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Donate in my tip jar or to Magic Mike Berger PO Box 31861 Seattle, Wa 98103. This case sets precedent for other 1st
Amendment cases!
12 years ago...
Magician Makes Law Disappear
Friday, October 3, 1997
Christine Clarridge
Seattle Times Staff Reporter
"Magic Mike" Berger said all he ever wanted was for people to walk away from his street performance with a sense of awe, a smile and maybe even a balloon animal.
And if someone wanted to make a donation, well, that was fine. He said it's his right to perform with his hat out, and apparently, the city of Seattle reluctantly agrees.
In a mediation hearing yesterday, the city agreed to pay Berger $6,500 and to issue a memorandum guaranteeing the right of street performers to perform for donations.
"This decision shows I was right and will help other street performers even if I never perform again," said Berger.
Magic Mike in
SpongeBob costume
Magic Mike at
Seattle Center
Magic Mike at
birthday party
Magic Mike in
Seattle Times 1995
Magic Mike Bumbershoot
KSTW-TV Seattle 1991
Magic Mike on
KIRO-TV Seattle 1983
Magic Mike on
KING-TV 1980
Magic Mike in
Seattle Weekly 1980
MagicMike KOINTV2
Portland-1979.wmv
MagicMike Eugene
KVALTV-1979.wmv
Eugene Register Guard 1979
Eugene Register Guard 1979
Eugene Register Guard 1979
...Traditional public for a - has, as a principal purpose, the free exchange of ideas. Classic examples are sidewalks, streets and parks. Such for a "have immemorially been held in trust for the use of the public and, timeout of mind, have been used for purposes of assembly, communicating thoughts between citizens and discussing public questions." Hague v. Committee for Indus. Org., 307 U.S. 496, 515 (1939).
I was one of the people that started the birth of FM Radio as you know it today!
In 1968, and won a Group W internship scholarship to KDKA-TV in Pittsburgh. Four days after I arrived there in the news department, Martin Luther King was shot. I was picked to drive CBS Dick Threlkeld to interview angry crowds day and night for a week. After that, I breezed thru the other nine departments in one week and told them I wanted the last eight weeks in the promotion department. After I graduated I wrote three TV stations and said, "Dear Sirs I am the person you are looking for." and the NBC-TV affiliate made the youngest promotion director in the country. In 1972, I had visualization that I would meet the Dalai Lama. After seven years crisscrossing the country and starting new FM radio stations playing rock blues and jazz, I drove to Seattle, got out of my car and met him. I joined the Tibetan monastery and started performing magic on the streets with my hat out. I started studying at the law library when they began to harass me in the parks in 1987.
from Real Change Newspaper- Dec 31, 2008
"Balloonist
and magician Mike Berger sued the city over the
What’s at stake, in terms of the right to free expression, in the judges’ decision?
“This
fight benefits all performers
and all people who go to public places.
People
from out of town, who have
never seen a busker, think performers get paid; they don't even think
to give
you a donation unless you ask. And doing anything to indicate you need
or want
some money is a violation of their rules.
They
put these rules in effect just to
have a tool to get people out — so they don't have the same level of
probable
cause that you'd have to give to a policeman. There were already rules
on the
books on illegal actions in public spaces, but they wanted to have
something
they could use fast and furious.
And
these places get our tax money. If
they're not a public forum, why do they need public money? If you're
taking
money you have to act in a manner that's in accord with the
Constitution.
I've been fighting this on my own. The depression it causes me is
really
un motivating, and you have to be motivated to perform. This is the
seventh time
I've had to take the city to court, and I can't afford the medicine to
alleviate the conditions that developed from the stress of the
lawsuits:
diabetes, psoriatic arthritis in my feet and toes, insomnia, and manic
depression. I am behind in my rent and facing eviction. I haven't been
able to
work for the last two weeks because of the weather. And Pike Market
refused me
a permit; they say there are only four balloonists allowed, which is
prior
restraint and regulating content. They're my next case.”
