Berger v. City of Seattle

512 F.3d 582, 2008 U.S. App. LEXIS 331, 2008 WL 80707

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 9, 2008
• Docket: 05-35752
• Status: Published

Opinions

Opinion by Judge O’SCANNLAIN; Partial Concurrence and Partial Dissent by Judge BERZON.

O’SCANNLAIN, Circuit Judge:

We must determine the bounds of a city’s authority to restrict expression in a public forum.

I

The public forum is the “Seattle Center,” an entertainment zone covering roughly 80 acres of land in downtown Seattle, Washington. Each year, the Seattle Center’s theaters, arenas, museums, exhibition halls, conference rooms, outdoor stadiums, and restaurants attract nearly ten million visitors. The city wields authority over this large tract of land and has delegated its power to promulgate rules to the Seattle Center Director (“Director”). See Seattle, Wash., Municipal Code § 17.04.040. In 1978, the Director issued rules setting forth procedures and requirements governing use of the Seattle Center campus. In 2002, after an open process of public comment,¹ the Director issued a superseding set of provisions in response to specific complaints and safety concerns, which became known as the Seattle Center Campus Rules.

This litigation, originally brought by Michael Berger, a street performer, requires us to consider the validity of five Campus Rules. The first four affect street performers only: Rule F.l requires a permit for street performances and requires badges to be worn during street performances, Rule F.2 sets the terms of conditions of obtaining a permit, Rule F.3.a bars active solicitation by street performers, and Rule F.5 limits street performances to sixteen designated locations.² Another provision affects all persons in the Seattle Center: Rule G.4 forbids speech activities within 30 feet of a captive audience. Berger mounts a facial attack on the constitutionality of these five restrictions.

. Berger has performed in the Seattle Center since the 1980s, making balloon creations and “talk[ing] to his audience about his personal beliefs, especially the importance of reading books.” In the 1990s, Seattle Center authorities ejected Berger for various violations of the 1978 Campus Rules. In 1996, he sued the authorities, alleging violations of the First and Fourteenth Amendments under 42 U.S.C. § 1983. The city moved for summary judgment, but the magistrate judge denied the motion on the grounds that “substantial authority” supported “a constitutionally protected right to perform magic tricks, create balloon sculptures, and receive voluntary donations in a public park.” That case ultimately settled.

When the revised Campus Rules were enacted in 2002, Berger obtained a permit.³ Yet he continued to face problems with the Seattle Center authorities: members of the public filed numerous complaints alleging that Berger exhibited threatening behavior and Seattle Center staff reported several rule violations. In 2003, Berger filed this complaint seeking damages and injunctive relief for alleged civil rights violations. In particular, he raised as-applied and facial challenges to Rules F.l, F.2, F.3.a., F.5, F.7.a,⁴ and G.4. In 2005, the district court granted summary judgment to Berger, concluding that these rules facially violated the First Amendment.⁵ Pursuant to a stipulation by the parties, the city paid Berger $1 in nominal damages and $22,000 in attorney’s fees and costs and the court dismissed with prejudice Berger’s remaining and potential claims.⁶

The city timely appeals the district court’s order of summary judgment and seeks reversal with instructions to enter summary judgment in its favor.

II

The First Amendment states that “Congress shall make no law ... abridging the freedom of speech, or of the press.” U.S. Const, amend. I, cl. 2. Expressive activity must be particularly protected in a traditional public forum, such as the Seattle Center:⁷

In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks.... In these quintessential public forums, the government may not prohibit all communicative activity.

Perry, 460 U.S. 37, 46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). However, “[t]he principles of First Amendment are not to be treated as a promise that everyone with opinions or beliefs to express may gather around him at any public place and at any time a group for discussion or instruction.” Poulos v. New Hampshire, 345 U.S. 395, 406, 73 S.Ct. 760, 97 L.Ed. 1105 (1953); see also Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931) (“[Protection even as to previous restraint is not absolutely unlimited”).

“Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions.” Clark v. Comty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). Such restrictions must satisfy three conditions to be enforceable: (1) they must be “justified without reference to the content of the regulated speech,”⁸ (2) they must be “narrowly tailored to serve a significant governmental interest,” and (3) they must “leave open ample alternative channels for communication of the information.” Id. In applying this three-pronged test to the five rules challenged at bar, we review the district court’s grounds for summary judgment de novo. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc).

HI

A

We begin with Berger’s challenge to the permit requirement. Rule F.l states that any person wishing to conduct a street performance must obtain a $5 annual permit from the Director. This rule dovetails with the badge requirement in Rule F.l, which mandates that a badge “shall be worn or displayed by the performer in plain view at all times during a performance.” Although we address the permit and badge requirements separately, we note that their purposes are intertwined. See infra, note 13.

Berger argues that the permit rule fails all three prongs of the test for a reasonable time, place, or manner restriction. The district court held that the requirement passed the first prong of the test but failed the second: the rule was content-neutral but was not sufficiently tailored to a significant governmental interest. Granting summary judgment to Berger on that ground, the district court never reached the third prong of the test.

