Date: 06-24-2009

Case Style: Michael James Berger, aka Magic Mike v. City of Seattle, Virginia Anderson, et al.

Case Number: 05-35752

Judge: Marsha S. Berzon

Court: United States Court of Appeals for the Ninth Circuit on appeal from the Western District of Washington, King County

Plaintiff's Attorney: Elena Garella, Law Office of Elena Luisa Garella, Seattle, Washington; Robert Corn-Revere, Davis Wright Tremaine LLP, Washington, DC, for the plaintiff-appellee.

Sarah A. Dunne, American Civil Liberties Union, Seattle, Washington on behalf of amicus curiae American Civil Liberties Union.

Defendant's Attorney: Gary Keese and Carlton W. Seu, Seattle City Attorney’s Office, Seattle, Washington, for the defendants-appellants.

Description: 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 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 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.

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

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 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.

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 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, 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 Anti- Discrimination 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 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.

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 relevant 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.

[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 evidence 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 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.

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., 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.”).

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 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 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 — according 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.

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

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.

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.

[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

Outcome: [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 Center’s permitting requirement is not a reasonable time, place, or manner restriction.

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