Magic Mike's web site details his struggle over freedom of expression in public space that started in 1987. You can make a donation."
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Seattle never gets it. After this arrest, below, the
first of two in 1993, they settled with me in a Federal mediation, paid
me off and promised not to do it again. But we had two more in 1998.
They settled by Federal mediation. And guess what? They did it again in
2003. They settled with me but reserved the right to appeal the
decision to the famous 9th Circuit Court of Appeals. So the case has become a landmark Rights case in the textbooks. They try to pretend that
this arrest and the one 3 months later never happened. Scroll down.! MagicMike_FolklifeFestival_arrest KIRO-TV7Seattle1993 HE PUT HIS HAND ON HIS GUN! |
In 1996 I tried to get licenses and permits from the City and Parks Department. They didn't have licenses and permits for performing and engineering wouldn't give a street use permit for it. So it was outside the system. Sheehan was blowing blue smoke and the paper inhaled.
But they rarely quoted me, or asked my side of the story before publishing the City's propaganda. Now, he is a City attorney who is either ignorant of the law and doesn't know that performers accepting money in a hat is protected 1st amendment rights, as is the performance,
... - or he is blatantly lying. What do you think? Why do you think there are lawyer jokes? I know I'm a big guy, but he can't tell the difference between me and a Boeing 747 and its tens of thousands of employees. I get a dollar donation and they get billions. hmm. Can't tell the difference. And why wouldn't they prosecute me on the FOUR criminal citations they gave me on public property, and let a judge decide who was right!! Because I was!
And the people that complained I was vending wasn't the public, but the Seattle Center and Folklife officials and the balloon company that had a concession. They were trying to put commercial rights over people's rights. I just found a flyer someone was giving out in 1993, showing that every performer was threatened. The tried to make everyone think it was all an issue about ME! It's people, organizations, officials, and businesses like this that abuse our freedom of expression, that The Bill of Rights is to protect us from.
You should stand up with me and say "No!"
If you know who made this flyer call me! - Magic Mike - Magic Mike
Act One - Get people to stop and watch.
My statement before Federal Judge Robart:
I am the plaintiff Michael Berger, and the case before the court. I am competent to testify and I make this declaration upon personal knowledge and belief. I found out over the summer of 2002 the Seattle Center was planning rules that would require ID permits of street performers limit them to specified locations. I decided to try and find out what they were planning in order to file an injunction because I was sure that what they were planning was unconstitutional. I started to undergo a lot of stress, anxiety, and sleepless nights, as I experienced difficulty in getting the Seattle Center to provide me with the information of my public disclosure request, which I believe I filed legally, and in a manner to resolve what was sure to be a problem.
After two months, they still had not provided me with any details about their plans and just mailed me the current 2002 rules. When I complained in January of 2003 to the head of security, that the upcoming rules would discriminate against performers and that the Center better follow the law, I began to get harassed the very next month by Center security.
In February 2003, I was told that because I had warned them about following the law that I would have to follow all the rules now. That warning was conveyed to me by Seattle Center security guard Gary, who refused to allow me to perform under some rain shelter where others had huddled. In March they said that the place I performed at for four years was not an approved spot now. In April after I got my permit, after the rules had been enacted, the permit was suspended under questionable reasons. They said I went thru a stop sign when I drove in to drop off my equipment and my magic equipment was seized without notice while I parked, even though I had two people watching. I was given no warning, notice, news, or receipt of this and thought all my show had been stolen. I had two children parties the next day and I thought I would be unable to perform, lacking money to replace my show. This seizure and suspension bothered me mentally for months.
In May of 2003 I found that vehicles were being parked on performer spots. My complaints were ignored all year. I took photos many times of this. This bothered me too. I was told to move a few feet, closer to designated locations on occasions, when other people were never told to do so. I was asked to leave the grounds for private conversations. I was told to leave because I had left my permit home one day. I was forced to move from a valid spot, and told to go inside the Center House, so a festival client wouldn't see me 100 ft. away. But it was sunny and more people were outside.
