movie Theaters, Outdoor Restaurants, and the Like?

It seems to me pretty clear that it may not, because such picketing -- whether related to labor issues, the merits of the movies the theater was showing, or whatever else -- is protected by the First Amendment, at least in traditional public forums such as parks or sidewalks.

The law may restrict the volume of the picketing, or the size of the group, especially if there's a serious security threat that may stem from the presence of a large group, or if the group is likely to block pedestrian traffic. In some situations, the law may create a 36-foot buffer zone if there's a serious risk of picketers' blocking entrances, and narrower restrictions have proven unavailing. The law may also require that people not approach within a few feet of a particular person to talk to the person without the person's permission. And the Court has upheld restrictions on residential picketing, stressing the special role of the home as a place where people should be able to retreat from controversy. But as a general matter, people -- especially in small groups -- are free to express their views in front of places of commerce and entertainment, even when offended listeners might be present.

The Ninth Circuit, though, held last week (Berger v. City of Seattle) that it's constitutional to ban speech to strangers -- even speech by one person -- within 30 feet of "any captive audience," including "patrons waiting in line for events" or eating in a seating area. The particular rule involved restrictions in a park, but a city sidewalk is just as much a traditional public forum as a park.

So this means that picketing, demonstrating, and the like, on city sidewalks -- even when engaged in by one person -- can be forced 30 feet away from any movie theater line, any outdoor restaurant seating area. Likewise, I take it that such speech can be forced 30 feet away from any employee whose job requires him to stand near a sidewalk, for instance a hotel doorman, an employee working as a sidewalk vendor, a maintenance worker, and the like. Those employees are, after all, even more "captive" than diners or people standing in line.

What's more, the court read Madsen's authorization of a 36-foot buffer zone outside an abortion clinic entrance as being justified by "captive audience" concerns related to "women entering an abortion clinic." The Ninth Circuit thus seems to suggest that an audience may be "captive" even to speech that it only needs to see briefly. If that's so, then any picketing or demonstrating outside any business would be seen as involving a "captive audience" of business employees and vendor employees who have to come and go through the front door, and perhaps of customers, too.

This strikes me as a pretty clearly mistaken result. It might not have been intended by the judges in the Ninth Circuit panel majority, who were talking about restrictions in a park and not on a sidewalk -- but, as I mentioned, parks and sidewalks are both treated as the same sort of place by First Amendment law (a traditional public forum), and if a restriction is allowed in a park, it would presumably also be allowed on a sidewalk. (If anything, restrictions on sidewalks may often be more justifiable because pedestrian traffic problems tend to be more serious on sidewalks.)

Moreover, while the particular plaintiff in the Ninth Circuit case was a street performer who made balloons, apparently performed magic tricks, "talk[ed] to his audience about his personal beliefs, especially the importance of reading books," and seemingly accepted contributions, the panel's rationale wasn't limited to people like plaintiff (nor am I quite sure just how it could be so limited). The panel upheld the captive audience rule on its face, and treated it (in relevant part) as banning "speech activities 'within thirty (30) feet of any captive audience ....'" It did not limit its decision to rules banning speech activities that solicit (expressly or implicitly) the immediate handing over of money, or to rules banning balloonmaking and magic tricks but allowing political or social advocacy. The decision is thus a precedent for restrictions that cover many more people than "Magic Mike" Berger.

Finally, I should note again that the Court has indeed accepted some kinds of restrictions on picketing in public places, as I said in the second paragraph of this post. The Ninth Circuit's decision is thus not a completely radical new step. But it does go far beyond, I think, the narrow restrictions that have been upheld, and covers speech that poses no real security risk, no threat to individual privacy, no material threat of blocking entrances, and no inherent danger of people trespassing on others' personal space (this is a 30-foot exclusion zone, not a requirement that one stay 8 feet away from people whom one is approaching).

And to the extent that one does see this as a logical extension of past decisions, that should be a reminder that the slippery slope from narrow restrictions to much broader ones is a real risk in a legal system that's built on analogy and precedent. Even when the precedents by no means require a particular result, and even don't justify it in the minds of many, some decisionmakers (here, judges) may read them that the precedents may end up justify many more restrictions than the precedents' drafters contemplated.

