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Street performers cite
free speech at hearing

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By Debra Barayuga
Star-Bulletin

They're just not "Hawaiian" enough. They look tacky, particularly in front of upscale Gucci and Prada. They erode the image and reality of Waikiki. Those who enjoy them don't have "good taste."

But those are not good enough reasons to limit street performers by permit only to six isolated areas in Waikiki and only during certain hours, say opponents of a city ordinance.

"This is a case about everyone's rights to engage in core, protected First Amendment expression," said Brent White, American Civil Liberties Union attorney.

The ACLU, which filed suit in June on behalf of four street performers, is seeking a permanent injunction that would stop the city from enforcing the ordinance.

The ordinance was to have gone into effect July 12 but the city agreed to hold off enforcement until yesterday's hearing.

Circuit Judge Virginia Crandall today was to resume hearing witnesses who were to bolster the city's argument that the ordinance is appropriate.

The city contends the ordinance is "well crafted" and regulates only the location of performances, not speech.

"This is not a total ban on speech on sidewalks," said Jon Van Dyke, University of Hawaii law professor, one of two attorneys representing the city. "We have a content-neutral, time-and-place regulation of activities on the sidewalks."

And once a regulation is established content-neutral, it becomes constitutional if it serves important government interests, Van Dyke said. The city's interests in this case are to maintain pedestrian safety and promote ambiance.

While plaintiffs don't dispute the city's power to regulate street performers, "the city can't do so in a way that burdens more speech than necessary," White said.

The ordinance restricts anyone, not just street performers, under the guise of "safety," just because the Waikiki business community doesn't like the message the performers are spreading, he said.

The ordinance exempts city-sponsored performers who pose "exactly the same risk as street performers."

The sites designated by the city are no safer than where street performers now perform, and are even less safe, White said.

Only one site, King Kalakaua Park, is on one of Waikiki's two main thoroughfares. The other sites are on side streets, off Kalakaua and Kuhio avenues.

Peter Flachsbart, a University of Hawaii professor and expert on urban planning who counted pedestrian traffic around Waikiki and reviewed the city's designated sites, said there were other sites that were more appropriate.

While not all the street performers he saw in Waikiki were "high-quality acts," they "add to the vitality," of Waikiki, he said.