9th Circuit Court of Appeals to Hear Case - Performers Rights - Freedom of Speech in Public Places

One of my first friends in Seattle, Magic Mike, is fighting for the right to perform in public here. You would think it wouldn't be such a big problem , but he is the one of the few Seattle street performers to stand his ground and say "I have a right to be here." The 9th Circuit Court of Appeals is going to listen to Bob Corn-Revere, his pro-bono attorney's arguement this year "en banc".

Mike send me this email today:

"----- Original Message -----
From: elena garella
To: magicmike@funandmagic.com
Sent: Tuesday, July 15, 2008 3:11 PM
Subject: finally some good news

You beat the odds and the 9th Circuit Court of Appeals is going to hear your case en
banc (all judges) the week of September 22 in San Francisco"
--------

I admire Mike, not just for his magic performances, but because he has a strong personality, and despite being physically harrassed in public, is standing his ground - for all of us. I hope none of us will have to endure such a pointed attack against freedom of speech.

Magic Mike's key statement "I'm really not for cutting their funding as the are great public facilities and organizations and should be supported. But the people managing them are neglecting the trust we put in them when they begin to think they own something private for their own agenda and ignore the the rights of performers who add to the native entertainment of society."

Here's more details -- from email -

----- Original Message -----
From: Corn-Revere, Bob
To: Magic Mike Berger ; Elena Luisa Garella
Cc: Shapiro, David
Sent: Tuesday, July 15, 2008 3:43 PM
Subject: RE: the tragedy that Seattle Center wants to evict and tear down the Fun
Forest

Mike and Elena--

I just received a voice mail from the Clerk of the 9th Circuit saying that rehearing
has been GRANTED. I have not yet seen the order, but will send a copy once we
receive it. According to the message, the argument will be scheduled in late
September.

Congratulations!

Bob

--------------------------------------------------------------------------------
From: Magic Mike Berger [mailto:magicmike@funandmagic.com]
Sent: Tuesday, May 27, 2008 2:13 AM
To: Elena Luisa Garella; Corn-Revere, Bob; Shapiro, David
Subject: Re: the tragedy that Seattle Center wants to evict and tear down the Fun
Forest

i might add on this memorial day that people died for those rights that are being
denied performers who give their heart and art to the public.

----- Original Message -----
From: Magic Mike Berger
To: Elena Luisa Garella ; Corn-Revere, Bob ; Shapiro, David
Sent: Sunday, May 25, 2008 9:22 PM
Subject: Fw: the tragedy that Seattle Center wants to evict and tear down the Fun
Forest

This reporter did a nice piece about my cases in the past. She wrote about the
festival today, that arrested me in 1993.

http://seattletimes.nwsource.com/html/localnews/2004437244_folklife25m.html

Today, they made a balloonist stop and take down his sign that listed "suggested
donations". They did that to me years ago, Even though they settled that they
still do it. For years the art museum had they same sign. Folklife had it today
too, "suggested donations $10". I took a photo. They can do it. When performers do
it, it's vending, without a permit, $5000 fine and one year trespass.

Magic Mike
www.funandmagic.com
http://funandmagic.com/performersrights.html


----- Original Message -----
From: Magic Mike Berger
To: cclarridge@seattletimes.com
Sent: Sunday, May 25, 2008 8:55 PM
Subject: the tragedy that Seattle Center wants to evict and tear down the Fun Forest

I have tried to get media, unsuccessfully, to address the tragedy that Seattle
Center wants to evict and tear down the Fun Forest, the only full-time amusement
facility that the general public has., or even that exists. They forced the owners
out by destroying the visitor traffic. Ask the guy in the gift shop across from
the monorail ramp. The dumb judges of the 9th called the Center an "entertainment
zone". HA !

And they attempted to tell the court they were NOT a traditional public forum, so
they can deny rights. Yet they have their hand out for the public's money.

Comments?

Magic Mike 206-675-8471
www.funandmagic.com
http://funandmagic.com/performersrights.html

Press release 3/12/2008 Magic Mike Berger
Seattle Center, the Seattle Aquarium, Pike Place Market, Parks and Recreation have
shown over the last 20 years that they are willing to dismiss people's rights

The city of Seattle is preparing to raise millions of dollars for Seattle Center,
Pike Place market and the parks. The SeattleCenter, the Seattle Aquarium, Pike
Place Market, and Parks and Recreation have shown over the last 20 years that they
are willing to dismiss people's rights and use these public facilities like
private property.