Dilan Esper (mail) (www):
Great post, Professor Volokh, on an outrageous decision. The dissent by Berzon was very good-- she calls the majority on the fact that they want to call the Seattle Center anything but what it is, a public park (because obviously everyone knows a park is as traditional a public forum as there is).

I think this case will be taken en banc. There has been plenty of street performer litigation over the years (I was involved in a suit in Santa Monica a few years back) and the panel that this case drew was considerably more conservative and unlibertarian than the Court as a whole.
1.14.2008 2:49pm
Brian G (mail) (www):
The answer is, really, is that it depends.

If it is abortion protestors, then the government can do everything short of flogging them in public. If the protest is anti-Bush, then they have an absolute right to be there. If the protest is about anything else, then who knows?
1.14.2008 2:56pm
uncle fester (mail):
you know, 30 feet is nothing. two parking spots end to end are about 40 feet. 30 feet is less than two cars butted bumper to bumper.
1.14.2008 3:17pm
Prufrock765 (mail):
fester:
tell it to the Offensive Coordinator facing fourth and ten.
:)
1.14.2008 3:31pm
Smokey:
In a related instance [recall EV's 'slippery slope' concern], why is any group, no matter how reprehensible to me, given judicial permission [over my objection] to set up a card table on my commercial property, right outside a store entrance, solely for the purpose of soliciting donations for their pet cause, or to collect the $5.00 per signature on the latest ballot proposition they're cashing in on?

These people don't help me pay my property taxes, they don't reimburse me for lost business, or for driving away good tenants. They don't clean up when they leave, and they cause customers to complain to me and [occasionally] threaten to never return unless I do something about it.

I'm not talking about a public park or a sidewalk, I'm talking about property that I have worked many years to acquire. Would it be OK if I set up my card table collecting for 'battered women,' or whatever the money scam of the day is, right outside the judge's front door in a gated community? Somehow I suspect that these same judges would find a reason to say no to that.

What I have worked and pay for now belongs to others for free, whenever they want it. There's your slippery slope.


/rant
1.14.2008 3:32pm
Jaime non-Lawyer:
I wonder what their decision would have been if the case involved protests in front of a military recruiting office.
1.14.2008 3:33pm
Mr. Liberal:
Your concerns about slippery slopes are overblown.

At the end of the day, we live in a democracy.

We can override our judges, if we really want to. We can break from past precedent, if we really want to.

The above, is a four sentence rebuttal to your silly law review article all about slippery slopes. And it is so much shorter.
1.14.2008 3:38pm
boose:
Arg. I hate it when the real solution is that someone needs to own the sidewalk other than the government. On the one hand, people should be allowed to say what they want. On the other hand, people should be allowed to walk where they want without someone yelling too close to them (invading personal space and all). If the businesses simply owned some space outside their building this wouldn't even be a legal issue. Frustrating...
1.14.2008 3:38pm
common sense (www):
Mr. Liberal,
I thought one of the reasons for the Bill of Rights is so that the tyranny of the majority cannot override certain rights.
1.14.2008 3:49pm
David M. Nieporent (www):
Wait: so if I own a mall in California, the government can stop me from banning speech there.... but the government can ban speech there?
1.14.2008 3:59pm
David M. Nieporent (www):
Your concerns about slippery slopes are overblown.

At the end of the day, we live in a democracy.

We can override our judges, if we really want to. We can break from past precedent, if we really want to.

The above, is a four sentence rebuttal to your silly law review article all about slippery slopes. And it is so much shorter.
And so much less intelligent. If you were less interested in trolling, you'd stop this idiotic mantra about "democracy." Jim Crow was "democracy." Abortion bans are "democracy." Democracy has no inherent value, nor does it lead to inherently good results. Nor is it "liberal" to think otherwise.
1.14.2008 4:02pm
Elliot123 (mail):
Suppose the speaker is a member of the captive audience, or is a member of another captive audience. Consider two lines for two events, each within 3o feet of the other. Can everyone in each line censor the speech of everyone else in each line?

Are all other passengers on a bus forbidden to speak of things to which I object? Baseball game spectators? Concert attendees? Students sitting in class? Is the teacher within 30 feet of a captive audience of students? Company lunchroom? State prison?

Is this decision contrary to the Bergen College Code?
1.14.2008 4:02pm
Ralph Phelan (mail):
I don't find this that disturbing. At least it's content neutral and whose-ox-is-being-gored neutral, unlike the rules that give abortion clinics more relief from protesters than anyone else gets.