To determine whether a rule is content neutral, “we do not make a searching inquiry of hidden motive; rather we look at the literal command of the restraint.” Menotti v. City of Seattle, 409 F.3d 1113, 1129 (2005). “The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). A licensing statute lacks content neutrality if it burdens only certain messages or if it imposes a burden on all messages, but allows officials unchecked discretion to treat messages differently. The Supreme Court’s decisions in 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 District, 534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002), apply this principle and offer useful guidance.⁹

In Cox, the Supreme Court affirmed the convictions of five Jehovah’s witnesses who had violated a state statute mandating a license to conduct a “parade or procession” on a public street. 312 U.S. at 570, 61 S.Ct. 762. The Court clarified that the state could enact a legitimate licensing system to ensure “comfort or convenience in the use of streets” but could -not allow licensing officials to use the system as a means of content censorship. Id. at 577, 61 S.Ct. 762. Finding “no evidence that the statute ha[d] been administered otherwise than in the fair and non-discriminatory manner which the state court [] construed it to require,” the Court read the statute to be content neutral. Id. at 577, 61 S.Ct. 762. The court concluded that the licensing scheme was a valid “exercise of local control over the use of streets for parades and processions.” Id. at 578, 61 S.Ct. 762. '

In Poulos, the Supreme Court reiterated that the First Amendment does not preclude permit requirements. There, the Court examined a city ordinance that stated: “No theatrical or dramatic representation shall be performed or exhibited and no parade or procession upon any public street or way, and no open air public meeting upon any ground abutting thereon shall be permitted unless a license therefor shall first be obtained from City Council.” Id. at 397 n. 2, 73 S.Ct. 760 (internal quotation marks omitted). Although the ordinance allowed the city council to charge for parades, processions, or open air public meetings up to $300 per day, and had been applied to bar religious expression, the Court concluded that the licensing requirement was a valid “ministerial, police routine for adjusting the rights of citizens so that the opportunity for effective freedom of speech may be preserved.” Id.

Again the Court upheld a permit requirement in Thomas, 534 U.S. 316, 122 S.Ct. 775,151 L.Ed.2d 783. At issue was a municipal park ordinance requiring a permit to be obtained prior to any “public assembly, parade, picnic, or other event involving more than fifty individuals.” 534 U.S. at 319, 122 S.Ct. 775 (internal quotation marks omitted). The claim in that case turned upon whether the city had to enact certain procedural safeguards, set forth in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), to ensure that the ordinance did not foster censorship.¹⁰ The political activists bringing suit argued that the procedural safeguards applied to all licensing restrictions.¹¹ The Court, however, held that “Freedman is inapposite because the licensing scheme at issue here is not subject-matter censorship but content-neutral time, place, and manner regulation of the use of a public forum.” Id. at 322, 122 S.Ct. 775. The Court’s explanation bears lengthy quotation:

We have never required that a content-neutral permit scheme regulating speech in a public forum adhere to the procedural requirements set forth in Freedman. “A licensing standard which gives an official authority to censor the content of a speech differs toto coelo from one limited by its terms, or by nondiscriminatory practice, to considerations of public safety and the like.” Niemotko v. Maryland, 340 U.S. 268, 282 [71 S.Ct. 328, 95 L.Ed. 280] (1951) (Frankfurter, J., concurring in result). “[T]he [permit] required is not the kind of prepublication license deemed a denial of liberty since the time of John Milton but a ministerial, police routine for adjusting the rights of citizens so that the opportunity for effective freedom of speech may be preserved.” Poulos v. New Hampshire, 345 U.S. 395, 403, 73 S.Ct. 760, 97 L.Ed. 1105 (1953). Regulations of the use of a public forum that ensure the safety and convenience of the people are not “inconsistent with civil liberties but ... [are] one of the means of safeguarding the good order upon which [civil liberties] ultimately depend.” Cox v. New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 85 L.Ed. 1049 (1941). Such a traditional exercise of authority does not raise the censorship concerns that prompted us to impose the extraordinary procedural safeguards on the film licensing process in Freedman.

Thomas, 534 U.S. at 322-23, 122 S.Ct. 775 (footnote and parallel citations omitted). The Thomas Court noted that constitutional concerns would arise if a permit requirement granted “unduly broad discretion in determining whether to grant or deny a permit,” and thus allowed the state to “favor or disfavor speech based on its content.” Id. at 323, 122 S.Ct. 775. But the statute in Thomas granted no such discretion, and the Court upheld it.

Guided by these precedents, we must decide whether Rule F.l discriminates based on content. Berger argues that the rule does so because it “single[s] out persons who choose to exercise their First Amendment rights through the medium of performance arts.” The district court correctly rejected this argument. None of the challenged rules — the permit requirement, the bar on active solicitation, the designation of specific locations, or the captive audience rule — burdens expressive activity based on “disagreement with the message” of the performer. Contrary to Berger’s argument, a rule does not discriminate based on content simply because it restricts a certain “medium” of communication. A “regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” Ward, 491 U.S. at 791, 109 S.Ct. 2746. We are satisfied that the rules meet the first prong of the test for a valid time, place, or manner restriction speech.

