Berger v. City of Seattle

BERZON, Circuit Judge,

dissenting in part and concurring in part:

“It is offensive — not only to the values protected by the First Amendment but to the very notion of a free society — that in the context of everyday public discourse a citizen must inform the government of her desire to speak to her neighbors and then obtain a permit to do so.” Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 165-66 , 122 S.Ct. 2080 , 153 L.Ed.2d 205 (2002). Today the majority endorses just such a scheme, requiring individuals to obtain permits from the government before they may engage in communicative activity. Worse, it does so in the context of a public park, a traditional public forum, with regard to which “the government bears an extraordinarily heavy burden when it seeks to regulate free speech.” A.C.L.U. of Nevada v. City of Las Vegas, 466 F.3d 784, 791 (9th Cir.2006) (internal quotation marks omitted) (“ACLU II”), because parks have, “time out of mind, have been *608 used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. C.I.O., 307 U.S. 496, 515 , 59 S.Ct. 954 , 83 L.Ed. 1423 (1939); see also Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 , 103 S.Ct. 948 , 74 L.Ed.2d 794 (1983).

Nor does the majority stop there: It goes on to declare that public park-goers, using this quintessential public forum, are a captive audience, justifying still more restrictions on speech. Yet, “as society becomes more insular in character, it becomes essential to protect public places where traditional modes of speech and forms of expression can take place.” ACLU II, 466 F.3d at 791 (emphasis added). The majority’s opinion, far from obeying this admonition, validates a regulation that prevents communication between citizens in a public park, making this case part of a “nationwide trend toward the privatization of public property,” id., transforming formerly public spaces into private, heavily-regulated domains.

The case concerns the Seattle Center, a public park — although the majority obscures this basic fact through a euphemism, calling the Center an “entertainment zone.” Indeed, Seattle Center, in the heart of Seattle, declares itself “the nation’s best gathering place,” and a “public space open to everyone.” Despite these boasts, the Seattle Center has imposed a raft of speech restrictions on park-goers and street performers. These restrictions were adopted, we are told, to reduce space conflicts between street performers and to reduce the frequency of incidents where performers behave abusively towards their audiences. Some of the Seattle Center’s regulations forward this substantial public purpose without unnecessarily burdening protected speech, see Ward v. Rock Against Racism, 491 U.S. 781, 791 , 109 S.Ct. 2746 , 105 L.Ed.2d 661 (1989) (internal quotation marks omitted), and I am willing to assume that these regulations are valid. But at least two of them go far further, working to turn the Seattle Center into a sterile theme park.

For the truth is this: Although one might think otherwise from reading the majority opinion, the permitting scheme the majority approves serves no discernible purpose whatever, other than to identify speakers to the government in advance of their speech. There is no limit on the number of permits, and although another part of the rule designates certain locations at the Seattle Center for street performers generally, the permits do not assign any particular location at the Seattle Center to any particular street performer. So there is simply no crowd or traffic control function served by the permitting scheme.

There is no case anywhere, as far as I can tell, approving a speech permitting scheme of this kind — that is, one applicable to single individuals and having nothing to do with allocating scarce public space among competing users. So, although this particular permitting scheme may seem innocuous, 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. I therefore dissent from Part III.A of the majority opinion, which upholds the permit scheme. Because a requirement that performers holding permits wear badges depends upon the existence of the permit scheme, I also dissent from Part III.B, which upholds the badge requirement.

That the administrators of the Seattle Center fundamentally misunderstand the nature of public parks is made even clearer by the park’s astonishing “captive audience” rule, which the majority upholds in Part III.E. The idea of ordinary park-goers as, in any sense, “captive” is deeply *609 offensive to the First Amendment. Yet, the Seattle Center has imposed a broad “captive audience” rule which bans any speech — artistic or political — within thirty feet of a line of people, or even of people eating lunch in a seating area, because these groups are supposedly “captive.” Worse, because the rule’s application depends on the particular location of the audiences it “protects,” the rule creates just the sort of system of “floating” speech restrictions, hard to enforce and harder to obey, that the Supreme Court struck down in Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357, 377-80 , 117 S.Ct. 855 , 137 L.Ed.2d 1 (1997). I cannot agree that this radical extension of captive audience law into a context in which it does not apply, and in a manner already held to be impermissible, is constitutional.

Only those parts of the Seattle Center’s regulations that merely channel speech to prevent conflicts between performers, and between performers and the public, are even arguably constitutional: A regulation designating first-come, first-served areas for street performances 1 and a ban on active solicitation. 2 I therefore concur only in III.C and III.D. of the majority opinion, which uphold those regulations. 3

I. The Permit Requirement

The majority’s description of the permit requirement is a triumph of misdirection, *610 upholding a speech registration scheme but relying upon cases that instead uphold much less troublesome systems of speech coordination.