There is an onus to operate within the Constitution and the Bill
of Rights to the public usage if you get public funds, yet they have a history of
rights abuse, denial of due process regarding appeals, and privacy abuse. My other
lawyer, John Scannell has also documented sweetheart land deals and no-bid
contracts. Remember, they wanted to sell the Market to New York and the Center to
Disney.

They act like public entities when they want funding. Yet, Seattle Center,
Seattle Aquarium and Pike Market officials claimed to me and to all of the
people that protested that their rights were being denied, that the land was
not public property. The Denny family donated the Center land to the city to be
used as free public use forever.

The Center removed that statement from their website recently. When I tried to get the facts about their rule changes about performers and the official nature of the property and who owned it they refused to comply with my disclosure request. Then my lawyer, Elena Garella made the same public disclosure request without telling them she was working for me. She got a box full of hundreds of documents which showed that they had been working on it for years. They even stated in their rebuttals to my case in Federal court that they had gone through two years of planning.

Yet I was told there was nothing. They also claimed to the Federal Court that they were NOT a public forum space and not governed by the Bill of Rights.

Since 1987, the Seattle Center has made every performer leave unless they paid a $200/month vender permit or they be arrested, fined $5000 and trespassed! For years the parks department and the Seattle Aquarium director called the police any time a performer was in the waterfront Park. Pike Place Market regulates public sidewalks across from their building claiming they own it.

I received two criminal arrest citations at Seattle Center in April and July of 1993 and at the park by the waterfront in September and October of 1995 for performing
magic and making children balloon animals.

These citations were used to make me leave but were never called to court so I couldn't prove they were wrong. They knew they were wrong, but arrogantly did it anyway. Greg Youmen, the one man band with bird wings spent the night in jail for playing the Star Spangled Banner at the Bite Of Seattle. Jerry Brader was trespassed when a child touched a balloon at Folklife. Many other performers have been mistreated.

The late Walt Crowley sued for speech rights denied at the Seattle Center. My Center
permit was revoked without due process three times: for going through a stop
sign that was improperly placed; for using an explitive in a private
conversation; and for complaining they parked vehicles on performer spots.

Joe Foster spent the night in jail for playing a violin on the sidewalk at the
Ballard Seafest and other performers have been evicted from parks and
sidewalks. These are the only places new performers can hone their skills, such
as the Flying Karamozovs.

Seattle's is considered to be one of the highest taxed cities in the country.
If the people that run these organizations, the Seattle Center, the Pike Place
market, the Seattle Aquarium, and the parks department do not treat people's
rights as they should, why should they receive public money? You can read
details of these actions and court cases at my website,
http://www.funandmagic.com/performersrights.html

I'm really not for cutting their funding as the are great public facilities and
organizations and should be supported. But the people managing them are
neglecting the trust we put in them when they begin to think they own something
private for their own agenda and ignore the the rights of performers who add to
the native entertainment of society.

And it's hard to be a creative happy performer when you're constaintly being told you can't use the little publicly owned space that exists. I have been walking around entertaining strangers since I was 7 years old and I'm 60 years old. Many street performers of all types have quit. Many new ones might never start.

Stop by, say hello!
Magic Mike
www.funandmagic.com
http://funandmagic.com/performersrights.html
Press Release from Magic Mike - 1/31/2008


Magic Mike, Garella, Robert Corn-Revere, David M. Shapiro, Davis Wright Tremaine
law firm and ACLU petition the Court

Attorneys for Michael Berger, also known as Magic Mike the magician have filed a
petition in the ninth circuit Court of Appeals that asks all 15 judges of the
court for an en banc review of the recent decision to overturn Federal Judge
Robart's 2005 summary judgment that the Seattle Center rules were
unconstitutional. The petition filed yesterday in federal court by Magic Mike's
Attorney Elena Luisa Garella was joined by Robert Corn-Revere and David M.
Shapiro, both of the Davis Wright Tremaine law firm based in Washington, DC. Mr.
Corn Revere is well-known for his defending First Amendment rights. According to
Ms. Garella, ACLU has indicated they have approval to join in as amicus to the
court.