It also gets at one of the things that irritates me about a lot of protesters, leftists and Phelpsians alike - they're always claiming a "free speech right" to the time and attention of someone else's audience.
1.14.2008 4:10pm
Mr. Liberal:

Jim Crow was "democracy."


I'm sorry. I didn't realize that murdering, lynching, and terrorizing black people who tried to vote was consistent with your definition of democracy.

Sorry, but Jim Crow was not consistent with my definition of democracy.


Democracy has no inherent value


Its nice to hear you discredit and marginalize yourself with this statement. I suppose that in its place, we should substitute libertarian dogma so the sociopaths of the world can have free rein.


nor does it lead to inherently good results


But it has lead to inherently good results, as long as the franchise has been universal and not denied by legal or extralegal means (i.e. property requirements, sexual discrimination, racial discrimination, terrorism, lynching, and murder).

Now, progress is slower than I would like, but it is undeniable that their has been massive social progress because of democracy.

Now, is every single result in a democracy, without exception "inherently good?" No. But that is an impossible standard for any system of organizing society to meet. But on the whole and painful exceptions aside, democracy leads to progress and thus inherently good results.

Those who fear democracy, fear the People. And they fear social progress. And they fear accountability. And they fear losing unearned social distinctions and unearned privileges.

I take it you count yourself among the ranks of those who fear the People.
1.14.2008 4:22pm
Ralph Phelan (mail):
Those who fear democracy fear the mob.
And rightly so.
1.14.2008 4:27pm
ChrisO (mail):
I also hate the ever-decreasing place that is 'public space.' It mostly exists now as a relic in historic downtowns.
1.14.2008 4:27pm
Wayne Jarvis:
Geeez. Where does this guy get off telling people to read books?

If everyone starts reading books, who will be left to tell us that we don't need a Bill of Rights because we live in a democracy?
1.14.2008 4:35pm
Daniel Chapman (mail):
Which definition are you using, Mr. Liberal?

de·moc·ra·cy /dɪˈmɒkrəsi/ Pronunciation Key - Show Spelled Pronunciation[di-mok-ruh-see] Pronunciation Key - Show IPA Pronunciation
–noun, plural -cies.
1. everything I like and nothing I don't.
1.14.2008 4:55pm
cjwynes (mail):
This law might be "content neutral", but I most sincerely doubt that its enforcement will be. In certain hands, this kind of law is just an excuse to shut down speech with which the ones in power disagree.

I thought Professor Volokh's article on the slippery slope was really quite good, in fact that's what led me to this blog :-) Everybody should read it if you haven't already.
1.14.2008 5:01pm
Dilan Esper (mail) (www):
The answer is, really, is that it depends.

If it is abortion protestors, then the government can do everything short of flogging them in public.

I didn't agree with the abortion protester decisions, but this is an unfair comparison. The abortion cases are readily distinguishable in that you have protests which INTENDED to physically block access to the clinic. Thus, the protests are being regulated for the NON-communicative aspect of the protest-- attempting to prevent women from exercising their right to have an abortion-- and not the communicative aspect of the protest, i.e., informing the woman as well as those who work in the clinics that the protestors believe that abortion is wrong. The latter is fully protected expression even if the women, doctors, and clinic workers are "captive" and have no choice but to hear the message.

In contrast, the street performers aren't trying to prevent anyone from buying a hot dog or going to the movies. Rather, the government is taking the position that it can severely restrict street performance not based on the NON-communicative aspects of the performance but simply because allegedly captive audiences may not want to hear or see a street performer. This regulation thus stands in a completely different stead from the abortion clinic decisions.
1.14.2008 5:07pm
Mike G in Corvallis (mail):
Hey. Mr. Liberal --

Sunday blue laws, compulsory unionization, right to work laws, alcohol probibition, drug prohibition, witch hangings, involuntary servitude (with or without regard to race), debtors prisons, anti-sedition restrictions on speech ... they've all been expressions of the Will of the People, at one time or another. Gotta love 'em!
1.14.2008 5:26pm
David M. Nieporent (www):
I'm sorry. I didn't realize that murdering, lynching, and terrorizing black people who tried to vote was consistent with your definition of democracy.