In general, “the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the context of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication.” Ward v. Rock Against Racism, 491 U.S. 781, 791 , 109 S.Ct. 2746 , 105 L.Ed.2d 661 (1989) (internal quotation marks omitted). Under this standard, even in a public forum, governments may regulate to allow all voices to be heard through “coordination of use,” Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 , 1036 (9th Cir.2006)—by, for instance, ensuring that a parade does not march right through a street festival or unduly interfere with street traffic. Such “coordination of use” is, in other words, a significant governmental interest.

As the general time, place, or manner standard indicates, however, this authority to regulate speech is limited even when there is a legitimate coordination purpose to be served: “The government’s right to limit expressive activity in a public forum is sharply circumscribed” and our review is searching and careful. ACLU II, 466 F.3d at 791 (quoting S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1145 (9th Cir.1998)); see also Santa Monica Food not Bombs, 450 F.3d at 1035-36 (9th Cir.2006) (same); A.C.L.U. v. City of Las Vegas, 333 F.3d 1092 , 1098 (9th Cir.2003) (‘ACLU I”) (same); Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir.1998) (same); Grossman v. City of Portland, 33 F.3d 1200, 1204-05 (9th Cir.1994) (same). We are particularly skeptical of coordination permit requirements which are, after all, “prior restraint^]” on speech and therefore raise serious concerns over limits on spontaneous expression. Grossman, 33 F.3d at 1205 n. 9 (quoting Rosen v. Port of Portland, 641 F.2d 1243, 1250 (9th Cir.1981)); see also Santa Monica Food Not Bombs, 450 F.3d at 1052-53 (upholding some permitting requirements, but not others, applicable only to large groups of people).

But our usual careful inquiry into how well a permit system serves its coordination purpose cannot even begin in this case. For the Seattle Center’s registration scheme serves no coordination purpose at all. Instead, it serves only one purpose: To allow the government to know who is planning to engage in communication through street performance at the Seattle Center at some indeterminate time in the future. This “purpose,” such as it is, is not a permissible governmental interest at all, much less a significant one.

More specifically: The Seattle Center requires all street performers to obtain a permit from the Director of the Seattle Center, valid for one year, in order to perform. The permits have nothing to do with where or when the performance will occur. In fact, “[s]pecific performance times will not be assigned to a performer by the Center.” (Emphasis added). Instead, “[pjerformance locations are available on a first come first served basis.” “If the performer abandons the location, for any reason, the location may be utilized by another performer. Locations may not be ‘saved’ or ‘reserved.’ ” So it is the large number of well-located performance spots — a restriction which I am willing to assume is valid in this unusual context— that reduce performer conflicts over space. The permit requirement has nothing to do *611 with the space allocation effort, but is simply a gratuitous restriction on speech. 4

I am aware of no case — ever—that has approved a permit requirement in a traditional public forum where there is absolutely no coordination of use purpose. The majority has cited none. Given that speech registration is, by its nature, only justifiable if it serves a significant government interest, it is not surprising that such cases do not exist. Indeed, we have expressed profound skepticism of such permits even when they do serve a coordination purpose.

In Grossman , for instance, we struck down a permit requirement for demonstrating or gathering in parks in Portland, Oregon that was designed to “permit efficient time, place and manner regulation,” 33 F.3d at 1205 n. 9 (internal quotation marks omitted), and which required permit applicants to register seven days in advance of any gathering, “describing the details of the planned event” in their applications. Id. at 1204 . Although we “sympathize[d] with the City’s concern for the safety and convenience of park users,” we could not agree that this interest could justify the “substantial restrictions” inherent in a permit to speak. Id. at 1206 . “Both the procedural hurdle of filling out and submitting a written application and the temporal hurdle of waiting for the permit to be granted may discourage potential speakers.” Id.; see also N.A.A.C.P., Western Region v. City of Richmond, 743 F.2d 1346, 1355 (9th Cir.1984) (“The simple knowledge that one must inform the government of his desire to speak and must fill out appropriate forms and comply with applicable regulations inhibits speech.”); Rosen, 641 F.2d at 1249 (advance notice “drastically burden[s] free speech”). So, although the Grossman permitting scheme did, unlike the permitting rule here, purport to serve the significant governmental interest of coordinating the use of public space, the burdens it created were too large to be endured. 33 F.3d at 1208-09 .

We have taken these burdens very seriously: In Rosen , where the permit ordinance required only one day’s notice and advance disclosure of the name of the speaker, we struck it down, holding that the “interest in knowing in advance what type of free speech activities may occur ... is insufficient to justify an ordinance so broad in its application and with so chilling an impact on the exercise of *612 [F]irst[A]mendment rights.” 641 F.2d at 1249 .

The Seattle Center scheme is not only-unsupported by a governmental coordination interest; it also reaches individual speakers. 5 This reach alone renders it suspect. When we have allowed coordination permits it has been for large groups: “As the cautionary language in our earlier opinions indicates, the significant governmental interest justifying the unusual step of requiring citizens to inform the government in advance of expressive activity has always been understood to arise only when large groups of people travel together on streets and sidewalks.” Santa Monica Food Not Bombs, 450 F.3d at 1039; see also Grossman, 33 F.3d at 1206 (“Some type of permit requirement may be justified in the case of large groups, where the burden placed on park facilities and the possibility of interference with other park users is more substantial.”) (emphasis in original).