The case was heard by only three of the 15 judges, who ruled two to one in favor
of the city of Seattle to overturn, however the dissenting judge was strongly
critical of the decision. Circuit Judge Marsha Berzon in her descent of the two
majority judges.

“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,’” Berzon wrote.


Seattle’s permitting restrictions in fact serve no legitimate governmental
interest, Berzon wrote, and the majority’s ruling marks a radical shift in the
court’s First Amendment jurisprudence.


“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,” she wrote.

As for the description of being an entertainment zone, Magic Mike notes that
Seattle Center has given notice to evict the Fun Forest which must leave next year
and that according to the Seattle Center's own website, Mr. Denny bequeathed to
the city with the condition that it be used for "free public space forever".
Seattle Center administrators have repeatedly denied that it is a park, or city
public property, a traditional public forum when asked by performers the nature of
the land.

When Mike sent Seattle Center and the City a formal information request
months prior to the enactment of rules he was stonewalled and told there is
nothing to give him. Yet six months, later in a similar request, Ms Garella
received a box full of hundreds of documents showing that they had documents of
two years that they denied Mike so he could not get an injunction to prevent the
enactment of the rules.

Magic Mike claims that Seattle Center has it in for him because he stood up to
their attempts to make all performers become vendors. Magic Mike was featured in
newspaper stories and TV news features at festivals at Seattle Center from 1980 to
1987.

But in 1987 they started to tell all performers that they needed to
purchase a $200 a month permit, he called their bluff, and police refused efforts
by Seattle Center security to make him leave, saying that performing with a hat
that was not vending. Because he hadn't purchased a permit, in 1993 he was
arrested at the Folklife Festival for making children balloon animals. He and
another balloon artist were evicted, and two dozen clowns were threatened with a
$5,000 fine for illegal vending.

The Center claimed that balloonists gave out latex and face painters gave out paint, thus making them vendors. However after making them leave the festival they refused to give them their day in court and never pressed the citations. Then they did the same thing at that year’s Bite of Seattle. Details of abuse against performers can be found at Magic Mike’s webpage
www.funandmagic.com/performersrights.html

According to Ms. Garella, Corn-Revere saw the decision and was "shocked." He and
the firm are very motivated to get it reversed. Many legal professors and blogs
throughout the Internet have criticized the ruling as a reversal of the trend of
free speech. The Cal Law legal pad blog wrote an article with the headline
"Something Tells Us This Opinion Won't Stand".

Magic Mike claims that the center has distorted facts regarding the true need for these rules and has enforced the rules selectively, which is why the founding fathers felt that First Amendment rights should only be restricted with caution. After over 40 years without needing to disregard the Bill of Rights it seems excessive to say they are needed now. The photo IDs are also an invasion of privacy and the locations where people must stand do not sit well with performers like Magic Mike who has been a wandering magician for 54 years, since he was seven years old.

When Mike asked if he can move under a tree to perform when it's raining or hot instead of the location he was told he'll have to either decide to get wet or go home and at by not standing within 5 feet of a spot he would risk the revoking of his permit and one year trespass by the police department.

Magic Mike claims that the Seattle Center paints an untrue picture in order to cite a need which doesn't exist. According to Seattle Center rules, any vocal request by a performer for donations, no matter how mild, is aggressive. No one else that comes to the park is restricted except performers, not even aggressive panhandlers.

Elena Luisa Garella

927 N Northlake Way, Ste 301

Seattle, WA 98103

(206) 675-0675

(206) 632-7118 (fax)


Magic Mike
P. O. Box 31861 Seattle, WA 98103
(206) 675-8471
Details of abuse against performers can be found at Magic Mike’s webpage
http://funandmagic.com/performersrights.html

Photographer's Ethics in a Free Society, Why is this Case Important?

Here is a case of an artist, a photographer named Philip-Lorca diCorcia, using someones image without permission, and profiting by that, even though the subject of the photo asked the photographer to cease using the photo because it runs counter to his religious tradition. See case information: http://www.bigredandshiny.com/cgi-bin/frameset.pl?section=news&issue=issue40&article=STREET_PHOTOGRAPHY_AND_25151059 (Pardon the sticky site!)

