Today is the first day of fall. There are officially 100 days left in calendar year 2009.

This means that any day now there will be Christmas music streaming from the open doorways of the stores on the Third Street Promenade and the pervasive smells of cinnamon, pine and cloves will be wafting over the masses who will hopefully be clogging our parking structures and emptying our retail outlets. The promenade itself will soon undergo its annual transformation and become a “winter wonderland” — at least as much as we actually experience winter here.

I was strolling up the promenade this week with my dog, and as we navigated our way past the hordes of German teenage girls who were doing their best to execute an early blitzkrieg on the retail salespeople, we were assaulted by amplified musical performers every 40 feet. I’m a big fan of several of these performers. My friend Josh Vietti is a regular performer, who I am so enthralled with that I introduced him to another musician friend of mine, and they are now collaborating.

I buy the CDs of the performers I like and admire. I think they add tremendously to the atmosphere of the promenade, and to the city as a whole. We are, with all due credit to Harry Shearer, more than the “home of the homeless” — we are an artistic oasis in a desert of dullness.

As a community we have a strong commitment to bringing music, movies and live events to the public at free or low cost. Our ability as a city to push ourselves and be more than just a beach community is frequently on display. It was just two weeks ago that the Santa Monica Pier celebrated 100 years with a blowout bash, and some of the best fireworks that I’ve ever had the pleasure of seeing. I was lucky enough to catch them from the pool deck of the Loews Hotel. They were throwing a celebration party that was awesome — I had way too many mini-cupcakes.

So with all that said, I want to propose that the regulation regarding the proximity of the performers on the promenade is too close. It was very evident to me, as I walked up the promenade, listening to a duo play classical, whose performance was being stepped on by a man playing his guitar in a folk music style, which then ran right up against some dancers who were playing their music amplified, that as a consumer of this musical cornucopia, it was more annoying than pleasurable.

Free speech, which is what this would fall under, can only be regulated in very specific ways. It’s a tough topic to regulate, I know. There are fundamental rights at issue here. Cities are not allowed to pass regulations that would infringe on someone’s right to engage in free speech, nor are they allowed to regulate the content of that speech.

I spoke with two of the community service officers on the promenade about this topic. While they were sympathetic to my complaint, they explained that the topic is a thorny one, and also that the performers (which is how they referred to them, which bothers me, as that sounds more like this should be commercial speech — a different level of regulation) are expected to self-regulate themselves on distance and decibel levels.

I understand that the promenade is public space and it should be open to anyone who wants to speak. And it is, once they obtain a permit. I also understand that one of the charms of the space is that there is a selection of performers. I don’t want to make that go away, or infringe on people’s abilities to exercise their free speech rights, I just want them to do it further apart from each other.

I think it would be better for the promenade, and I think it would be better for the performers. When I want to stop and listen to the soaring violin of Josh Vietti, I don’t want to have his talent stepped on by a group of 20 something kids doing acrobatic dance moves to a boombox that has Michael Jackson wailing. I love both of those, but it’s kind of like putting ketchup on chocolate cake. They’re both awesome flavors, but they don’t go together.

I think a regulation that states that performers who use amplified music must be between two performers who are not using amplified music, or 100 feet apart, is a reasonable regulation that would pass constitutional review. It neither regulates content, nor is an unreasonable burden that would amount to prior restraint.

I like ketchup for my fries, and I love my chocolate cake.

Let’s keep them apart.

David Pisarra is a family law attorney focusing on father’s rights and men’s Issues in the Santa Monica firm of Pisarra & Grist. He can be reached at dpisarra@pisarra.com or (310) 664-9969.

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