Conversely, we have never countenanced the imposition of permits for individual speakers in public fora. Indeed, the possibility that the ordinance in Grossman could reach “the actions of single protestors,” was one of the reasons we struck that ordinance down as unconstitutional. Id.; see also Cox v. City of Charleston, South Carolina, 416 F.3d 281, 285 (4th Cir.2005) (“[U]nflinching application” of a permit requirement “to groups as small as two or three renders it constitutionally infirm.”). 6

In brief, then, we and other courts have expressed deep skepticism that a permit can ever be appropriate when applied to small groups or individuals. We have never approved such a permitting scheme, nor has any other court, as far as I am aware. Yet, the Seattle Center adopted, and the majority upholds, a permitting program that does not have a use coordination purpose, that applies on its face to individuals, 7 and that imposes a prior restraint on speech with no purpose other than to make government surveillance and control of the speakers easier. 8 It is hard to think of a *613 more obviously unconstitutional measure in the First Amendment context.

The majority, nonetheless, relies on a few coordination cases to uphold this offensive registration scheme. Its cases, Cox v. New Hampshire, 312 U.S. 569 , 61 S.Ct. 762 , 85 L.Ed. 1049 (1941), Poulos v. New Hampshire, 345 U.S. 395 , 73 S.Ct. 760 , 97 L.Ed. 1105 (1953), and Thomas v. Chicago Park Dist., 534 U.S. 316 , 122 S.Ct. 775 , 151 L.Ed.2d 783 (2002), say nothing about speech registration. All three cases upheld coordination programs, not registration schemes. That these cases upheld permits actually serving a “time, place, or manner”-related purpose does not suggest that we should uphold a permitting program that does no such thing.

Cox, for example, upheld a permit requirement for parades, public meetings, and “theatrical or dramatic representation[s]” which required each permit application to “specify the day and hour” of the planned performance. Cox, 312 U.S. at 571 & n. 1, 61 S.Ct. 762 . The permits in Cox thus genuinely did regulate the “time, place and manner” of parades and demonstrations “in relation to the other proper uses of the streets.” Id. at 576, 61 S.Ct. 762 .

In Poulos, a coordination requirement was also at issue. See Poulos, 345 U.S. at 398 n. 2, 73 S.Ct. 760 (setting forth a “day and hour” coordination requirement for permits). Once again the Court upheld the rule, this time in the context of religious services, because the requirement “merely call[ed] for the adjustment of the unrestrained exercise of religions with the reasonable comfort and convenience of the whole city.” Id. at 405 , 73 S.Ct. 760 . 9

Thomas also considered a permitting-based coordination plan that conformed permitted activities with other uses and with general park purposes, see Thomas, 534 U.S. at 319 n. 1, 122 S.Ct. 775 (setting forth permit requirements), and upheld the permit requirement because it was designed “to coordinate multiple uses of limited space,” among other related purposes. Id. at 322 , 122 S.Ct. 775 . Thomas was decided quite narrowly and does not provide carte blanche for park permits, despite what the majority suggests. Most importantly, because the petitioners in Thomas challenged the ordinance in question only on the ground that it conferred allegedly over-broad permitting discretion, the Court did not consider other concerns that might be relevant here. See id. at 322 & n. 3, 122 S.Ct. 775 (“Petitioners do not argue that the Park District’s ordinance fails to satisfy other requirements of our time, place, and manner jurispru-dence_”). We have twice recognized Thomas’s limited scope. See Santa Monica Food Not Bombs, 450 F.3d at 1037 n. 15 (“Appellants here challenge the ‘other’ requirements of time, place, and manner jurisprudence, explicitly not at issue in Thomas."), Galvin v. Hay, 374 F.3d 739 , 747 n. 5 (9th Cir.2004) (“The Court in Thomas considered only a challenge to the breadth of official discretion” and not other issues.).

In short, the law is clear: Permits for speech in traditional public fora are disfavored and may be upheld only when they are tailored to serve a coordination of use purpose, including traffic and safety concerns, created by large groups of individuals engaging in First Amendment-protect *614 ed activity. Inconsistency with this long-established principle is enough to show that the Seattle Center’s rule is fundamentally flawed.

But there is more. The Supreme Court has consistently struck down speech registration permitting programs in the one context, solicitation of private homes, where they have been put in place with some regularity. There is no interest present here greater than those the Court deemed insufficient to support speech registration in that context.

