Let the sidewalk performances go on in Waikiki

THE ISSUE City Councilman Charles Djou has proposed that evening sidewalk performances be banned on Kalakaua Avenue.

THE City Council learned nearly four years ago that it could not infringe on the First Amendment rights of performers on the sidewalks of Waikiki, but it is being urged to try again. A proposal by Councilman Charles Djou needs to be tailored to protect sidewalk performers' rights while minimizing congestion.

Djou would prohibit mimes, jugglers, musicians and other entertainers from performing on the sidewalks along the five-block heart of Kalakaua Avenue from 7 to 10 p.m. At other times, the proposal would forbid performers from blocking pedestrian movement on any public sidewalk or crosswalk. The latter provision alone should suffice.

Duke Bainum, Djou's predecessor representing Waikiki on the Council, authored a city ordinance in 2000 that limited sidewalk performances to six designated locations, forbidding them altogether from walkways along Kalakaua. Bainum said the Council was "trying to make Waikiki safe." Djou likewise says sidewalk performances are "a bit of a safety hazard." Merchants have complained that performers and their audiences block their store entrances.

The American Civil Liberties Union sued the city over the 2000 ordinance, representing, among others, the leader of a church youth group that sang, read passages from the Bible and preached in Waikiki. State Circuit Judge Virginia Crandall struck down the ordinance in December 2001, ruling that it violated the performers' constitutional rights to free speech and due process.

In a 42-page ruling, Crandall wrote that the Council ignored "many obvious less restrictive alternatives." Those, she added, include limiting performers to one per block or designating spots along Kalakaua where there are buffers, such as planters, that prevent pedestrians from stepping onto the street.

The courts upheld an ordinance a decade ago removing T-shirt vendors from Kalakaua sidewalks. The vendors had nothing of substance to express and were trying to exploit the First Amendment to gain a commercial advantage. They eventually departed. In contrast, pedestrians voluntarily put money into the hats of sidewalk entertainers, whose performances are all about expression.

Guitarists, jugglers, singers and living statues are popular on sidewalks improvised into stages from New York's Times Square to the Ramblas of Barcelona and might someday find a place, if they haven't already, on the walkways of Baghdad. The City Council should encourage and accommodate them in Waikiki in ways that protect pedestrian safety and access to businesses.

Djou says he discussed his proposal with city criminal and civil attorneys and with a constitutional expert. He would have been prudent to include the ACLU in his consultation. Lois Perrin, the organization's Hawaii legal director, says she is opposed to "this attack on First Amendment freedoms."