We turn to the second prong of the test. A rule is narrowly tailored if it “promotes a substantial government interest that would be achieved less effectively absent the regulation.” United States v. Albertini 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985).¹² Berger disputes the significance of the city’s interests, and also contends that the rule does not match the city’s asserted aims to reduce territorial disputes among performers, deter patron harassment, and facilitate the identification and apprehension of offending performers.¹³

“As a general matter, it is clear that a State’s interest in protecting the ‘safety and convenience’ of persons using a public forum is a valid governmental objective.” Heffron v. Int’l Soc’y of Krishna Consciousness, Inc., 452 U.S. 640, 650, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981). Here, the district court noted the Seattle Center authorities enacted the permit requirement after encountering “chronic” territorial disputes between performers and threats to public citizens by street performers. Testimony from Randy Douglas, a Seattle Center Emergency Services Department Employee, recited some of the troubles:

Before the performer rules went into effect ... there were approximately 3 or 4 complaints by performers against other performers per week. If Magic Mike [Berger] was here, we could expect one or more from him.... The general complaints by performers against other performers would be ‘that is my spot and he can’t be there’ and/or ‘that performer is doing what I am doing and they won’t move.’ The general complaints by the tenants against performers usually concerned too much noise or blocking access.

These complaints show that street performances posed a threat to the city’s interests in maintaining order in the Seattle Center and providing harassment-free facilities. See Thomas, 534 U.S. at 322, 122 S.Ct. 775 (upholding a “permit system ... [that was aimed] not to exclude communication of a particular content, but to coordinate multiple uses of limited space, to assure preservation of the park facilities, to prevent uses that [we]re dangerous, unlawful, or impermissible under the Park District’s rules, and to assure financial accountability for damage”). We are satisfied that the city’s permit scheme was designed to further valid governmental objectives.

We turn next to Berger’s claim that the permit requirement is overbroad because it restricts all street performances, but not all street performances áre likely to cause harm. Noting that street performances have led to numerous territorial disputes and patron complaints, the city defends its decision to place special requirements on such activities, and asserts that the permit scheme addressed “the exact source of the evil.” Members of the City Council of L.A., et al. v. Taxpayers for Vincent, 466 U.S. 789, 808, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984).

We agree with the city that the permit requirement was not overbroad. The requirement affected only a specific form of activity, which had generated documented concerns for patrons and Seattle Center staff. Although the permit requirement affected all street performers, and not only those proven to be disruptive, the city was not required to wait for problems to arise or to speculate as to which performers would pose greater threats. In fact, attempts to discriminate among performers in granting permits could well have destroyed the content neutrality of the permit scheme. A “regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative.” Ward, 491 U.S. at 799-800, 109 S.Ct. 2746. A permit requirement for all street performances does not exceed the scope warranted by the city’s interests in order and accountability.¹⁴

The Seattle Center’s permit rule is not comparable to the overbroad and untai-lored licensing ordinance invalidated by the Court in Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002).¹⁵ There, the Court invalidated an ordinance requiring any solicitor or canvasser to obtain prior permission before going on private property to promote a cause and to carry a permit on his or her person.¹⁶ 536 U.S. at 155, 122 S.Ct. 2080. The Court found that the permit scheme unduly broad and without relationship to a valid government objective.

But this case presents different concerns. Street performances do not carry the same “historical importance of door-to-door canvassing and pamphleteering as vehicles for the dissemination of ideas.” Id. at 163, 122 S.Ct. 2080. No evidence suggests that the Seattle Center’s permit requirement “imposes an objective burden on some speech of citizens holding religious or patriotic views” or shows “a significant number of persons whose religious scruples will prevent them from applying for such a license.” Id. at 168, 122 S.Ct. 2080.¹⁷ Most importantly, the permit scheme at bar bears a clear relationship to, and furthers, significant governmental interests, whereas the ordinance in Watchtower bore no relation to the municipality’s stated purposes of fraud prevention and privacy. See id. at 169-70, 122 S.Ct. 2080 (noting that criminals would likely ignore the permit requirement, as they did other aspects of the law, and carrying a permit would not make solicitors less intrusive). Finally, the Seattle Center does not have a rule that will satisfy the same purposes, as did the village in Watchtower. See id. at 169, 122 S.Ct. 2080 (noting that another rule allowed residents to post “No Solicitation” signs and made it a crime to solicit despite such signs¹⁸). We conclude that Watchtower does not support invalidation of the permit scheme at bar.¹⁹