In Watchtower Bible, for instance, a small Ohio village required solicitors to register before going door to door to prevent fraud, protect residential privacy, and prevent crime. 536 U.S. at 168-69 , 122 S.Ct. 2080 . The Supreme Court struck down the registration scheme because it imposed significant First Amendment burdens, including a heavy burden on spontaneous speech. Id. at 166-67 , 122 S.Ct. 2080 . Watchtower Bible was not the first time that the Court had struck down license requirements for solicitors on First Amendment grounds. See also Cantwell v. State of Connecticut, 310 U.S. 296, 306-07 , 60 S.Ct. 900 , 84 L.Ed. 1213 (1940) (striking down license requirement for religious solicitation); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 638-39 , 100 S.Ct. 826 , 63 L.Ed.2d 73 (1980) (striking down solicitation permit requirement); Schneider v. State of New Jersey, 308 U.S. 147, 152 , 60 S.Ct. 146 , 84 L.Ed. 155 (1939) (striking down permitting scheme for all forms of solicitation). Speech in public parks is no less protected than speech on citizens’ doorsteps. And the Seattle Center asserts no stronger interests than those forwarded in the house-to-house solicitation context.

That, as the majority notes, Maj. Op. at 594-95 n. 19, the permitting schemes in Cantwell, Schneider, and Village of Schaumburg had other fatal flaws does not alter the fundamentally “offensive” character of speech registration requirements. Watchtower Bible, 536 U.S. at 166 , 122 S.Ct. 2080 . As Watchtower Bible made clear in the context of political or religious speech, but with reasoning that surely extends to artistic expression, 10 even if the issuance of permits were purely a “ministerial task,” performed promptly and for free, “a law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition.” Id.

I note, finally, that even if registration to identify speakers were ever acceptable, it is, from a purely practical perspective, entirely unnecessary here. The rule targets street performers, not anonymous members of the public. Such people stake their careers on being readily identifiable, develop distinctive shows, and are frequent return visitors to their performance sites. It would not be hard for a police officer patrolling the Seattle Center to recognize a rogue fire-swallower. Indeed, incident reports in the record make reference to *615 such distinctive characters as a hula-hooping magician and “the puppet guy.” If Seattle Center officials are having trouble tracking down such easily identifiable characters, which I doubt, the solution is to pay more attention, not to do violence to the Constitution. 11

II. The “Captive Audience” Rule

Having simply ignored decades of First Amendment jurisprudence to uphold the permit requirement, the majority continues its radical rewrite of free speech law in public parks by upholding the Seattle Center’s so-called “captive audience” rule, Rule G.4, which imposes significant limits on speech to supposed “captives” using park facilities. If there is any audience that is definitively not captive — any group of people who the government has no obligation or power to shield from speech — it is the public in a traditional public forum. It is in such places that freedom of speech is at its height and is most zealously to be guarded.

That duty is particularly important now, when the very concept of public space is under threat. “If the trend of privatization continues ... citizens will find it increasingly difficult to exercise their First Amendment rights to free speech, as the fora where expressive activities are protected dwindle. ‘Awareness of contemporary threats to speech must inform our jurisprudence regarding public [fora].’ ” ACLU II, 466 F.3d at 791 (quoting ACLU I, 333 F.3d at 1097); see also Grossman, 33 F.3d at 1205 n. 8 (protection of parks as open fora is “increasingly significant now, when the extremely rich have an enormous variety of privately-owned media through which to reach the public” but persons of ordinary means must rely on free fora for public debate like the parks.). The majority displays no awareness of its duty to protect the traditional role of public parks, and still less awareness of the basics of captive audience law.

The Seattle Center bans all “speech activities” — defined to include “both political speech and commercial speech” — within thirty feet “of any captive audience,” or “of any building entrance” or “of any person engaged in any scheduled event that is sponsored or co-sponsored by Seattle Center.” “Captive” audiences are defined as including persons “waiting in line to obtain tickets or food or other goods or services or to attend any Seattle Center event,” or “seated in any seating location where foods or beverages are consumed” (a group which the majority assumes includes picnickers). None of these restrictions apply to “activity conducted by City employees or licensed concessionaires,” or pursuant to a “Seattle Center license or other agreement.” Members of the public waiting in line, having lunch, or sitting or standing anywhere near an entrance, are insulated from all speech, except that of the Seattle Center and of those it has allowed to speak. This prohibition is an extraordinary restriction on the use of public space.

First, as Berger argues, the city’s preference for concessionaires and licensees leads to the odd result that commercial speech, which receives more limited First Amendment protection than political and *616 artistic speech, is allowed and encouraged, while artistic and political speech is not. This result, alone, suggests profound problems with the rule. See G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064, 1081 (9th Cir.2006) (ordinance is invalid if it favors commercial speech over noncommercial speech); Desert Outdoor Advertising, Inc. v. City of Moreno Valley, 103 F.3d 814, 819-20 (9th Cir.1996) (same).

Worse, the very premise of the restriction is wrong. Public park-goers are not a protectable captive audience for constitutional purposes. “The plain, if at times disquieting truth, is that in our pluralistic society, constantly proliferating new and ingenious forms of expression, we are inescapably captive audiences for many purposes.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 211 , 95 S.Ct. 2268 , 45 L.Ed.2d 125 (1975) (internal quotation marks omitted). But only in “narrow circumstances” may the government restrain speech to protect such audiences; “the burden normally falls upon the viewer” to avert his or her eyes, or the hearer to cover his or her ears, not upon the speaker to be silent. Id. “The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.” Cohen v. California, 403 U.S. 15, 21 , 91 S.Ct. 1780 , 29 L.Ed.2d 284 (1971).

