Street performer Josh Remington plays while two-year-old Helena Bache from Menlo Park dances to the music at the Third Street Promenade Friday afternoon. (photo by Brandon Wise)

DOWNTOWN — A recent U.S. appellate court decision ruling that a law regulating street performers in Seattle violates the First Amendment has prompted city officials in Santa Monica to evaluate the implications locally.

The Santa Monica City Attorney’s Office has been in close contact with Seattle city officials since the ruling came down on June 24, waiting for their next steps, which could be in the form of an appeal to the U.S. Supreme Court. In the mean time, local officials are reviewing how the decision would impact an ordinance requiring a $37 renewable permit for performers on the Third Street Promenade, Santa Monica Pier and Transit Mall.

The U.S. 9th Circuit Court of Appeals last week struck down a 2002 law that established new regulations for street performers in the Seattle Center, an 80-acre park and entertainment complex, requiring permits and restricting activity to designated spaces. The rules also allowed only passive solicitation, required performers to display a badge, and prohibited anyone other than Seattle Center employees from engaging in “speech activities” within 30 feet of where visitors were waiting in line.

A balloon artist and Seattle Center regular, Mike Berger, filed a lawsuit challenging the regulations on the grounds that they violated free speech protections. The U.S. District Court sided with Berger in 2005 and that decision was later appealed by the city of Seattle.

“The government bears the burden of justifying the regulation of expressive activity in a public forum such as the Seattle Center,” the appellate court panel said in its ruling. “The city of Seattle has failed to meet this burden with respect to any of the rules challenged by Berger.”

If Seattle officials decide to petition for Supreme Court review, Santa Monica City Hall could join in their efforts to urge judges to take the case and weigh in on the issue, Marsha Moutrie, the city attorney said.

Moutrie said the circumstances facing Seattle and Santa Monica are significantly different, especially considering that the former concerns a much larger open area. The case in Seattle also involves a public park, while in Santa Monica permits are not required for performances in those types of spaces.

“As it happens, performers choose not to perform in the park because there’s not an adequate concentration of people to make a living,” Moutrie said. “We don’t really have in the city a space analogous to the Seattle space in sheer size.”

The area where the court ruling could have an impact is whether City Hall can require a permit for performers, which the panel considered a prior restraint on free speech, Moutrie said

Performers seeking permits must fill out an application with their name, address, proof of identity, and detail of their act and instrument. The permits must be renewed every year and displayed during the performances. More than 500 permits have been granted this year.

The street artists also have to comply with other regulations concerning noise and spacing requirements, keeping a distance from other performers and maintaining safe circulation in case of an emergency. Moutrie said she doesn’t expect the court decision to have an impact on these regulations.

Ben Franz-Knight, the executive director of the Santa Monica Pier Restoration Corp., said issues concerning street performers are always “delicate” because it concerns one’s basic right to express themselves.

“The management of that is something we always take great care in doing and have developed over a number of years what many people would say is a complicated process,” Franz-Knight said. “But the essence of it is to ensure that everyone who wants to come out and express themselves in our public space has the most fair opportunity to do so.”

Some performers believe the local regulations for the most part are fair.

“Our process is pretty cool,” a dancer who goes by the name Brood J said. “Nine times out of 10, you get a permit.”

The street performer, who dances with the New Styles Krew, said he had a problem with a rule prohibiting flips.

“If we practice and train and rehearse all the time, why can’t we flip over each other?” he said.

David Smith, a musician who has been playing for nine years in Santa Monica, said that while he doesn’t have a problem with the permit requirement, he believes the promenade can get crowded with performances at times.

He said some artists monopolize the most desirable spots. There’s also the problem of neighboring performers drowning each others’ music out. Smith added that the noise regulations, keeping decibel levels below 97 between the hours of 9 a.m. and 7 p.m. on weekdays and 107 decibels between 7 p.m. and 10:30 p.m. on those evenings, are “ridiculous.”

But Smith said he’s had few problems with police officers who are out enforcing on the promenade.

“I’m mostly just grateful I get to be here and that we have this place,” he said.

Emma Trotter contributed to this report

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