Nor does the permit requirement fail the narrow tailoring test for underinclusiveness.²⁰ Berger argues that the rule does not match its purpose because it “targets street performers while allowing large crowds engaged in other types of expression to gather without a permit.” However, narrow tailoring does not require comprehensiveness: a rule is “narrowly tailored” as long as the significant interest of the government “would be achieved less effectively absent the regulation.” Alberbini, 472 U.S. at 689,105 S.Ct. 2897. The Supreme Court “frequently has upheld underinclusiveness classifications on the sound theory that a legislature may deal with one part of a problem without addressing all of it,” Erznoznik v. City of Jacksonville, 422 U.S. 205, 215, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975),²¹ and this court has rejected the argument that “a city’s means to achieve its significant interest of restoring and maintaining security can never be narrowly tailored absent a policy completely efficacious in eliminating [the targeted evil],” Menotti, 409 F.Bd at 1134 n. 41. In this case, the city has demonstrated the efficacy of its revised Campus Rules with testimony that “[a]fter the performer permit rules went into effect, Emergency Service rarely received any complaints regarding performers.” The disturbances that did occur were largely caused by Berger and were reported by Seattle Center employees.²² Although the Director might have drafted a rule sweeping more widely, so as to avoid disturbances caused by other forms of activity also, he was not required to impose further restrictions on expression. Because the permit requirement furthers significant governmental interests, it is not im-permissibly underinclusive.

We also find that the permit scheme does not grant the Director undue discretion so as to allow content censorship. As in Poulos, the permit scheme functions in a “ministerial,” and “routine” fashion. 345 U.S. at 403, 73 S.Ct. 760. We see no signs of censorship in the text or application of Rules F.l and F.2. These rules do not permit discretion in issuing permits; a permit “is issued upon [the] Director’s satisfaction that the information set forth in the application is true, the applicant has executed a statement stating that he or she will comply with applicable law and all provisions of the Seattle Center rules, and has paid the applicable application fee.” (emphasis added). The Director has no power to reject a completed permit application. While the Director may terminate or revoke a permit, even that decision depends upon the satisfaction of objective criteria or requires 7-day notice.

Berger offers absolutely no evidence revealing content censorship, and we will not presume that the city will read or apply its permit rule to allow such censorship, especially at the summary judgment stage. See Cox, 312 U.S. at 577, 61 S.Ct. 762 (rejecting a claim of impermissible discretion where “[t]here is no evidence that the statute has been administered otherwise than in the fair and non-discriminatory manner which the state court has construed it to require”). Indeed, the evidence shows that the Director has granted permits even to street performers with a history of complaints against them, such as Berger.²³ Like the valid licensing schemes in Poulos, Cox, and Thomas, the Seattle Center’s permit requirement is narrowly tailored to further valid governmental objectives and suffers neither from a discretion-based potential for censorship nor from overbreadth.

Like the Supreme Court’s precedents, our own caselaw confirms that we have no basis to invalidate the permit requirement at bar. The district court’s reliance on Grossman v. City of Portland, 33 F.3d 1200 (1994), was misplaced. In Grossman, we struck down a content-neutral permit scheme that led to the arrest of a man engaged in a “small, peaceful anti-nuclear protest involving six to eight people, in Portland’s Waterfront Park.” Id. at 1202. The ordinance in Grossman rendered it “unlawful for any person to conduct or participate in any organized entertainment, demonstration, or public gathering, or to make any address, in a park without the written permission of the [Parks Commissioner].” Id. at 1204. The ordinance imposed a 7-day waiting period for such permits, thus “requiring] potential speakers, demonstrators and entertainers to plan their activities well in advance, precluding such persons from using the parks for more spontaneous speech activity.” Id. at 1204. We concluded that this rule was overbroad. Id.

The Seattle Center’s routine permit requirement can be easily distinguished from the sweeping scheme in Grossman. First, the Seattle Center’s permit rule simply applies to street performances, designed to engage members of the public, which may lead to congestion problems or altercations with members of the public, as the record reveals. The Seattle Center’s permit rule imposes no waiting period, and permits are issued routinely. The rule does not require the sort of advance planning necessitated by Portland’s restriction on speech activities, let alone limit all forms of speech.

Berger attempts to analogize the ordinance in Grossman with the permit scheme at bar by arguing that the rule targets spontaneous expression that does not pose a threat to order or patron convenience. In addressing this claim, we note that the Seattle Center has not implemented its permit requirement to limit spontaneous expression, and the city assets that “the performance permit requirement should be construed to regulate only performances aimed at attracting an audience, not spontaneous singing or dancing engaged in solely for personal expression.” We give due consideration to the government’s interpretation and past application of its rule. “Administrative interpretation and implementation of a regulation are, of course, highly relevant to our analysis, for ‘[i]n evaluating a facial challenge to a state law, a federal court must ... consider any limiting construction that a state court or enforcement agency has proffered.’ ” Ward, 491 U.S. at 795-96, 109 S.Ct. 2746.

In Thomas, the Court recognized that the text of the rule might be interpreted to give undue discretion to deny a permit, but accepted the Park District’s assertion that permits would not be denied for “inadequacies that, under the circumstance, do no harm to the policies furthered by the application requirements.” 534 U.S. at 781, 122 S.Ct. 999; see also United States v. Buckland, 289 F.3d 558, 564 (9th Cir.2002) (en banc) (“The Supreme Court instructs us that ‘every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.’ ”) (quoting Hooper v. California, 155 U.S. 648, 657, 15 S.Ct. 207, 39 L.Ed. 297 (1895)). We read the rule to apply only to conduct aimed at attracting an audience — the sort of conduct that the city cites as the source of its concerns. In light of those interests, and the limited scope of the restriction, we are satisfied that Rule F.l .is narrowly tailored to significant governmental interests and avoids the constitutional infirmities discerned in Portland’s overbroad licensing scheme in Grossman.

