Street performers merit appeals court ruling


POSTED: Sunday, June 28, 2009

Mimes, jugglers and other entertainers on the sidewalks of Waikiki have gained deserved assurance that they can continue performing without government interference. An 11-member panel of the 9th U.S. Circuit Court of Appeals, with jurisdiction over Hawaii, has ruled that such activities are protected by the First Amendment.

Previous courts have decided that music and performance art are protected by freedom of speech, and the 9th Circuit panel ruled that such protections “;are nowhere stronger than in streets and parks.”; Any rules governing the activity must recognize that right.

The ruling came in a lawsuit brought by balloon sculptor Michael “;Magic Mike”; Berger against Seattle, which has rigid requirements for performers on the 80-acre Seattle Center, home of the iconic Space Needle. The rules have been suspended since a federal judge ruled in Bergercs favor four years ago.

In 2001, a federal judge in Hawaii struck down a city ordinance restricting street performances in Waikiki to six remote designated locations, calling them “;too few.”; City Councilman Charles Djou introduced a bill to ban all street performances in Waikiki in 2005, but it was dropped after Mayor Mufi Hannemann threatened a veto.

At that time, Hannemann suggested he would support a compromise bill that would regulate rather than ban performances. He proposed a limitation to six locations between 7 and 10 p.m. and a permit costing at least $20 a half year.

Such an ordinance would not likely satisfy 9th Circuit concerns. “;A permitting requirement is a prior restraint on speech”; and bears a “;heavy presumption”; that it is unconstitutional, the appeals court ruled.

In addition, Seattle required performers to wear badges displaying their permits while performing, limited performances to 16 locations and prohibited performances within 30 feet of a “;captive audience”; - those waiting in line for tickets or goods, being in an audience for a Seattle Center event or seated in cafe areas.

“;Passive,”; but not “;active,”; solicitations, were allowed, necessitating an officer's examination. “;How else would an officer determine whether a performer's tip-of-the-cap was accompanied by a permissible 'Thank you' or a prohibited 'Please give?'”; the court wondered. The court struck down the restriction.

Restrictions on sidewalk performers must be “;content-neutral,”; be “;narrowly tailored to serve a significant governmental interest”; and “;leave open ample alternative channels”; for the performances, the court ruled. None of the restrictions attempted suggested in Waikiki would have met those requirements.