All of this harassment took its toll on my psychological well being, causing me much suffering and depression. By the end of 2003 my depression was overwhelming me. My physical appearance deteriorated and my financial sources deteriorated. Many days I found myself in a status of being unable to function. Sometimes I would try go perform, but not be able to make it out of the house even though I was fully dressed with all my equipment. Sometimes I would leave the house to find that I couldn't bring myself to go and perform and I would come back and sleep.
My diet became very bad, binge eating, and in December of 2003 I was told I now had diabetes, which scared me. My psoriasis increased 25% with dozens of new eruptions, in areas in my legs, back, and feet where there had been none for years. The psoriasis has gone internal, causing bone nodes of a form of arthritis so I couldn't’t bend my toes and they hurt at night in bed. All of this exacerbated my mental and physical condition.
I had an abhorrence of performing at Seattle Center by then and even discussing it or dealing with the case became a mental block. Their rules and restrictions weren't' part of my character. The things that they tell me I can't do are part of what I have been doing for over 20 years. And it made me mad that I should be discriminated against, because I am voluntarily expressing myself when I voluntarily come to the Center to visit. They have made me feel like I am an employee, capable of being hired and fired.
When I complained again in February 2005 that parking on performer spots was still happening, I was excluded from the grounds on the fake assertion that I had caused a commotion by asking security guard Winters to do his job. But performer Marvin Brost was within 15 feet and denies the officer's claim.
I'm taking my medication in trying to function as best possible, and bring this case before the court in a manner that deserves its importance.
If the City had replied to my disclosure request in 2002, instead of NO information, and sent ME a whole box of documents like they sent Ms Garella, the lawyer I found, six months later, I might have been able to gain an injunction. But they made sure I had NO info until it was enacted. Our previous settlement in 1996 (see the other four cases, below) said the city would not treat performers like vendors, and that is exactly what they did again, and I feel they are in contempt of the Federal settlement for 1996 and 1998. The Center tries to build a case for order and prevention of conflict. They are not interested in that. Their meeting notes showed they just want a tool to remove whomever they want. And they will hassle them until they get a chance to revoke their permit. They have shown that they are ready to use and abuse their new power.
They have constantly distorted the facts. They said in the 1993 case that people complained I was vending, but it was Center personnel that claimed that, not visitors. They claimed that rules were needed because of disputes. But all disputes between performers were settled with common sense. That's not a reason to thwart the Bill Of Rights.
In 1996 I had to drop my case because the City had a legal out. The police hadn't been trained yet in 1993 since 1991 laws. If police need to be trained, what chance is there that egocentric security guards won't abuse the rules? They do not have the review police do. And, they don't resolve problems they create them, by selective enforcement.
.
They claim the rules are content neutral, but for years they threatened and put pressure on only magicians, clowns, and mimes that made kids balloon sculptures. You might wonder why. It was because their venders claimed we made money without paying rent. Their City attorneys even claimed I was as commercial as Boeing! Yet there is proof this was done to appease the rent payers.
Before the rules it was simple when a performer needed to adjust for another performer or CARS PARKED ON SPOTS. Now the performer has to find a whole new spot to play at. Also the people monopolizing the SOLE spot by the Space Needle threatened me mortally twice. When I reported it to security they said report it to the police and refused to act on it OR WRITE A REPORT ABOUT IT. If I have to go to the police, then existing laws are all we need.
Other performers have been threatened by the same people also. When I complain about a problem they add that instance as part of their tally of complaints involving ME. As for crowd control blocking a 40 foot wide street, there is no traffic. Also it is ironic that counsel has pointed out flame and sword jugglers. I tried to see if Center security would react to an unlicensed flame juggler blocking the entire street for 45 minutes at a time. The guard said, in front of a witness, that he wasn't "going to regulate his performance, and said I'm going to ignore you." So, one person performing for 3-5 people or performing while wandering around has an urgent need of regulation, but not performances that create a crowd of 50 people like the photographs in exhibit, or when the Festivals attract 250,000 people a day.
