Magic Mike and the Illusion of Fair Rules in Public Urban Space

Compare the following statements. The first is from Judge Berzon’s majority opinion in Berger:

‘And, indeed, from “time out of mind,” public parks have been central to our constitutional heritage of open discourse. They provide an essential outlet to those who, for economic or other reasons, would not otherwise be able to participate in that discourse. Given the importance of these locales, we cannot countenance the views that individuals who choose to enter them, for whatever reason, are to be protected from speech and ideas those individuals find disagreeable, uncomfortable, or annoying.’[1]

The second, below, is from Chief Judge Kozinski’s dissent:

‘Citizens visiting the Center also have First Amendment rights: to enjoy the arts, music and programs offered there. Why should Berger be given a heckler’s veto over the public’s right to peaceful enjoyment of the park and that of other performers to attract an audience? Does the First Amendment really mean that citizens trying to enjoy a city park their tax dollars pay for must let themselves be browbeaten by Mr. Berger into giving him money for performances they don’t wish to watch? As Justice Breyer recently observed, “cities use park space to further a variety of recreational, historical, educational, aesthetic, and other civic interests,” and it is “perfectly proper” for cities for place “proportionate restriction[s]” on speech in order to preserve and coordinate these other interests.’[2]

The above statements are from Berger, a case heard in the US Court of Appeals for the Ninth Circuit, and concerned a case brought by a street performer – ‘Magic Mike’ Berger – against the City of Seattle. Berger alleged that recently enacted rules, which governed the use by street performers of the Seattle Center, an 80-acre public park and entertainment complex, violated his First Amendment rights to free speech. The rules required street performers to obtain permits before performing, set out specific locations in which performances could take place, permitted only passive solicitation of remuneration by street performers, and prohibited any communication by street performers or anyone else within thirty feet of visitors to the Seattle Center who are waiting in line, attending an event, or sitting in a spot available for eating or drinking.[3] 

Seattle.
Image by Daniel Schwen, used in terms of a Creative Commons Attribution-Share Alike 4.0 International license.

In the interpretation of disputes over public urban space, normative judgments are made which reflect particular visions of public urban space. Divergent values are ascribed to the importance and role of public urban space in facilitating, regulating, and repressing expressions of speech, protest, presence, and identity. Collectively, this creates a jurisprudence of public urban space, which in many instances does shape directly and indirectly how stakeholders appropriate public urban space. Judges are not merely interpreting the law, but in simplifying public urban space are engaged in a project of spatial legibility, which may not reflect how that space is experienced by its users.

Berzon’s approach could be interpreted within a commoning approach, which would recognize the shared nature of the Seattle Center: if there are rules to govern the space, these need to be agreed upon by actual users of the space, and should reflect how the space is used rather than how this use is imagined. By prefacing how the space is used, Judge Berzon looks beyond the rules governing the space, their impact on users, as well as who owns the space.

Kozinski’s approach, on the other hand, seeks to balance out what are perceived to be competing uses of public urban space, but does so by reference to the rules, and not whether Magic Mike’s conduct is actually harmful to users of that space. This approach, which privileges rules and the law above all else, a) assumes a certain neutrality in the content of those rules, and b) by prefacing the ordering of public urban space over its use, thereby positions the owner of the property upon which public urban space is located as the primary determinant of the rules: what these rules are, how they should be applied, and to whom they should be applied. Actual users of the space become a secondary consideration.

The International Fountain at Seattle Center.  Image by Joe Mabel, used in terms of a  Creative Commons   Attribution-Share Alike 4.0 International  license.

The International Fountain at Seattle Center. 
Image by Joe Mabel, used in terms of a Creative Commons Attribution-Share Alike 4.0 International license.

One can respond in two ways to Kozinski’s approach. First, spatial law (and rules) is never content neutral, but is designed to model a particular kind of behavior. This is not necessarily bad, but to assume the rules are the ‘right’ position simply because the rules are enacted fails to interrogate the content of those rules. This is precisely what Berzon does (she is not opposed to rules governing the Seattle Center), but which Kozinskis’ formalism dissuades him from doing.

Second, by prefacing the ordering of public urban space over its use, and thereby positioning the owner of the property as the primary determinant of rules, the use of public urban space is turned into an abstract, far-off notion. Public urban space becomes a network of land parcels in which the use of space is demarcated by a lands registry map, rather than its actual use. Thus, although Kozinski is inevitably drawn into how the space is actually used by its users (possibly because his dissenting opinion was a response to Berzon’s majority opinion), his approach is grounded in the city’s ownership of the Seattle Center, and their concomitant ability to delineate the rules of the space.

All very well, except this presumes a level of democratic accountability, which may not have had much time for Magic Mike’s concerns in the first place.

Musicians using the Seattle Center. Image by Joe Mabel, used in terms of a  Creative Commons   Attribution-Share Alike 4.0 International  license.

Musicians using the Seattle Center.
Image by Joe Mabel, used in terms of a Creative Commons Attribution-Share Alike 4.0 International license.

[1] Berger v City of Seattle 569 F.3d 1029, 1054 (2009).

[2] Id. 1062, quoting Pleasant Grove City v Summun 555 US 460 (2009).

[3] Id. 1034.

Thomas CogginComment