Is this really what we meant by a free society, to not respect each other's wants and needs? How is the photographer informed by the law but not by belief? Where do people get the idea they have a right to take another person's image?

From a Boston based art/music community site:
http://www.bigredandshiny.com/cgi-bin/frameset.pl?issue=issue40

"New York State Supreme Court dismissed a case contesting the ethics of street photography and whether it violates the rights of those individuals photographed"

[the person photographed without his permission and against his will] "Nussenzweig, an Orthodox Jew, claimed that the photographer using his image violated his First Amendment right to practice his religion on the grounds that his image constituted an engraven image that was exhibited and consumed commercially. However, Justice Judith J. Gische said that Nussenzweig's claim to privacy was not valid, finding that diCorcia created the photograph for artistic purposes."

He may have done it for artistic purposes but he certainly did it for profit: "The photographer said multiple prints of Nussenzweig's picture sold for about $20,000 each. The picture also was published in "Heads," a book that sold several thousand copies, diCorcia said. (boingboing.net/2005_07_01_archive.html)

Law.com claimed that the photographer sold 10 copies of the image for 20K-30K each - no starving artist there. "As commerce, the picture would be subject to the restrictions set forth in New York's right-to-privacy laws; as art, it would not." (http://www.law.com/jsp/law/sfb/lawArticleSFB.jsp?id=1139565912319 )

In this case the photographer may have justified this as an act of free expression, but what if it was a photo of him? or his parents? What if he was doing something embarrassing? Does this justify the artist/photographer and any American's right to make money off another person's image without their permission? How far could this be extended? Could Nike or Levis or McDonalds run images of people on TV, say making fun of them without their permission?

While dismissing the case, Gische, the judge did say this: "Clearly, plaintiff finds the use of the photograph bearing his likeness deeply and spiritually offensive," she concluded. "The sincerity of his beliefs is not questioned by defendants or this court. While sensitive to plaintiff's distress, it is not redressable in the courts of civil law. In this regard, the courts have uniformly upheld Constitutional First Amendment protections, even in the face of a deeply offensive use of someone's likeness." ( http://www.law.com/jsp/law/sfb/lawArticleSFB.jsp?id=1139565912319 )

What if Nussenzweig had just said - I don't want others to make a profit off my image. One, stop producing images of me, or two pay me whatever you make, because I did not give you permission. But he didn't - he just said 'no'. Isn't that good enough?

Here's Nussenzweig's attorney quoted on the subject:
"We claim that to take someone's picture without their consent is bad enough," said Jay Goldberg, Nussenzweig's lawyer. "But to then hang the picture in galleries, put it in books and sell it around the city without telling the person or obtaining permission is unfair and outrageous."

Wouldn't it have been more ethical for diCorcia to just respect Nussenzweig's request? What if diCorcia decided to sell the photograph of Nussenzweig for an advertisment such as a billboard or use in a film? Why does it being art or in a public place mean that a person's image is not their own? How more deeply offensive can it be and still be justified as art or good practice -- can it still be art worth all this money and hold no concern for the living person?

Are there other examples of this, where something of yours is not yours because it is art or in a public in a free society? What about medical footage taken in a state hospital of a woman having a baby? Could that be run on television without her permission? Or does she have a reasonable expectation of privacy?

In this case I asked Jeff Stein - a student in the University of Washington's Informatic program, in the Info344 class, and he told me that he feels our culture prefers to honor the needs and values of commerce over the needs of personal privacy. He said this is especially true in public spaces.

Personally if he were asked not to use a picture of a person he had photographed he would honor the request. I would too. What is artistic about not honoring people. Isn't the lack of regard for their privacy doing violence to them by ignoring their request?

How is it that people will resort to the law in such an instance and not use their own belief system to inform them of what is respectful or reasonable?

As the BigRedandShiny.com article concludes:
"From this, therefore, we can conclude that artistic rights under the First Amendment trump freedom of religion, also protected under the First Amendment - at least when considering privacy laws within the civil courts of New York. "

What I find a sad twist of fact is when querying 'diCorcia', the photographer's name, in a local warm and friendly public search engine you will receive an image of Nussenzweig, probably many of them, as I did.

Why is this case important? It's important because our sense of ethical judgment tells us it isn't right, while the law says it isn't wrong.

Freedom of speech is closely tied to freedom of thought which trumps freedom of religion.