Finally, we consider Berger’s argument that “[t]he permit requirement does not provide ample alternative channels for communication of a performer[’]s message because no performances are permitted anywhere at the Seattle Center without a permit.” Our precedent notes that “[i]n the ‘ample alternatives’ context, the Supreme Court has made clear that the First Amendment requires only that the government refrain from denying a ‘reasonable opportunity’ for communication.” Menotti, 409 F.3d at 1141. Under the Campus Rules, a performer may, without a permit, “convey his or her message verbally while walking through the campus,” and “like all other Center visitors, may leaflet, gather signatures, and make speeches without any permit.”²⁴

It is clear that “ample alternative channels” do not require the exact same means of expression in the exact same location. In One World One Family v. City & County of Honolulu, 76 F.3d 1009 (9th Cir.1996), we upheld a Waikiki wide ban on the sale of message-bearing t-shirts on sidewalks. We concluded that vendors could locate off the sidewalks and thus retained “a number of alternative means of disseminating their message, each of which allows them to communicate effectively with people on the sidewalks.” Id. at 1014-15. Although the ban was sweeping — precluding such sidewalk sales throughout Waikiki — we found the rule to be valid: “The broader the ban, of course, the more difficult it is to prove that the remaining means of communication are adequate. Difficult, however, doesn’t mean impossible.” Id. at 1015-16. We conclude that the permit requirement satisfies the third prong of the test for a reasonable time, place, or manner restriction on speech, and must be upheld.

B

Turning now to Berger’s challenge to the badge requirement, we have already noted the intertwined nature of the permit and badge requirements. See supra note 13. The district court did not rule on the validity of the badge requirement because it deemed the permit requirement — of which the badge requirement is a part — to be invalid. Because we conclude that the permit requirement satisfies the three conditions for a time, place, or manner restriction on speech, we must ask also whether the badge requirement imposes some additional burden that tips the balance against the rule.

Berger contends that the badge requirement generates a further impediment to free expression because “[p]erformers often wear costumes, which are a carefully-crafted part of the speech itself,” and “[t]he integrity of this part of the message may be damaged by a clip-on identification badge.” Berger rests this claim upon the Court’s decision in Buckley v. American Constitutional Law Foundation, 525 U.S. 182, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999), in which the Court invalidated a Colorado regulation “requiring [voter-]initiative-petition circulators to wear identification badges.” Id. at 198,119 S.Ct. 636.

At first sight, the Seattle Center’s badge requirement appears similar to that deemed invalid in Buckley: the Seattle Center’s interest in enforcing its permit requirement can be likened to Colorado’s aim of “enabling] the public to identify, and the State to apprehend, petition circu-lators who engage in misconduct.” Id. at 199, 119 S.Ct. 636. However, a closer reading of Buckley defeats the analogy. Unlike Seattle Center’s content-neutral badge requirement, Colorado’s badge requirement targeted speech based upon its message. See id. at 210, 119 S.Ct. 636 (Thomas, J., concurring) (“[T]he regulation must be evaluated under strict scrutiny [because] the category of burdened speech is defined by its content — Colorado’s badge requirement does not apply to those who circulate candidate petitions, only to those who circulate initiative or referendum proposals.”). Moreover, Colorado’s interest in avoiding voter fraud was not clearly furthered by the badge requirement and provided no “sufficient cause” to limit the traditional right to anonymous political speech. Id. at 200-01, 119 S.Ct. 636.

The Buckley Court’s protection of anonymous political speech does not require us to discern an inviolable right to anonymous artistic performances, although Berger argues that “[sjtreet performers may be just as concerned with their public anonymity as street preachers, political protestors or anyone else.” The importance of avoiding political retribution does not compare to a street performer’s desire to maintain the “integrity” of his costume. In Buckley, the Court received evidence that the badge requirement chilled speech because it exposed voter-initiative circulators to “the recrimination and retaliation that bearers of petitions on ‘volatile’ issues sometimes encounter.” 525 U.S. at 199,119 S.Ct. 636. Berger cites no similar evidence of a chilling effect and does not assert that his own speech was chilled by the permit requirement. Even if we were to conclude that the badge requirement might cause some performers to avoid the Seattle Center, this consideration is outweighed by the Seattle Center’s significant interests in enforcing its permit rule and ensuring accountability of performers. Because the badge requirement applies coextensively with the permit rule, our earlier analysis explains that adequate alternative avenues of expression remain, in which no badges need be worn. We conclude that the badge requirement, like the permit rule, passes all three prongs of the test for a valid time, place or manner restriction.

