Something Tells Us This Opinion Won't Stand

A sure candidate for en banc review hit the Ninth Circuit’s Web site this morning.

First, it was a 2-1 vote on a nitty-gritty free speech issue. Second, the dissent was a vigorous 21 pages. Third, one of the judges in the majority is from a district court, sitting by designation.

A split panel found that the City of Seattle didn’t violate the First Amendment when it enacted speech restrictions in a public area, namely, the Seattle Center, where the Space Needle is located. The city makes street performers apply for a permit and restricts the areas where they can operate. Moreover, any visitors to the Seattle Center are banned from artistic or political speech in certain “captive areas,” like dining spots.

Writing for the court in Berger v. City of Seattle, Circuit Judge Diarmuid O’Scannlain found that the city’s restrictions were content neutral, served a legitimate government interest, and allowed for sufficient alternatives for expression. U.S. District Judge Sam Haddon of Montana, sitting by designation, joined him.

“If the government can limit the religious expression of protesters on public sidewalks to promote the ‘privacy and self determination interest’ of women seeking abortions and abortionists,” O’Scannlain wrote in a footnote, “there is no reason it cannot legitimately protect others wishing to exercise their interest in private and public expression in intimate association with family and friends at a picnic.”

Circuit Judge Marsha Berzon dissented.

“The case concerns the Seattle Center, a public park — although the majority obscures this basic fact through a euphemism, calling the Center an ‘entertainment zone,’” Berzon wrote.

Seattle’s permitting restrictions in fact serve no legitimate governmental interest, Berzon wrote, and the majority’s ruling marks a radical shift in the court’s First Amendment jurisprudence.

“Although this particular permitting scheme may seem innocuous, the principle that American citizens ordinarily do not need government permission to speak in public places is a precious one, and one the majority entirely ignores,” she wrote.

Seattle City Attorney Tom Carr said the municipality is just trying to keep the peace between visitors to Seattle Center and street performers who have been accused of overzealously soliciting donations.

“As you can imagine, it can be difficult for a city to balance everyone’s interests and make rules that respect the First Amendment,” Carr said.

The city attorney said he has heard rumors that the ACLU will get involved in the case. Seattle lawyer Elena Luisa Garella argued for the plaintiff street performer, and could not be reached for comment.

—  Dan Levine