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Originally published Saturday, April 23, 2005 at 12:00 AM

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Judge rejects Seattle Center rules on buskers

Under the street-performer rules imposed by Seattle Center, "a latter-day Gene Kelly cannot sing in the rain," fretted U.S. District Judge James Robart...

Seattle Times staff reporter

Under the street-performer rules imposed by Seattle Center, "a latter-day Gene Kelly cannot sing in the rain," fretted U.S. District Judge James Robart in finding the center's busker rules unconstitutional.

In a 14-page ruling issued yesterday, Robart wrote that Seattle Center regulations that require buskers — or street performers — to obtain permits, wear identifying badges, confine performances to certain locations and refrain from asking for money violate the First Amendment.

"The street-performer permit requirement is a form of prior restraint, and thus raises First Amendment warning flags," Robart wrote.

The decision grew from a lawsuit filed by Michael Berger, a street performer who calls himself "Magic Mike." He asserted in the lawsuit filed in February that the Center trampled his constitutional rights by regulating his magic tricks.

Robart agreed. "The court accepts the city's evidence that some street performers have caused difficulty for Seattle Center patrons and tenants, but this is no justification for a ban on all street performers without a permit," he wrote.

"The city may have aimed the rules at performers like the plaintiff, but their reach is much broader. No matter how persuasive the lyrical urgings of Martha Reeves and the Vandellas might be, there is no dancing in the street in the Seattle Center, at least not without permission."

Center rules, which went into effect two years ago, also required an annual $5 busker license.

Seattle Center officials said yesterday they hadn't seen the ruling. "We'll sit down and read it with our representatives and find out what it's about," spokesman Perry Cooper said.

As soon as Berger heard about the ruling, he raced to the Center to perform, said his attorney Elena Garella.

"My client absolutely hollered with joy," she said. "It's been a long struggle for him, and he's been very disheartened by all the rules. Now he can go and have a good time with the people."

Berger, 57, has been performing magic and making balloon animals at the Center for years, but he said he's been harassed by Center security.

Last evening, he was squeezed into a Styrofoam SpongeBob SquarePants costume and back at his usual spot behind the Ferris wheel, twisting a pink balloon into a parrot for a passing customer. (The customer had asked for a SpongeBob balloon, but the notoriously curt Berger said, "Yeah, I don't really do those.")

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"You bet I'm happy," Berger said, finishing the balloon and reaching for a crumpled copy of the judge's ruling. He suddenly shouted to a bystander, "Do you have a permit to be here? Do you? Why should I?

"I've been telling them for years that they can't tell me not to be here. They messed with a guy who not only taught himself magic, but taught himself First Amendment law."

Gary Keese, assistant city attorney, said he hasn't talked to Seattle Center officials about the ruling and it isn't certain when it goes into effect. "The Center's going to have to assess this and how best to operate so it's a safe environment for everybody," he said. "The Center will have to look at the decision, figure out if there's some way to modify the system they have so it's both effective and complies with the decision, or appeal it."

Keese said the rules were adopted after entertainers began arguing with each other about who could perform where.

The Center set up 16 locations where buskers can perform, and they have to stay within 5 feet of those spots, Berger has said.

In his ruling, Robart wrote that the rules are not being evenly applied. "While one person cannot sing without a permit, 81 people wishing to congregate at Seattle Center to proclaim their political views can do so without concern."

The case focused on the definition of Seattle Center, whether it is a "traditional public forum," as Berger claimed, or a "limited public forum," as the city claimed. The judge sided with Berger.

He pointed out that city documents say the Center is "the nation's best gathering place" and a "gathering place and public space open to everyone."

Robart wrote that the Center can't restrict the places where buskers perform, require identification badges or restrict their ability to ask for money. "While a street performer cannot offer a meek oral request for a donation from passers-by, a beggar who does not perform can solicit Seattle Center visitors with relative impunity."

Garella, Berger's attorney, said the legal fight cost Berger about $25,000, money she hopes to collect from the city.

Berger said that if he received a large enough reimbursement, he'd like to use some of it to put up an awning so street performers could get out of the rain.

"They have rain protection at Pike Place Market," he said. "We should, too."

Susan Gilmore: 206-464-2054 or sgilmore@seattletimes.com

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