C

We next consider Berger’s challenge to the Seattle Center’s rule limiting the mode of solicitation by street performers. Rule F.3.a states that “[n]o performer shall actively solicit donations, for example by live or recorded word of mouth, gesture, mechanical devices, or second parties,” but allows performers to seek donations “passively in an instrument case or other receptacle provided for that purpose by the performer,” which “may include a written sign that informs the public that such donations are sought.” Again, Berger argues that the rule is content-based because it burdens only street performers. We have explained above why this argument must be rejected.²⁵ See supra pages 589-92. Berger also argues that the rule is not narrowly tailored because it “targets a particular group of people and not a particular problem such as aggressive begging.” The district court agreed, holding that Rule F.3.a could not satisfy the second prong of the restriction test: “As with the permit requirement, ... the active solicitation ban is not narrowly tailored.... Even more so than with the Rules’ permit requirement, the mismatch between the solicitation ban’s aim and its reach is fatal to its constitutionality.”

Our narrow tailoring analysis starts with a view of the city’s interests. The city asserts that Seattle Center authorities created Rule F.3.a in response to patron complaints regarding “pushy or overbearing performers,” and tailored the rule to ensure the convenience of patrons and to avoid performances that might interfere with pedestrian traffic or Seattle Center exhibitions. Our caselaw confirms that an “interest in protecting the safety and convenience of persons using a public forum is a valid government objective” and “[g]ov-ernment interests in promoting public safety and the orderly movement of pedestrians, and in protecting the local merchant economy are also substantial.” Perry v. L.A. Police Dept. 121 F.3d 1365, 1371 (9th Cir.1997); cf. Heffron, 452 U.S. at 652, 101 S.Ct. 2559 (noting that the State has a significant interest in “avoiding congestion and maintaining the orderly movement” of patrons at a public fair).

We have previously upheld bans on certain forms of solicitation.²⁶ In ACORN v. City of Phoenix, 798 F.2d 1260 (9th Cir.1986), we addressed a city ordinance which prohibited fund solicitation from occupants of vehicles stopped at intersections, in order to ensure road safety. The court noted that solicitation may cause problems not engendered by other forms of speech:

Although appeals for funds are indeed protected under the First Amendment as speech-related conduct, Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980), solicitation goes beyond pure speech in the response it demands on the part of the audience. Unlike oral advocacy of ideas, or even the distribution of literature, successful solicitation requires the individual to respond by searching for currency and passing it along to the solicitor.

Id. at 1268-69 (internal quotations omitted). Although we acknowledged that the city possibly could have “served its interests with a less restrictive means by prohibiting only solicitation that disrupted traffic,” it found the ordinance “narrowly tailored to address legitimate traffic safety concerns.” Id. at 1270; ee also Doucette v. City of Santa Monica, 955 F.Supp. 1192, 1205 (C.D.Cal.1997).

Although not binding in this Circuit, the D.C. Circuit’s decision in ISKCON of Potomac, Inc. v. Kennedy, 61 F.3d 949 (D.C.Cir.1995), provides helpful analysis. There, the court invalidated a Park Service ban on in-person solicitation. Although it noted that “the Supreme Court recently recognized that solicitation is a more intimidating and disruptive form of expression than leafletting,” id. at 955, and agreed that the Park Service has a legitimate interest in avoiding “the ills associated with runaway solicitation,” id. at 956, the court found the ban on in-person solicitation overbroad: “[W]e cannot see how allowing in-person solicitations within the permit area will add to whatever adverse impact will result from the special event itself.” Id. The court emphasized the narrow nature of its holding: “Our holding allows only those individuals or groups participating in an authorized demonstration or special event to solicit donations within the confines of a restricted permit area such as that assigned to ISKCON. It does not require the Park Service to let rampant panhandling go unchecked.” Id.

Unlike the solicitation ban in ISKCON, which bore an at-most attenuated relationship to the interests of the Park Service, the Seattle Center’s bar on active solicitation directly addresses the problems of heckling and patron disturbance revealed in prior complaints. Our reasoning in ACORN and the considerations noted by the D.C. Circuit in ISKCON support a conclusion that the Seattle Center’s bar on active solicitation was narrowly tailored to the city’s significant interest in protecting the Center’s patrons from disruptive and unwanted advances.

In addition to being content neutral and narrowly tailored, Rule F.3.a leaves open ample alternative avenues for solicitation. Contrary to Berger’s contention that street performers “are completely barred from requesting donations,” the Campus Rules expressly provide: “Donations for performances may be accepted passively in an instrument case or other receptacle provided for that purpose by the performer. The receptacle may include a written sign that informs the public that such donations are sought.” The bar only reaches active solicitations, which were the source of the complaints brought to the attention of Seattle Center authorities. Performers retain ample means to solicit funds without harassing patrons. This rule satisfies the third and final prong of the test and is a reasonable restriction on expression.

D

We next turn to Berger’s constitutional challenge to Rule F.5, which confines street performances to sixteen “designated locations on the Seattle Center grounds,” and specifies these by reference to a map provided with the permit application. The map shows the designated locations and states the “maximum number” of persons who may perform simultaneously at each. These locations include five positions close to the Space Needle, as well as other locations beside popular sites such as the Fun Forest Amusement Park, the Center House, the Mura Amphitheatre, the Key Arena, the Memorial Stadium, the International Fountain, and exhibition halls. The rules impose a limit of two performers at most sites. Berger argues that the rule limiting locations fails all three prongs of the test for a valid restriction on speech.