As I said, it is just pressure from the Center's rental clients and the Center's desire to have a tool to use as a club, and they try to cloak this with fake needs that have been no problem for 40 years. A handful of people should not be required to go through the mental aggravation Seattle Center has created with these rules. These rules were never needed the last 40 years and I do not believe they're needed now. When I asked for a spot to be added I was told there were more spots than registered performers. Obviously, if that is the case, where is the dire need? I am sure existing laws adequately handle whatever is necessary.
Whatever problems Seattle Center thinks they're solving, infringing on a few people's constitutional rights does not solve them. Nor can they be trusted with being sensitive to the public's rights.
I mean, would YOU want to have a permit, under authority of issuance, to visit public space that you gave tax money to, when you paid sales tax on toilet paper, phones, TV, gas, car fees, etc., to give them the ability to tell you where you can stand, what you can say or do?
Waterfront ParkBeginning in 1987, at
the Waterfront
Park, officers had begun rousting all performers and beggars along the
pier, trying to use a 1987 ordinance against vending in a park. The
officers
said I could leave or they would confiscate all my equipment and money
until the case was heard in court. I tried to get a license, but was
told
I by the City Engineer Department I could not have a street use permit.
I tried to get a permit from the director of permits at Parks and
Recreation.
They denied me a permit. I tried to use their system but it wouldn't
accept
me. In the Spring of 1992, after five years of putting up with this,
performing
anyway and trying to dodge the police patrolling the pier, I went to
the
law library and saw that vendor laws didn't apply to street performers.
I confronted the Chief of Police and his attorney, Leo Plotts. I said
if
the police tried to hassle me with a vending law I would take them to
Federal
Court for denying me my First Amendment rights to express myself in a
public
place. When I confronted the patrolman, Officer Miller, he told me he
was
being influenced by the Waterfront merchants who he said were paying
him
to keep the area clear of persons that were getting money. The
merchants
felt it was cutting into their daily till. I again called Mr. Plotts
and
they sent a Lt. Brown to the pier to make Officer Miller desist, after
being hassled by him again, even though I told him of my agreement with
his superiors. Officer Miller was transferred. Seattle Center In the early 1990's Seattle Center began to treat all street performers who were busking with their hat out as vendors. They said we needed to have a permit to perform on the grounds. However, the permit was a contract issued by their Director of Contracts and Concessions. They wanted performers to set hours of operation from 11:00 AM to 6 PM, notify Seattle Center in advance if not coming, and a monthly fee of $200. A few performers agreed to this. I did not. Center security officers would try to chase me off for not having this permit. I made them call police, who informed them I didn't need to comply as I was performing for donations with my hat out. During this time a few balloon performers and face painters decided to get contracts with the Center, and began charging specific prices instead of voluntary donations. They became vendors. I was told by police
many times
over the years that I couldn't perform magic and balloon art for
children
and adults for donations unless I had a permit or license. After trying
to get a license and permit and being denied, I went to the Law Library
in the Seattle Courthouse and researched all Local, State, and Federal
Laws about it. There were NO laws about street performing, and the
one's
against begging were for the First Amendment. I then went to the chief
of police and his lawyer and threatened to take them to court if the
police
on the pier threatened me again with a vendor law. The officer on the
pier
wouldn't obey they order so they sent a Superior Officer to the pier to
personally brief the officers, when I called the next time they
disobeyed
