But critics call the appeals court ruling a blow to free speech
By PAUL SHUKOVSKY
Michael Berger -- aka Magic Mike -- whose balloon animals and sleight-of-hand tricks have been a Seattle fixture for almost three decades, can be regulated and even banished by Seattle Center, a federal appeals court ruled Wednesday.
The 2-1 decision by the 9th U.S. Circuit Court of Appeals upheld Seattle Center rules aimed at addressing territorial disputes between street performers and complaints about performers making too much noise, blocking access or aggressively seeking donations.
Berger, the dissenting judge and the American Civil Liberties Union called the ruling a blow to freedom of speech.
Entertainer Michael Berger lost his bid to curb Seattle Center restrictions on street performers when an appeals court overturned a previous verdict in his favor. He vows to appeal.
Berger sued the city and Seattle Center in 2003, challenging the rules as unconstitutional.
U.S. District Judge James Robart agreed, invalidating several portions of the rules, including one requiring buskers to wear badges and stay away from people waiting in line.
Robart awarded Berger $1 in damages and $22,000 in attorney fees, prompting an appeal by the city.
Two of the three judges on the appeals panel overturned Robart, saying the rules "further significant city interests, by keeping street performances from posing threats to the flow and convenience of Seattle Center patrons in heavily congested areas."
Seattle Center "authorities had the right to protect captive audiences (such as people in a ticket line) seeking to enjoy such functions without being forced to choose between enduring harassment and leaving the facility," the court held.
Seattle Center Director Robert Nellams said Wednesday he was pleased with the ruling.
"The campus rules that were put in place to ensure everyone's safety and comfort are fair and reasonable, and we are pleased that the 9th Circuit Court has reaffirmed their proper place," he said.
In a stinging dissent, Judge Marsha Berzon blasted Seattle Center for imposing "a raft of speech restrictions on park-goers and street performers. The Seattle Center has imposed a broad 'captive audience' rule which bans any speech -- artistic or political -- within 30 feet of a line of people, or even of people eating lunch in a seating area, because these groups are supposedly captive.
"There is no case anywhere, as far as I can tell, approving a speech-permitting scheme of this kind," Berzon wrote.
The rules "may seem innocuous, (but) 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," the judge added.