The district court held that Rule F.5 was content neutral and “designed to confine street performers to certain areas to mitigate their adverse impact on Seattle Center patrons.” Although this aim constituted a significant governmental interest, the district court nevertheless held that “[t]he City’s failure to narrowly tailor its restriction on where street performances can occur is also fatal to its constitutionality.” At the crux of the district court’s decision was its view that the rule was. underinelu-sive: “As with the permit requirement, the City presents no justification for these restrictions in light of the freedom of groups of up to 99 people who are not street performers to congregate whenever they please.”

We share the district court’s view that Rule F.5 is content neutral. The rule does not permit Seattle Center authorities to discriminate based on a performer’s message, and we have explained that a rule barring a certain medium of expression is not a content-based limitation.

We cannot accept the district court’s narrow tailoring analysis, however. Supreme Court precedent instructs us to the “general effect” of the rule and not to invalidate the rule “simply because there is some imaginable alternative that might be less burdensome on speech.” Albertini, 472 U.S. at 689, 105 S.Ct. 2897. Here, the city’s rule allowed the Director to confine street performances to locations that did not pose concerns for pedestrian traffic and enabled Seattle Center security personnel to focus on areas in which audiences might be gathering. As the district court noted, the rule helped mitigate the adverse impact of street performances.

The rule cannot be deemed overbroad. Street performers limited by the rule could still perform in numerous well-located sites, including those near some of the most popular Seattle Center attractions. See supra p. 601. The rule therefore can be distinguished readily from the location limitation we held invalid in Kuba v. 1-A Agricultural Association, 387 F.3d 850 (9th Cir.2004). There, a state-owned performance facility, the “Cow Palace,” had enacted a rule restricting public demonstrators to three “free expression zones.” Id. at 854.²⁷ All three zones lay on the perimeter of the parking lot and were at least 200 feet way from the main doors to the Cow Palace. Id. We found the first and second prongs of the time, place, or manner test to be satisfied. Id. at 858 (holding that the location limitation furthered the significant governmental interests of ensuring “pedestrian and traffic safety” and “preventing traffic congestion”). But we objected to the breadth of the rule, which confined demonstrators to distant locations unfrequented by pedestrians and thus “ma[de] communication ‘virtually impossible.’ ” Id. at 854. Such scope lacked proper justification: we discerned no evidence that “handing out leaflets and carrying signs on the parking lots and walkways outside [the facility] would cause ... congestion and danger.” Id. at 859. For that reason we held that “[t]he present policy, which relegates communication activity to three small, fairly peripheral areas, does not ‘sufficiently match’ the stated interest of preventing congestion, and so is not narrowly tailored to serve the government’s interest.” Id. at 862 (citation omitted).

We carefully explained that our decision in Kuba was consistent with the Supreme Court’s decision in Heffron, 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298. In Heffron, the Court upheld a rule confining exhibitors to certain fixed locations within the Minnesota State Fair against a First Amendment challenge brought by religious persons wishing to distribute and to sell faith-based literature and solicit donations at non-designated locations. Id. at 656, 101 S.Ct. 2559.²⁸ The Court found that the rule was content-neutral and supported the government’s significant interest in “avoiding congestion and maintaining the orderly movement of fair patrons.” Id. at 652, 101 S.Ct. 2559. The Court also explained that the rule satisfied the third prong of the time, place, and manner test because it “does not exclude [the religious group] from the fairgrounds, nor does it deny that organization the right to conduct any desired activity at some point within the forum. Its members may mingle with and orally propagate their views. The organization may also arrange for a booth and distribute and sell literature and solicit funds from that location on the fairgrounds itself.” Id. at 655, 101 S.Ct. 2559.²⁹

The facts in Kuba led us to a different conclusion, however. There, we contrasted the circumstances that led the Court to uphold the location limitation in Heffron with the facts before us in Kuba. “The organization and layout of the Minnesota State Fair encourage[d] milling about rather than purposeful movement toward a single central location,” and “the fairgrounds as a whole were the destination of the Fair’s patrons, most if not all of the areas would be equally congested.” Kuba, 387 F.3d at 863. This was not true for the “parking lots and walkways” at the Cow Palace. Id. at 862. We also emphasized that “the number of visitors and exhibitors at the Minnesota State Fair ... was vastly greater than the number of visitors and exhibitors at the [facility in Kuba]” and the parking lots in Kuba “[we]re not stopping places for patrons.” Id. at 863. Finally, we stated that “while at the Fair the booths available for distribution of literature ‘are located within the area of the fairgrounds where visitors are expected, and indeed encouraged, to pass,’ [the rule cjordoning protestors off in a free expression zone the size of a parking space, located over 200 feet from the entrance [to the facility in Kuba ] far from encouraging interaction with them, is more likely to give the impression to passers by that these are people to be avoided.” Id. at 863 (citing Heffron, 452 U.S. at 655 n. 16, 101 S.Ct. 2559).