Sorry, but Jim Crow was not consistent with my definition of democracy.
You're not entitled to your own definitions of words. Democracy means majority rule. That's all it means. It doesn't mean individual rights -- indeed, it's antithetical to them; rights, by definition, are countermajoritarian. It doesn't mean "progress."


Those who fear democracy, fear the People.
Correct. As did our founding fathers. Mob rule is something to fear. That's why the entire structure of our government is based upon diluting the power of "the People," checking and balancing it, including with judges appointed for life.
1.14.2008 5:32pm
Andy Freeman (mail):
> The abortion cases are readily distinguishable in that you have protests which INTENDED to physically block access to the clinic.

Does the ban really apply only to those abortion protests that are intended to physically block access?

Or is that just the way it is supposed to work? I ask because I've seen police remove protestors who weren't blocking anything. Were they wrong? If so, what should be done about that error?

FWIW, I'm pro-abortion.
1.14.2008 5:54pm
bittern (mail):

Democracy means majority rule.

Oh, David, voting is the thinnest sliver of real democracy. There's already a word for "majority rule" -- well, two words: "Majority rule." Simply, "democracy" means "government by the people." Since that doesn't tell us very much, why not make the powerful word "democracy" mean something more?
1.14.2008 6:47pm
bittern (mail):
I know everybody ranks sharing their feelings as their greatest pastime after TV, but why oh why do they think they have a right to bother me with them?
1.14.2008 6:50pm
NicholasV (mail) (www):
Bittern - maybe because they do? It seems to me that true "free speech" and "I want to be left alone in public places" aren't terribly compatible.
1.14.2008 7:19pm
Dilan Esper (mail) (www):
Does the ban really apply only to those abortion protests that are intended to physically block access?

Or is that just the way it is supposed to work? I ask because I've seen police remove protestors who weren't blocking anything. Were they wrong? If so, what should be done about that error?

The Supreme Court cases that we are talking about uphold court injunctions where the protesters had been obstructing access to the clinics.
1.14.2008 7:28pm
kietharch (mail):
I suppose EV is right but he's only right because so few people choose to exhort us on public streets. If it were more common I and most other sidewalk users would insist that it stop. Exhortations to complete strangers
are not pleasant . Assure me they are important to civic life. I don't believe it.

Recently I crossed Mercer St. at about 6AM (dark here at that hour) and I absorbed a rant from a (probably) deranged man. You lawyers will say that's different, there was a threat. I can't say that it was a threat. It was just someone letting a lot of bile out of his tangled and broken system. It's OK, but it's only OK because it doesn't happen often.
1.14.2008 8:41pm
Mr. Liberal:

You're not entitled to your own definitions of words. Democracy means majority rule. That's all it means. It doesn't mean individual rights -- indeed, it's antithetical to them; rights, by definition, are countermajoritarian. It doesn't mean "progress."


You need to read up on your history.

Jim Crow prevented majority rule by illegal terrorism directed at black people who tried to exercise the franchise.

To ignore the fact that people who had a right to vote were terrorized, murdered and lynched is pretty darn ridiculous.


Correct. As did our founding fathers. Mob rule is something to fear. That's why the entire structure of our government is based upon diluting the power of "the People," checking and balancing it, including with judges appointed for life.


You apparently don't know much about history. Our founding fathers had very different views from each other. The views of Thomas Jefferson and James Madison were very different than the views of Alexander Hamilton.

Actually, given the context of the time, our Constitution is all about increasing the power of the People, relative to what it was previously.

First, the Constitution begins by evoking the People. "We the People." Second, any provision of the Constitution can be amended by the People. Third, the Constitution was submitted to ratifying conventions whose members were elected under less strict property requirements than was typical in each of the colonies.

Overall, it is simply undeniable that under the Constitution, the People have the final say, and are the authority invoked to legitimize the Constitution in the first place.

The Constitution was, strictly speaking, an illegal document. But, it was and is considered legitimate because it was submitted to and approved by the People.


It doesn't mean "progress."


Democracy doesn't literally mean "progress," but history has shown that democracy and progress go hand and hand.

As we have increased and improved our democracy, our society has improved for the better.

But, actually, I am glad you disagree. It demonstrates how fundamentally illegitimate libertarianism is. You want to foist this ideology on the People without their consent. You apparently think that their is some higher authority than the People themselves. Why? Because you know that libertarianism doesn't have a snowballs chance in hell any other way.