Yet the majority suggests that “Seattle Center Patrons” are captives because the “Seattle Center offers desirable facilities for public entertainment, relaxation, and edification” and that therefore it “had the right to protect captive audiences seeking to enjoy such functions without being forced to choose [between] enduring harassment and leaving the facilities.” Maj. Op. at 605. This argument is entirely back-to-front: The fact that people wish to gather in a park like the Seattle Center is precisely why protecting speech there is so important, not a justification for limiting it. Use of the parks for public discussion and gathering has “from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.” Hague, 307 U.S. at 515 , 59 S.Ct. 954 . “It must not, in the guise of regulation, be abridged or denied.” Id. at 16, 59 S.Ct. 954 . Declaring, as the majority does, that desirable gathering places must be insulated from speech turns this ancient proposition on its head.

The argument also has no apparent stopping place: Why individuals waiting in line or eating sitting down in designated areas are any more “captive” — or any more interested in staying in the park instead of leaving — than parents watching children in a playground, runners on a park track, or young people tossing about a frisbee in a park field, we are not told. 12

The short of the matter is that the possibility of objectionable speech in a public place is not a justification for limiting speech. See Perry Educ. Ass’n, 460 U.S. at 46 , 103 S.Ct. 948 (emphasizing the liberty of speech and discussion inherent to a traditional public forum). Public park-goers certainly have no “substantial privacy interest,” Cohen, 403 U.S. at 21 , 91 S.Ct. 1780 , that must be defended; they are in the public sphere. See also Lehman v. City of Shaker Heights, 418 U.S. 298, 303-04 , 94 S.Ct. 2714 , 41 L.Ed.2d 770 (1974) (advertising space on public street *617 cars is not a “First Amendment forum” like a “park,” and a streetcar “captive audience” is in a situation “different from the traditional settings where First Amendment values inalterably prevail.”). If a captive audience is to be found at the Seattle Center, such an audience could be found in just about any public park anywhere. For that matter, people walking down the street usually want to get where they are going; on the majority’s rationale, they would be “captive” also, because they have no choice but to walk from here to there. Any such result would be deeply at odds with our law, as it would swallow entirely the broad protection of speech in public fora.

But the majority does not only import captive audience law into a contejd in which it simply does not apply. It also relies on a wholly inapposite line of cases concerning the unique privacy and self-determination interests involved in protecting abortion clinics and medical facilities: The majority justifies upholding the captive audience rule by pointing out that the thirty-foot buffer zone the Seattle Center wishes to impose is about the same size as the buffer zone at issue in Madsen v. Women’s Health Center, 512 U.S. 753 , 114 S.Ct. 2516 , 129 L.Ed.2d 593 (1994).

The interests involved in Madsen , however, could not be more different than those we consider here. In that case, the Supreme Court upheld a state court’s injunction creating a 36 foot buffer zone around the entrances of an abortion clinic in which picketing and demonstrating, among other activities, were barred. Id. at 768-71 , 114 S.Ct. 2516 . The idea that park-goers are in any way similarly situated to the patients and doctors of an abortion clinic under siege by hostile protestors, is absurd. 13 The Supreme Court has made the distinctiveness of the interests at issue in such cases very clear. See Hill v. Colorado, 530 U.S. 703, 728-30 , 120 S.Ct. 2480 , 147 L.Ed.2d 597 (2000) (upholding 8-foot regulatory buffer around clinic entrances due to the “unique concerns that surround health care facilities,” where those using the facilities “are often in particularly vulnerable physical and emotional conditions”). 14 It trivializes the interests *618 carefully balanced in those cases to extend them in this way. Indeed, we have already rejected such a comparison in Kuba v. 1-A Agricultural Ass’n, 387 F.3d 850 , 861 n. 10 (9th Cir.2004), explaining that patrons of a “place of public entertainment” were not a captive audience as in Madsen and its progeny, because they were obviously not “particularly vulnerable,” as are the patients and doctors in such cases.

The majority nonetheless asserts that the First Amendment rights to intimate and expressive association- recognized by Boy Scouts of America v. Dale, 530 U.S. 640 , 120 S.Ct. 2446 , 147 L.Ed.2d 554 (2000) and Roberts v. United States Jaycees, 468 U.S. 609 , 104 S.Ct. 3244 , 82 L.Ed.2d 462 (1984) justify similar protections to those at issue in the Madsen line of cases. Maj. Op. at 606 n. 35. This argument is both rife with error and blind to the role of public parks as a location for interchange among citizens.

