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October, 1997
SM street performer limits OK’d
Mary Moore, The Outlook. Santa Monica.
October 8th, 1997
After weeks of complex and philosophical discussions about free
speech rights, the Santa Monica City Council voted Tuesday in favor of sweeping revisions of an ordinance
regulating street performers on the Third Street Promenade and Santa Monica Pier.
The council voted 4-3 in favor of the revised ordinance, with
council members Robert Holbrook, Ruth Ebner, Asha Greenberg, and
Paul Rosenstein supporting the measure and Ken Genser, Michael Feinstein and Pam O’Connor voting against it.
Efforts by a minority on the City Council to loosen key provisions
of the revised ordinance were struck down as the council hammered
out details of the new law. However, Rosenstein brushed aside
concerns of the council that the new law would limit street performers’
First Amendment rights.
“These rules do not infringe on anyone’s free speech,” Rosenstein
said.
Two controversial proposals were eliminated from the ordinance
early in the council’s discussion. One would have allowed street
performers to distribute cassettes, videotapes, CDs and other
recordings of their work, even if they weren’t created the same
day the performance took place.
The other provision would have exempted newspapers, leaflets,
pamphlets, bumper stickers and buttons from Santa Monica’s regulation
-- items typically distributed by political and religious groups.
Sign requirement altered
However, in a coup for performers, the city backed down from a
requirement that signs be posted saying that all items available
from performers were free or for a donation. Under a last-minute
revision, the signs would only say that the performers’ items
are available for a donation.
The ordinance the council was set to approve culminates two years
of work by several city departments and has been the main item
on the agenda for several recent City Council meetings. The council
postponed voting on the issue at its last meeting, hamstrung by
philosophical discussions about the free speech rights of those
who entertain the crowds that flock to two of Santa Monica’s social
hot spots.
Although the council finally voted Tuesday, the meeting once again
was fraught with the complexity of First Amendment law.
As originally proposed, the ordinance allowed performers to distribute
only items that were created on the day of the performance and
only for a donation. However, anyone else could go to the pier
or promenade and distribute any item for free or for a donation
without restriction.
That made no sense to Councilman Ken Genser, who pushed for the
amendment. Genser wondered why performers would be restricted
from distributing their work when the same limitations are not
placed on the public at large.
“I think it’s not only absurd, it’s probably unconstitutional,”
Genser said.
Tensions mounted when Councilwoman Greenberg proposed striking
an exemption for newspapers, bumper stickers and other items.
If the council had voted in favor of including this exemption
in the new law, groups distributing these objects would not have
been allowed to sell them for any price.
“It’s a slippery slope,” Greenberg said.
Fears door would be opened
She said that although the exemption is meant to allow for free
political and religious expression, it would open the door to
anyone who wanted to sell the exempted items.
Councilman Feinstein threatened to vote against the entire ordinance if the exemption
was not included, arguing that without it, political free speech
in Santa Monica would not be allowed to flourish. Feinstein, a
co-founder of the Green Party in California, has operated voter registration tables on the
promenade and distributed information about the political party.
“This is so basic,” Feinstein said about the exemption for newspapers,
bumper stickers and other items. “I would rather err on the side
of a slippery slope.”
Genser agreed.
“We need to respect political activity in this community ... and
not put prohibitions on people’s right to sell bumper stickers
and buttons,” he said.
City staff members say the revised law is written to protect public
safety in crowded areas but preserves performers’ rights of free
speech.
Interest in the street performers ordinance heightened several
months ago when Marc Miskey, a guitarist who plays on the Santa
Monica Pier, sued the city on the grounds that his First Amendment
rights were violated. That lawsuit has been on hold until the
city finalizes its revisions to the ordinance, said Carol Sobel,
Miskey’s attorney.