Why does David Bernstein advocate for Lochner? Because he knows that libertarianism doesn't have a chance in a democracy, if put to a vote. I am unconcerned. We the People can and will put libertarian judges in their place, in the unlikely event they ever gained a critical mass.

But, alas, not even George W. Bush likes libertarian judges all that much. I guess your screwed. =)
1.14.2008 9:08pm
Mr. Liberal:

Sunday blue laws, compulsory unionization, right to work laws, alcohol probibition, drug prohibition, witch hangings, involuntary servitude (with or without regard to race), debtors prisons, anti-sedition restrictions on speech ... they've all been expressions of the Will of the People, at one time or another. Gotta love 'em!


First, many things on your list do not sound like unreasonable results.

But lets take a few.

Involuntary servitude was here before democracy. And it was ended by democracy. Just as important, its existence contradicts democracy, insofar as slaves were not allowed to vote. You are talking about something that existed in our society when we were less democratic. That as we became more democratic, we eliminated involuntary servitude demonstrates my point.

The Alien and Sedition Acts, with the exception of the Alien Enemies Act, were allowed allowed to expire or were repealed after the Jeffersonians took power in 1801. Another illustration of the power of democracy to create progress.

Today, we would never have witch burnings and hangings in our modern society, where we have free compulsory and universal education for all. It was ignorance and superstition that can only thrive in the uneducated in a much less democratic society that allowed for these atrocities.

Debtors prison was a hold over from English society, which was eventually abolished by democratic means in an increasingly democratic America.

Like I said already said, not every single act in an increasingly democratic society will be for the good. But, over a period of time, democracy has revolutionized society for the better. Further, as we have become more democratic (eliminating property requirements to vote, allowing women to vote, allowing blacks and other minorities to vote), progress has been even stronger.

So, democracy and progress are not the exact same thing. Duh! But, they are very interrelated.

The power belongs to the People. If you want go against our Constitution and our traditions and assert otherwise, fine by me.
1.14.2008 9:29pm
Brian G (mail) (www):
Dilan Esper,

Nice response to my post.

Neverthless, I continue to think, with good reason, that abortion protests are treated differently, your excellent response not withstanding.
1.14.2008 9:49pm
Wayne Jarvis:
Mr. Liberal. Okay, we are in in on the joke that you are just trolling, but I'll take the bait:

Do you support overturning Roe v. Wade and Lawrence v. Texas?

The law struck down by those two cases, were the will of The People.

And a piece of unsolicited advice: don't say crap like "prevented majority rule by illegal terrorism directed at black people who tried to exercise the franchise." It makes you sound like a 1L.
1.14.2008 9:51pm
Dilan Esper (mail) (www):
Neverthless, I continue to think, with good reason, that abortion protests are treated differently, your excellent response not withstanding.

In a sense, you are clearly wrong. After all, the Ninth Circuit upheld the restrictions on street performers and cited the abortion protest cases to do it.

And as I said, I would have come out the other way on the abortion protest cases, at least in the sense of narrowing the injunctions to actual blockage. As long as people can get in and out and there is no violence, there doesn't need to be a buffer zone.

But what you are overlooking is that if abortion protest cases do come out differently, there's a reason for it-- the fact that the abortion protests include a regulable noncommunicative element-- intentionally blocking the clinic entrance to prevent the clinic from performing abortions-- that is not a part of the street performance. A clinic protester and a street performer face two different First Amendment rules because they are in two different circumstances.
1.14.2008 10:46pm
Mr. Liberal:

Do you support overturning Roe v. Wade and Lawrence v. Texas?

The law struck down by those two cases, were the will of The People.


Well, if the judiciary were the last word on these issues, I would be concerned.

But they are not. The Supreme Court can be overturned through democratic processes. Just like Lochner was overturned by such processes.

Should the judiciary exercise restraint. Yes, it should. When it doesn't, is this an unmitigated disaster for democracy. I don't think so.
1.14.2008 10:59pm
Mr. Liberal:

And a piece of unsolicited advice: don't say crap like "prevented majority rule by illegal terrorism directed at black people who tried to exercise the franchise." It makes you sound like a 1L.