First, it is not at all clear that people “wishing to exercise their interest in private and public expression of individuals in intimate association with family and friends at a picnic,” as the majority puts it, even implicate the rights at issue in Dale and Roberts . Those cases concern two sorts of association: “Certain intimate human relationships,” Roberts, 468 U.S. at 618 , 104 S.Ct. 3244 , and expressive association “for the purpose of engaging in those activities protected by the First Amendment.” Id/, see also Dale, 530 U.S. at 647-48, 120 S.Ct. 2446 . 15 Picnickers do not fall naturally into either category (the majority appears to be melding the two when it refers to the “expression of individuals in intimate association”) unless Dale and Roberts are far more sweeping than they have previously been understood to be.

Second, the flat ban on communication at the Seattle Center is more extreme than the restrictions considered in the Madsen line of cases. In those cases, unlike here, there was a history of aggression justifying some speech restrictions. See Mad-sen, 512 U.S. at 757-59 , 114 S.Ct. 2516 ; Schenck, 519 U.S. at 362-65 , 117 S.Ct. 855 ; Hill, 530 U.S. at 709-10 , 120 S.Ct. 2480 . Yet, in those cases, where real and documented threats were present, the restrictions put in place were still narrower than the flat ban on all “speech activities” the majority upholds today. See Madsen, 512 U.S. at 760 , 114 S.Ct. 2516 (ban on “approaching any person seeking the services of the Clinic unless such person indicates a desire to communicate”) (emphasis added); Schenck, 519 U.S. at 366 n. 3, 117 S.Ct. 855 (injunction allowing sidewalk counseling “of a non-threatening nature”); Hill, 530 U.S. at 707 n. 1, 120 S.Ct. 2480 (ordinance barring approaching within eight feet of a person entering clinic “unless such other person consents”). Here, in contrast, the Seattle Center’s “captive audience” regulation would forbid a political campaign representative from offering a handbill to a consenting picnicker in an entirely benign — even silent — manner. Are we to suppose that such a phantom threat to picnic tranquility justifies more stringent controls on speech than those gingerly ap *619 plied in the Madsen line of cases? The majority defends a draconian solution to an undocumented problem with its strained reading of Dale and Roberts .

Most importantly, perhaps, the majority again forgets in its invocation of Dale and Roberts that it is a public park we are dealing with: As I have already discussed at length, the tradition of open discourse in such places is central to our constitutional heritage. There, the balance between the majority’s purported “right” to picnic in peace and lively, even raucous, speech has been struck in favor of speech since “time out of mind.” Hague, 307 U.S. at 515 , 59 S.Ct. 954 . The speech whose protection reaches its zenith in public fora extends beyond ideas capable of relatively precise, detached explanation to communication serving a more emotive function, including efforts to persuade, entertain, and elucidate through strong language, and to calls to honor, to disapprove, to shame, and to celebrate. See, e.g., N.A.A.C.P. v. Claiborne Hardware Corp., 458 U.S. 886, 910-911 , 102 S.Ct. 3409 , 73 L.Ed.2d 1215 (1982) (“Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action.”); Terminiello v. City of Chicago, 337 U.S. 1, 4 , 69 S.Ct. 894 , 93 L.Ed. 1131 (1939) (“[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”). The majority’s vision of a public park as a place regulated to protect the placid outings of “associating” citizens who are forbidden to engage in “speech activities” at all, lest someone be unsettled, is alien to the values instinct in the First Amendment, and to the entire public forum concept. Are two people chatting on a street corner in an “association” that can properly be protected by preventing a fellow citizen from offering them a handbill? Are picnickers on the National Mall in Washington, D.C., to be so “protected”? The majority’s reading of Dale and Roberts to create such a sweeping ability to protect “association” vitiates speech protections in all public fora locations.

Further, even in the abortion clinic context, where speech restrictions may be somewhat broader, the Supreme Court has struck down a captive audience rule that bears a marked resemblance to the one the majority upholds today. In Schenck , the Court considered an injunction which barred demonstrations within fifteen feet of any person or vehicle using an abortion clinic, id. at 367 , 117 S.Ct. 855 , and held that this “floating” buffer created an uncertain and over-broad system of restraints on speech. 519 U.S. at 377-80 , 117 S.Ct. 855 . As clinic patients moved, speech-restricted areas shifted across the landscape in an unpredictable and, in the Court’s view, unacceptable manner. Id.

The same problems are present here and are not leavened by the clear public safety issues present in Schenck . The Seattle Center’s captive audience rule applies within thirty feet of any line, any audience, and even any group of people having lunch in a seating area. Crowds move. As the end of a line shifts, or a picnic table is occupied, the captive audience rule snaps on to bar speech within thirty feet of the line or of the picnicking park-goers. This system of shifting “speech-free” zones is precisely the sort of capricious restraint, likely to chill far more speech than the Seattle Center would be justified in regulating, that Schenck struck down. 519 U.S. at 377-80 , 117 S.Ct. 855 .

By somehow finding a captive audience in a public park and then endorsing a buffer zone as restrictive as that struck down in Schenck , the majority turns the *620 law on its head. It does not simply abdicate its responsibility to safeguard the rights of the public but creates dangerous new legal principles that have no obvious stopping point. I cannot go along with this perilous course.

