BERGER v.

CITY OF SEATTLE
Case Study

Word court: 856 words (excluding references)

Student name: Chan Juan

BERGER v. CITY OF SEATTLE

United States Court of Appeals, Ninth Circuit, 2008. 512 F.3d 582.
https://casetext.com/case/berger-v-city-of-seattle
Plaintiff
Michael James BERGER, a single man also known as Magic Mike
Defendants
CITY OF SEATTLE; Virginia Anderson, Director of Seattle Center; Michael
Anderson, Emergency Service Manager for Seattle Center; Ten Unknown
Employees/Officers, of the Seattle Center and the City of Seattle, all in both their
individual and official capacities
1. Summary
The Seattle Center is an entertainment "zone" in downtown Seattle, Washington, that
attracts nearly ten million tourists each year. The center encompasses theaters, arenas,
museums, exhibition halls, conference rooms, outdoor stadiums, and restaurants, and
features street performers. Under the authority of the city, the center's director issued
rules in 2002 to address safety concerns and other matters. Among other things, street
performers were required to obtain permits and wear badges. After members of the
public filed numerous complaints of threatening behavior by street performer and
balloon artist Michael Berger, Seattle Center staff cited Berger for several rules
violations. "Magic Mike" Berger, a balloon artist and frequent Seattle Center
performer, filed a lawsuit challenging the new regulations just outlined on the grounds
that they violate his First Amendment rights.
2. ISSUE
He filed a suit in a federal district court against the city and others, alleging, in part,
that the rules violated his free speech rights under the First Amendment to the U.S.
Constitution. Berger filed this complaint seeking damages and injunctive relief for
alleged civil rights violations.
In this case, the U.S. Court of Appeals for the Ninth Circuit considered whether
certain rules imposed on street performers by local government authorities satisfied

the requirements for valid restrictions on speech under the First Amendment to the
U.S. Constitution Did the rules issued by the Seattle Center under the city's authority
meet the requirements for valid restrictions on speech under the First Amendment?
3. Facts
The permit scheme is a reasonable response to the City of Seattle's need for order to
maintain the efficacy and desirability of Seattle Center for its citizenry and visitors.
These Rules are reasonable time, place, and manner restrictions on speech because
they are content-neutral restrictions that are narrowly tailored and leave open ample
alternative means of communication, if they burden all expression equally and do not
allow officials to treat different messages differently. In this case, the rules met this
test and thus did not discriminate based on content. The court also concluded that
the rules were narrowly tailored to promote a substantial government interest that
would be achieved less effectively otherwise. With the rules, the city was trying to
reduce territorial disputes among performers, deter patron harassment, and facilitate
the identification and apprehension of offending performers. This was pursuant to
the valid governmental objective of protecting the safety and convenience of the
other performers and the public generally. The publics complaints about Berger and
others showed that unregulated street performances posed a threat to these interests.
4. DECISION
The court determined that Seattles rules were content neutral and narrowly
tailored to promote a substantial government interest that would otherwise be
achieved less effectively. The court found in favor of the city and reversed the lower
courts ruling in the plaintiffs (Bergers) favor.
The U.S. Court of Appeals for the Ninth Circuit reversed the decision of the lower
court and remanded the case for further proceedings. "Such content neutral and
narrowly tailored rules must be upheld."

5. Analysis
In my view, a solicitation regulation is content-neutral if (1) the underlying purpose of
the regulation is not to suppress a particular viewpoint or any substantive idea; 8 (2)
the regulation, on its face, does not single out particular substantive content for
differential treatment; 9 and (3) the regulation does not single out a particular group. 10
In other words, if a solicitation rule applies even-handedly to anyone who solicits, it is
content-neutral.
However, from my point of view, because this particular regulation does more than
generally ban solicitation or regulate only the manner of solicitation. It singles out a
particular group that is defined, in part, by the medium through which they express
themselves and the substantive message they convey. It also requires more than a
technical evaluation of the general character of the communication. To enforce the
ban, an official must first determine whether the communication was a solicitation
(which would be a permissible content-neutral evaluation). The official must then
determine whether the solicitation was active or passive (also a content-neutral
evaluation). If the speech is an active solicitation, then the rule requires the official to
(1) determine who made the solicitation and whether that person is a street performer,
and (2) evaluate whether the active solicitation was made in connection with the street
performer's artistic expression or performance (as opposed to soliciting funds for
some other cause). As written, the rule targets only those involved in artistic
expression. In my view, it improperly focuses on who is doing the soliciting and for
what purpose they are soliciting, converting the rule into an impermissible contentbased regulation.

References

1. Justia Law, (2014). Berger v. City of Seattle, et al, No. 05-35752 (9th
Cir. 2008). [online] Available at:
http://law.justia.com/cases/federal/appellate-courts/ca9/0535752/0535752o-2011-02-25.html [Accessed 1 Dec. 2014].
2. Miller, R. (2013). Study guide to accompany Fundamentals of
business law. Mason, Ohio: South-Western Cengage Learning.
3. Miller, R. and Jentz, G. (2000). Business law today. St. Paul, Minn.:
West Educational Pubb. Co.
4. Ncac.org, (2014). Significance: Berger v. City of Seattle | National
Coalition Against Censorship. [online] Available at:
http://ncac.org/resource/significance-berger-v-city-of-seattle/
[Accessed 1 Dec. 2014].
5. Plainsite.org, (2014). Berger v. City of Seattle :: Court of Appeals for
the Ninth Circuit :: Case No. 05-35752. [online] Available at:
http://www.plainsite.org/dockets/24cddzana/court-of-appeals-for-theninth-circuit/berger-v-city-of-seattle/ [Accessed 1 Dec. 2014].