By the way, if you are going to provide unsolicited advice, the least you can do is provide a better alternative to express the same point. =)

I am sure that their is a better way to say this. But, I am equally sure that I do not feel inclined to think about it much for an informal blog comment. Nonetheless, if you have a more pithy means of saying the same thing, do share.
1.14.2008 11:02pm
Wayne Jarvis:


Do you support overturning Roe v. Wade and Lawrence v. Texas?

The law struck down by those two cases, were the will of The People.



Well, if the judiciary were the last word on these issues, I would be concerned.


That wasn't my question. Don't whimp out on us now. Do you Mr. Liberal support Roe v. Wade and Lawrence v. Texas?
1.14.2008 11:24pm
Elliot123 (mail):
"Jim Crow prevented majority rule by illegal terrorism directed at black people who tried to exercise the franchise."

For many years prior to Jim Crow, democracy itself did the job quite well. It just chaned them up.
1.15.2008 12:40am
David M. Nieporent (www):
But, actually, I am glad you disagree. It demonstrates how fundamentally illegitimate libertarianism is. You want to foist this ideology on the People
Uh, right. I want to "foist" the "ideology" of not foisting things on people. You're not really very good at this, are you?
without their consent. You apparently think that their is some higher authority than the People themselves.
I do indeed. The individual.
1.15.2008 12:44am
JBL:
Actually, allowing the greatest possible amount of individual liberty, so that a person's actions are determined as much as possible by the person himself (or herself), doesn't strike me as a particularly unreasonable notion of "democracy".
1.15.2008 12:48am
Eugene Volokh (www):
JBL: It's a pretty reasonable idea about what we'd like democracies to do. (We'd like other forms of government to do that, too, but they're just not very likely to provide that.) I just don't think that "democracy" is generally defined that way.
1.15.2008 1:13am
Ralph Phelan (mail):
It seems to me that true "free speech" and "I want to be left alone in public places" aren't terribly compatible.
They can be quite compatible if we have a right to say "go away and stop bothering me."
1.15.2008 10:42am
Ralph Phelan (mail):
Neverthless, I continue to think, with good reason, that abortion protests are treated differently, your excellent response not withstanding.

In a sense, you are clearly wrong. After all, the Ninth Circuit upheld the restrictions on street performers and cited the abortion protest cases to do it.

In another sense he's clearly right - that EV is bothered by the Ninth finally leveling the playing field highlights just how tilted it was.

Hopefully now that someone liberals have sympathy for is being inconvenienced this slope will suddenly get much less slippery. Making liberalsl live by their own rules often has that effect.
1.15.2008 10:50am
c.gray (mail):

This law might be "content neutral", but I most sincerely doubt that its enforcement will be. In certain hands, this kind of law is just an excuse to shut down speech with which the ones in power disagree.


How does it "shut down speech" by insisting the speaker back up 30 feet from a theater entrance? Frankly, the notion that it is impossible to find a spot to drop a soapbox and a couple of speakers that is not within 30 feet of a "captive audience" is preposterous, even in downtown Seattle. This law is not an effort to curb "free speech" as most people understand that term. Its an effort to get a grip on aggressive panhandling.

Now one may believe panhandling is or ought to be constitutionally protected behavior. But it strains credibility to suggest the city council of Seattle is a group of fascists trying to squelch genuine political activity.
1.15.2008 11:12am
Ralph Phelan (mail):
it strains credibility to suggest the city council of Seattle is a group of fascists trying to squelch genuine political activity.

As a general proposition it's not in the least incredible. But this particular case is clearly not an instance of that.
1.15.2008 11:36am
Dilan Esper (mail) (www):
In another sense he's clearly right - that EV is bothered by the Ninth finally leveling the playing field highlights just how tilted it was.

Hopefully now that someone liberals have sympathy for is being inconvenienced this slope will suddenly get much less slippery. Making liberalsl live by their own rules often has that effect.

This is a nice example of the silly things conservatives believe about liberals. FYI, many, many liberals opposed the abortion protester decisions on exactly the slippery slope ground you raise. Most of the challenges to limitations on abortion protests were brought by or in cooperation with liberals at ACLU chapters around the country.

This isn't some brazen ground of liberal hypocrisy. Liberals who care about free speech tend to be very wary about limitations on abortion protests. Liberals who support the limitations tend to be less vociferous supporters of free speech in general.

Now one may believe panhandling is or ought to be constitutionally protected behavior. But it strains credibility to suggest the city council of Seattle is a group of fascists trying to squelch genuine political activity.