III. Conclusion

The majority does not acknowledge how radically its holdings alter our law, creating a legal structure which will make it far easier to shut down discourse in public parks and other traditional public fora. Democracies survive and grow through public conversations among their citizens. For this reason, we have always viewed any limitations on speech in traditional public fora with extreme skepticism. Today’s opinion departs from that long tradition. I respectfully dissent.

. It may be that there could be valid as-applied challenges to this rule. “There is a strong First Amendment interest in protecting the right of citizens to gather in traditional public forum locations that are critical to the content of their message, just as there is a strong interest in protecting speakers seeking to reach a particular audience.” Galvin v. Hay, 374 F.3d 739, at 749-53 (9th Cir.2004). Because the "location of speech, like other aspects of presentation, can affect the meaning of communication and [therefore] merit First Amendment protection,” id. at 751 , the fixed performance locations could impair the meaning of some performances designed to be seen in particular areas of the Seattle Center. The present plaintiff, however, brings no such as-applied challenge.

. Even the active solicitation regulation is somewhat constitutionally suspect. In ACLU II, we held that it is "beyond dispute that solicitation is a form of expression entitled to the same constitutional protections as traditional speech” and struck down a solicitation ban in Las Vegas. 466 F.3d at 792 . We held that Las Vegas's total ban on “messages that contain soliciting content” was a content-based restriction. Id. at 795-97 . Doing so, we approvingly quoted Justice Kennedy’s concurring opinion in International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 , 112 S.Ct. 2701 , 120 L.Ed.2d 541 (1992) ("ISKCON ”) in which he explained that if a "solicitation regulation prohibited all speech that requested contribution of funds” he would strike it down. ACLU II, 466 F.3d at 795 (quoting ISKCON, 505 U.S. at 704 , 112 S.Ct. 2701 ) (Kennedy, J., concurring). Because I understand the Seattle Center’s regulation to ban only certain aggressive manners of donation requests, rather than requests for donations generally, and because I believe the Seattle Center has demonstrated that the regulation narrowly addresses its problems with aggressive solicitation by street performers, I concur, albeit somewhat dubiously, in upholding this regulation.

.I do not concur in Part IV because the majority’s holding is partially premised on its conclusion, which I reject, that the permit requirement (and its associated badge requirement) do not violate the First Amendment. See Maj. Op. at 606-07. I agree, however, that street performers are not a suspect class for the purposes of the Equal Protection Clause, see City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439-42 , 105 S.Ct. 3249 , 87 L.Ed.2d 313 (1985) (discussing suspect classes). Although the permit requirement does burden a fundamental right, it is not a "class-based denial of a particular right,” Plyler v. Doe, 457 U.S. 202 , 217 n. 15, 102 S.Ct. 2382 , 72 L.Ed.2d 786 (1982) (emphasis added) and so does not implicate equal protection. I also agree with the majority that, because the active solicitation bar and location designation rule do not violate the First Amendment, they also do not violate the Equal Protection Clause.

. On its face, the rules apply very broadly indeed. The Seattle Center's rules define a "street performer" as "a member of the general public who engages in any performing art or the playing of any musical instrument, singing or vocalizing, with or without musical accompaniment, and whose performance is not an official part of an event sponsored by the Seattle Center or by a Seattle Center licensee.” Protest songs, playing the guitar at a picnic, even whistling, are swept up into this broad requirement. Reading the text of the rule, I would have no difficulty holding that the rule is unconstitutionally overbroad. But Seattle urges us to read the definition far more narrowly than its text, to apply essentially only to professional street entertainers and buskers. While "it is common to consider a city's authoritative interpretation of its guidelines and ordinances ... [t]o affect the constitutional analysis, such a limiting construction must 'be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice'.” Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 , 1035 (9th Cir.2006) (quoting City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 770 , 108 S.Ct. 2138 , 100 L.Ed.2d 771 (1988)). There is no such binding construction or textual incorporation of the city’s asserted limits here, and it is not obvious to me that well-established practice at the Seattle Center indicates that the broad text of the rule has been so limited. Still, the majority thinks so; I am willing to go along because the rule cannot survive even with that narrowing construction.

. The two features are, of course, closely related. Only large groups of people in public parks and on public streets create a need for coordination of uses of public space.

. The majority badly misreads Charleston, Maj. Op. at 593 n. 14, holding the case irrelevant because it did not "announce a numerical floor below which a permit requirement cannot apply.” Charleston declined to do so because it felt that writing a hard rule was a legislative, not a judicial task, not because it countenanced permits for individual speech. Charleston, 416 F.3d at 286 . The court was very clear that a permit ordinance attaching to small groups of individuals would be over-broad. See id. (collecting cases). It emphasized that any "legislative body” crafting a permit requirement “should tailor that requirement to ensure that it does not burden small gatherings posing no threat to the safety, order, and accessibility of streets and sidewalks.” Id. at 287 .