him. All was fine for a two years. Waterfront Park again In September and October 1995, while performing in Waterfront Park, upon instigation from Seattle Aquarium management, I was again confronted by police who said I had to have a permit. The police issued two more criminal citations, this time for soliciting in a park. The cases still were not called. In January I left for San Francisco and one of the cases was called for April 1st. My public defender asked them to drop the case. They refused, telling him they definitely wanted to try this case. When they found out I had flown back they dropped the case on Wednesday, then decided to call it on Friday for Monday's court hoping I had gone back. When I appeared in court they dropped the case. April Fools! I then found a lawyer, Peter Cogan, who would help me pro bono, and we filed 4 cases in Federal District court against the city and the police. The city settled for a total of $7000 on the 4 cases. Part of the settlement was that the City Attorney had to inform the police, the Seattle Center, the 3 Festivals, and Pike Place Market that performers asking for donations were not subject to vendor laws. Local News: Friday, October 03, 1997 Magician makes law
disappear by Christine Clarridge Balloon performer
settles his legal beef with city Thursday, August 5,
1999 By GORDY HOLT Seattle's balloon-blowing magician, "Magic Mike" Berger, has ended his six-year dispute with the city. Although Berger wouldn't disclose the amount of the settlement, Ruth LaRocque, spokeswoman for the city attorney's office, said it was for $500. A colorful and energetic street performer who wowed children and grown-ups alike with his talent, Berger filed a claim in United States District Court alleging the city arrested him falsely, then prosecuted him maliciously after he tried to perform at a downtown waterfront park in 1995. Two years ago, Berger settled a similar claim against the city stemming from two run-ins with police at the Seattle Center, where he had been huffing and puffing and making things disappear around the fringes of the Folklife Festival and Bite of Seattle. In all three cases, the city said Berger violated a 1987 law that requires vendors to register with the city. The city tells the vendors where they can sell their wares. But Berger said he wasn't selling anything. He was merely performing, he said, although he did pass the hat. Before reaching the settlement, completed earlier this week, Berger said he hoped a judge would tell the city there is a difference between performing and selling. He settled the suit, "because my lawyer thought we ought to." Berger has not performed since 1995 and doesn't intend to in the future, he said. He owns and manages a newspaper circulation consulting firm, which, he said, "keeps me pretty busy. 10/29/2003
OFFICIAL
PRESS RELEASE ON Seattle Center
performer rules
challenged in Federal
Court as unconstitutional PRESS RELEASE 10/29/2003 And I am under threat of
exclusion for arguing
about the
preceding exclusion.
To enter Seattle Magic Mike the magician's site map click here. 
Email Magic Mike. Webmaster Magic Mike Berger.
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NEW! Seattle Times July 24, 2008 " Court of Appeals to rehear busker's case" A Seattle street performer known as "Magic Mike," who earlier this year lost a federal appeal on a challenge to regulations at Seattle Center, has won another review of the case before the 9th U.S. Circuit Court of Appeals. In January, a three-member panel of the appeals court overturned a decision by a Seattle federal judge who had found that rules the center imposed on street performers violated free speech and equal protection. Earlier this month, however, the appeals court agreed to rehear the case en banc, meaning that a larger panel of at least 11 judges will reconsider the case. JDSUPRA - "Recognizing the law and the people behind it." "Magic Mike" Brings Out the Best in Elena Garella and Davis Wright Tremaine Posted on March 4, 2008
1/31/2008 - Press
release regarding petition to
9th Circuit for en banc review of recent ruling by partial court. Read full
petition. Eugene Volokh, January 14, 2008 First Amendment Center
1/11/08 Divided
9th Circuit backs Seattle's rules for street performers Judge rejects Seattle Center rules on buskers By Susan Gilmore Under the street-performer rules imposed by Seattle Center, "a latter-day Gene Kelly cannot sing in the rain," fretted U.S. District Judge James Robart in finding the center's busker rules unconstitutional. In a 14-page ruling issued yesterday, Robart wrote that Seattle Center regulations that require buskers - or street performers - to obtain permits, wear identifying badges, confine performances to certain locations and refrain from asking for money violate the First Amendment. "The street-performer permit requirement is a form of prior restraint, and thus raises First Amendment warning flags," Robart wrote. The decision grew from a lawsuit filed by Michael Berger, a street performer who calls himself "Magic Mike." He asserted in the lawsuit filed in February that the Center trampled his constitutional rights by regulating his magic tricks. Robart agreed. "The court accepts the city's evidence that some street performers have caused difficulty for Seattle Center patrons and tenants, but this is no justification for a ban on all street performers without a permit," he wrote. "The city may have aimed the rules at performers like the plaintiff, but their reach is much broader. No matter how persuasive the lyrical urgings of Martha Reeves and the Vandellas might be, there is no dancing in the street in the Seattle Center, at least not without permission." Center rules, which went into effect two years ago, also required an annual $5 busker license. Seattle Center officials said yesterday they hadn't seen the ruling. "We'll sit down and read it with our representatives and find out what it's about," spokesman Perry Cooper said. As soon as Berger heard about the ruling, he raced to the Center to perform, said his attorney Elena Garella. "My client absolutely hollered with joy," she said. "It's been a long struggle for him, and he's been very disheartened by all the rules. Now he can go and have a good time with the people." Berger, 57, has been performing magic and making balloon animals at the Center for years, but he said he's been harassed by Center security. Last evening, he was squeezed into a Styrofoam SpongeBob SquarePants costume and back at his usual spot behind the Ferris wheel, twisting a pink balloon into a parrot for a passing customer. (The customer had asked for a SpongeBob balloon, but the notoriously curt Berger said, "Yeah, I don't really do those.") "You bet I'm happy," Berger said, finishing the balloon and reaching for a crumpled copy of the judge's ruling. He suddenly shouted to a bystander, "Do you have a permit to be here? Do you? Why should I? "I've been telling them for years that they can't tell me not to be here. They messed with a guy who not only taught himself magic, but taught himself First Amendment law." Gary Keese, assistant city attorney, said he hasn't talked to Seattle Center officials about the ruling and it isn't certain when it goes into effect. "The Center's going to have to assess this and how best to operate so it's a safe environment for everybody," he said. "The Center will have to look at the decision, figure out if there's some way to modify the system they have so it's both effective and complies with the decision, or appeal it." Keese said the rules were adopted after entertainers began arguing with each other about who could perform where. The Center set up 16 locations where buskers can perform, and they have to stay within 5 feet of those spots, Berger has said. In his ruling, Robart wrote that the rules are not being evenly applied. "While one person cannot sing without a permit, 81 people wishing to congregate at Seattle Center to proclaim their political views can do so without concern." The case focused on the definition of Seattle Center, whether it is a "traditional public forum," as Berger claimed, or a "limited public forum," as the city claimed. The judge sided with Berger. He pointed out that city documents say the Center is "the nation's best gathering place" and a "gathering place and public space open to everyone." Robart wrote that the Center can't restrict the places where buskers perform, require identification badges or restrict their ability to ask for money. "While a street performer cannot offer a meek oral request for a donation from passers-by, a beggar who does not perform can solicit Seattle Center visitors with relative impunity." Garella, Berger's attorney, said the legal fight cost Berger about $25,000, money she hopes to collect from the city. Berger said that if he received a large enough reimbursement, he'd like to use some of it to put up an awning so street performers could get out of the rain. "They have rain protection at Pike Place Market," he said. "We should, too." Main Points of the Federal suit I just filed against Seattle Center. 19.
Despite the
multiple notifications of the right to perform publicly at Seattle
Center,
Defendants City of Seattle, Virginia Anderson, Mike Anderson and Five
Unknown
Employees and/or Officers have promulgated a set of Rules, entitled
"Seattle
Center Campus Rules" that impermissibly interfere with Magic Mike's -
and
indeed all citizens'-right to freely express themselves artistically
and
politically. These Rules are appended as Exhibit A of this
Complaint. "The city appears not to have taken these words to heart," wrote Elena Garella, Magic Mike's attorney. |