Street performance is not the same as panhandling. Street performance is artistic expression and receives quite a bit more First Amendment protection than merely asking for money.
1.15.2008 12:41pm
Mr. Liberal:
David Nieporent


Uh, right. I want to "foist" the "ideology" of not foisting things on people. You're not really very good at this, are you?


Oh, but you do apparently want to take certain choices off the table, don't you.

You apparently want to prevent people from organizing in a democracy, all in the name of the "individual" being the highest authority. You apparently see yourself as a higher authority than the People. You apparently see yourself as a higher authority than the Constitution.

Fine by me. You have done much to marginalize yourself. Thanks for clarifying.
1.15.2008 2:15pm
c.gray (mail):

Street performance is not the same as panhandling.


In my direct experience, its EXACTLY the same as panhandling. Especially in Seattle.
1.15.2008 2:41pm
Smokey:
Mr Liberal-

Is criticizing another poster for championing the rights of individuals over the rights of organized groups...
...all in the name of the "individual" being the highest authority.
This country was founded on the idea of individual rights, which is exactly where libertarians and conservatives are coming from. The liberal nanny staters, OTOH, promote group rights and group think [so long as the groups support the lib agenda, of course].

Individual rights trump group rights, though. Whether you like it or not:
The smallest minority on earth is the individual.

Those who deny individual rights cannot claim to be defenders of minorities.

-- Ayn Rand
So please don't continue the fiction that liberals claim to be defenders of minorities. They only care about votes. And power.
1.15.2008 3:55pm
David M. Nieporent (www):
Oh, but you do apparently want to take certain choices off the table, don't you.
Of course. I would hope you do, too. Do you think the majority -- whether they're a 51% majority, a two-thirds majority, or a 99% majority, whether they call themselves The People or some other cutsey name -- have the right to enslave others, to silence criticism, to imprison without trial?
1.15.2008 7:26pm
Magic Mike (mail) (www):
This IS Magic Mike. Let's force every visitor to get a photo id permit, and only let them stand in 16 places, to be fair and equal. Let's make sidewalk pedestrians get one too.


If a performer wants to move under a tree's shelter in the rain or strong sunlight they are prohibited from doing so under threat of revocation of their permit and being trespassed from the grounds. If a woman or a minor performer doesn't want their name known, if they don't wear their badge, they are also under threat of revocation of their permit and being trespassed from the grounds. Performers may not perform before 11am or after 10pm even though the grounds are open other times to the public. No more than two people are allowed to work in a spot. Permits are only available to performers who can apply between 9am to 11am Monday-Friday. In order to get the permit you must agree to terms that are unconstitutional on public property.

The suit was filed by Michael Berger, AKA Magic Mike. In 1996 he filed four Federal suits against the City. Seattle Center had police issue him trespass charges in 1993 for refusing to leave, after being told to stop making children balloon animals at Folklife and Bite of Seattle. Seattle Center prohibited about 2 dozen clowns, balloonists and face painters from suiting up that year during a crackdown on unlicensed vendors who sell trinkets on blankets during the festivals. They claimed that face painters gave out paint and balloonists gave out latex, thus wasn't performing. Magic Mike was the only one who felt he knew the law and he resisted. He was escorted into the police station and given a criminal trespass citation during Folklife, which was open to the public on public property. The city never brought the case to court. The same police trio, at the urging of Seattle Center, gave him a criminal trespass citation in July at the Bite of Seattle, even though he was performing in front of the Space Needle and not in the Bite. That same day they also arrested Greg, the one man band with wings, while he played the National Anthem, during the same Bite of Seattle and took him to jail in handcuffs, charging him with criminal trespass. In 1996 Magic Mike filed against the City in Federal District Court when attorney Peter Cogan agreed to take the cases on a pro bono basis. The City settled for $7000 and agreed to send a letter to Pike Place Market, Seattle Center, Folklife, Bite, Bumbershoot and the police that performers are not subject to vendor regulations even if in their performance they give something out or if they receive donations. The other two suits involved criminal citations he received at Waterfront Park in 1995 for performing in a park without a license or permit. He claimed none were needed. The City didn't call one case at all and dismissed charges on the second case. Attorney Peter Cogan filed in District Court again and the City settled with him on those also.