. Although street performers do, of course, hope to draw crowds, this goal is of little moment to the analysis. The individual protestors in Grossman and Charleston also undoubtedly hoped to attract crowds of people eager to learn their views. We have, in any event, emphasized that coordination permits are only appropriate for far more substantial crowds than any street performer is likely to draw at one time. See Santa Monica Food Not Bombs, 450 F.3d at 1043 n. 17 ("Whether 150 people is the outside [lower] limit for a permitting requirement is a question we do not decide, except to caution that a substantially lower number may well not comport comfortably with the limited governmental interests at play in public parks and open spaces.”).

.That the Seattle Center does not require a permit for each separate speech act but one permit to cover a year’s speech does not ameliorate these concerns. Permit issuance is not instant and, even if it were, anyone who wishes to spontaneously perform in the park must seek out the permit office (if it is open) and fill out forms before they speak. The *613 absence of a specified waiting period does not alter the practical reality that every permit application system imposes some delay.

. I note that Cox and Poulos both antedated the development of the modem standard for approving time, place, and manner restrictions in public fora, and may not be fully controlling after that development.

. Just as door-to-door canvassing plays an "important role in our constitutional tradition of free and open discussion,” Watchtower Bible, 536 U.S. at 162 , 122 S.Ct. 2080 , so too does the use of public parks for artistic and creative endeavors (which may also often include political content) have deep roots: Parks are classically thrown open to public expression. See Perry Educ. Ass’n, 460 U.S. at 46 , 103 S.Ct. 948 (1983). For this reason, the majority’s claim that Watchtower Bible is inapposite because street performing is not as important as religious and political canvassing, Maj. Op. at 594, is not persuasive. And the majority's "most important! ]”, id., distinction — that the ordinance in Watchtower Bible "bore no relation to the municipality's stated purposes” while the permit requirement is closely related to government interests — makes little sense. The permit requirement here in fact shares the problems discussed in Watchtower Bible .

. As the majority notes, Maj. Op. at 592 n. 13, the Seattle Center's badge requirement is intimately connected to the permit requirement: The permits are to “be evidenced by a badge that shall be worn or displayed by a performer in plain view at all times during a performance.” Because I believe that the permit requirement itself is unconstitutional and because no badges will be issued without permits, I have no need to decide whether an independent badge requirement in this context would be constitutional. I therefore do not concur in Part III.B of the majority opinion, which upholds the badge requirement, premised largely on the supposed constitutionality of the permit requirement.

. Moreover, as I discussed above, citizens are very often not free from solicitation and pamphleteering in their own homes, yet government restrictions on such activities are frequently invalidated. See Watchtower Bible, 536 U.S. at 160 , 122 S.Ct. 2080 and n. 10 (collecting cases striking down permit requirements for door-to-door solicitation).

. Even the process by which the buffer zone was designed and upheld in Madsen is entirely distinct. In Madsen , abusive abortion protesters were forcing doctors and patients to run a "gauntlet” to enter an abortion clinic. 512 U.S. at 758 , 114 S.Ct. 2516 . A district court imposed a narrow injunction to curb the illegal behavior, which failed to solve the problem. Id. at 758-59 , 114 S.Ct. 2516 . Only then, after more speech-protective remedies had failed to cure the illegal activity, did the district court impose the broader injunction that the Supreme Court examined. Id. What we have here is not an injunction imposed after illegal behavior but a prophylactic rule that applies to perfectly law-abiding individuals.

Moreover, the Supreme Court in Madsen upheld the buffer zone, created by the broader injunction, based on the particular geography of the clinic, 512 U.S. at 769 , 114 S.Ct. 2516 , giving "some deference” to the state court’s familiarity with the situation, and noting that the earlier, "much narrower” injunction had failed to protect access to the clinic. Id. at 770 , 114 S.Ct. 2516 . The injunction had been fitted to the particular circumstances, and in a context where reproductive rights, public safety, and medical privacy all weighed in the balance. Id. at 768-69 , 114 S.Ct. 2516 . Those important considerations are not at issue here, and there is no evidence that the thirty-foot buffer zone has been carefully tailored to the particular geography of the Seattle Center.

. Nor does the fact that Kuba, 387 F.3d at 863 , struck down a 75-foot buffer zone on speech around an exhibition hall's entrance, along with other restrictions, have much bearing. The majority seems to think that because the thirty-foot rule here is smaller than the 75-foot rule in that case, it is somehow more acceptable. Kuba provides no support for this proposition, as it did not address whether a smaller buffer zone would have been acceptable.

*618 Also, context matters when analyzing speech restrictions. If, for instance, a five foot buffer put speakers on the other side of hedges, or down hills out of sight, it might well be unacceptable. See id.., 387 F.3d at 861-63 (carefully analyzing the relevant geography of the site at issue in that case).

. It is also worth noting that neither Roberts nor Dale are concerned with protecting such associations from other private parties but instead deal with “undue intrusions by the State.” Roberts, 468 U.S. at 618 , 104 S.Ct. 3244 ; see also Dale, 530 U.S. at 647-48 , 120 S.Ct. 2446 .