In 2002 rumors of impending regulations began to circulate at the Seattle Center. On numerous occasions in 2002 he warned Seattle Center security personnel that he would take them to court if rules about performing locations and ID's were put into place on public property. He warned Mike Anderson in January 2003 that not only were the proposed rules unconstitutional, but that the rules might also break the good faith in the Federal mandated mediation settlement he had with the City from the two 1993 incidents against Seattle Center.

He filed a Public Disclosure request on August 19, 2002 with the City Clerk and Seattle Center in order to get facts of impending rules. State law requires a response within days. They refused to comply.
Six weeks later, after two calls to the city clerk threatening to cite the city for failure to respond, he received one unrelated document, a copy of the existing rules and not the proposed new rules or the request for property discription. When he obtained lawyer Elena Garella, she received over 500 pages in an identical disclosure request, about a couple hundred documents.
1.17.2008 3:05am
Magic Mike (mail) (www):
1.17.2008 3:06am
Magic Mike (mail) (www):
1.17.2008 3:06am
Magic Mike (mail) (www):
Waterfront Park

Beginning in 1987, at the Waterfront Park, officers had begun rousting all performers and beggars along the pier, trying to use a 1987 ordinance against vending in a park. The officers said I could leave or they would confiscate all my equipment and money until the case was heard in court. I tried to get a license, but was told I by the City Engineer Department I could not have a street use permit. I tried to get a permit from the director of permits at Parks and Recreation. They denied me a permit. I tried to use their system but it wouldn't accept me. In the Spring of 1992, after five years of putting up with this, performing anyway and trying to dodge the police patrolling the pier, I went to the law library and saw that vendor laws didn't apply to street performers. I confronted the Chief of Police and his attorney, Leo Plotts. I said if the police tried to hassle me with a vending law I would take them to Federal Court for denying me my First Amendment rights to express myself in a public place. When I confronted the patrolman, Officer Miller, he told me he was being influenced by the Waterfront merchants who he said were paying him to keep the area clear of persons that were getting money. The merchants felt it was cutting into their daily till. I again called Mr. Plotts and they sent a Lt. Brown to the pier to make Officer Miller desist, after being hassled by him again, even though I told him of my agreement with his superiors. Officer Miller was transferred.

Seattle Center

In the early 1990's Seattle Center began to treat all street performers who were busking with their hat out as vendors. They said we needed to have a permit to perform on the grounds. However, the permit was a contract issued by their Director of Contracts and Concessions. They wanted performers to set hours of operation from 11:00 AM to 6 PM, notify Seattle Center in advance if not coming, and a monthly fee of $300. A few performers agreed to this. I did not. Center security officers would try to chase me off for not having this permit. I made them call police, who informed them I didn't need to comply as I was performing for donations with my hat out. During this time a few balloon performers and face painters decided to get contracts with the Center, and began charging specific prices instead of voluntary donations. They became vendors.

I was told by police many times over the years that I couldn't perform magic and balloon art for children and adults for donations unless I had a permit or license. After trying to get a license and permit and being denied, I went to the Law Library in the Seattle Courthouse and researched all Local, State, and Federal Laws about it. There were NO laws about street performing, and the one's against begging were for the First Amendment. I then went to the chief of police and his lawyer and threatened to take them to court if the police on the pier threatened me again with a vendor law. The officer on the pier wouldn't obey they order so they sent a Superior Officer to the pier to personally brief the officers, when I called the next time they disobeyed him. All was fine for a two years.
Then at a festival at Seattle Center, they said all clowns and ballonists were venders and not performers. They even told people giving a Tarot reading on blankets to leave. A woman told me they took her cards away from her little six year old girl, who was playing with them, afraid she would give someone a reading. They did the same to many street performers that were not vendors, by "declaring" that they WERE vendors. I alone chose to rely on my knowledge of what was right and continued to perform.
While being filmed for a TV news show, six police officers escorted me away, gave me a trespass
ticket, and told me not to come back for a year. I came back the next day with a TV News crews
walking behind me. We confronted the Festival manager, and the Seattle Center manager and
I was reinstated, although others were not.
1.17.2008 3:18am
Smokey:
Seattle, as a genuine libtard city, thinks it doesn't have to follow the law, because it is the law. Kudos to Magic Mike for shoving the constitution so far up their butts they have to gargle to get it out.

And kudos to his pro-bono attorney. There aren't enough of those around.
1.17.2008 2:01pm