The contrast between Heffron and Kuba illustrates the distinction between permissible and illegitimate location restrictions. The Seattle Center’s rules further significant city interests, by keeping street performances from posing threats to the flow and convenience of Seattle Center patrons in heavily congested areas and entrances to buildings. See Kuba, 387 F.3d at 850 (“The Policy certainly furthers the governmental interest in preventing congestion. It would be hard to imagine an exclusion of speakers from a given area that did not meet this interest, at least marginally.”). Unlike in Kuba we note substantial evidence that the attraction of an audience in many locations would pose concerns for crowd control. Unlike leafletting and carrying signs, a street performance seeks to gather an audience, and thus even, a single performer can generate congestion problems. Compare Kuba, 387 F.3d at 860 (finding it implausible that “Kuba and the handful of other demonstrators would contribute significantly to the congestion and traffic danger if allowed to demonstrate in any area other than the free expression zones”). Nearly ten million visitors visit the Seattle Center each year. While the number of street performers is small— testimony suggests that typically only 5-8 performers seek street performance permits even during peak hours — such activities create a legitimate concern for crowd control. Given that the rule still permitted street performances in sixteen locations near popular Seattle Center sites, we conclude that the rule was not overbroad.

We also reject the conclusion of the district court that the rule was under-inclusive. “The validity of such regulations [that ‘control the time, place, and manner of expression’] does not turn ón a judge’s agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests.” Id. at 688-89, 101 S.Ct. 2559. As we have noted, a time, place, or manner restriction on speech is sufficiently tailored if it “promotes a substantial government interest that would be achieved less effectively absent the regulation.” Id. at 689, 101 S.Ct. 2559. The city was not required to restrict all possible expressive activities that would lead to the same sort of problems in order to create a valid rule to ensure order. While the district court highlighted the fact that larger groups conducting activities are not similarly confined, we note that such groups face other restrictions designed to preserve order. For example, Rules E.l-E.15 require licenses for activities that require props or amplification, as most large-scale gatherings would.³⁰ The fact that Rule F.5 simply addresses a specific kind of potential congestion hazard and threat to patron convenience does not render it underinclusive. Because the rule serves a significant government objective and is neither overbroad nor underinclu-sive, we hold that it satisfies the second prong for a valid restriction on expression.

Applying the third prong, we conclude that Rule F.5 also leaves alternative modes of expression available in cases where too many performers request the same site. The rule sets forth sixteen locations (a number of which were added pursuant to street performer requests).³¹ The record shows that only 5-8 performers have sought permits at the same time — even during peak times. Berger does not offer any evidence that a performer has been unable to perform in the Seattle Center due to this rule. His claim amounts to a demand for the right to perform in the Seattle Center at whatever venue he chooses. That claim cannot be reconciled with the city’s significant interest in maintaining order and patron convenience. A venue requirement is not a prohibition on speech, but a reasonable limit designed to further significant government interests.³² Rule F.5 passes all three prongs of the test for a valid time, place, or manner restriction on speech.

E

Having determined that rules F.l, F.2, F.3.a, and F.5 pass constitutional review, we turn, finally, to Berger’s claims against Rule G.4, which applies to all Seattle Center entrants. This rule prohibits speech activities “within thirty (30) feet of any captive audience; or within thirty (30) feet of any building entrance; or within thirty (30) feet of any person engaged in any scheduled event that is sponsored or co-sponsored by the Seattle Center.” The rules exempt city employees and licensed concessionaires. Berger asserts that the “ ‘captive audience’ ” rule cannot stand because the doctrine permitting such restrictions on speech “is not applicable in a traditional public forum.” The district court invalidated the “captive audience rule” based on its conclusion that “[n]o court has recognized the desire to protect captive audiences in a traditional public forum as a significant government interest.” ³³

We look to our precedent on this issue. In Kuba, we addressed the validity of a policy limiting demonstrators to “free expression zones,” as described above. This policy also prohibited “discussions” between demonstrators and patrons “within 75 feet of the entrance and within the fire lane.” Id. at 862. Because we held that the entire policy was not narrowly tailored, we never specified the possible validity of the 75-foot rule in isolation. And the case at bar represents very different considerations. Unlike the mobile audience in Kuba, which could easily avoid the demonstrators, the Seattle Center patrons waiting in line for events cannot move away without sacrificing their enjoyment of Seattle Center facilities. They are more like the “captive audience” on the streetcar in Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974), who cannot escape unless they give up the ride.

As the Court has made clear, the “captive audience” doctrine does not require literal captivity or inability to escape. In Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593(1994), the Court considered women entering an abortion clinic to be “held ‘captive’ by medical circumstance” and therefore unable easily to escape demonstrators outside the clinic. Id. at 769, 114 S.Ct. 2516. At issue was a state court ruling that barred abortion protestors from expressive activities “within 36 feet of the property line of the clinic as a way of ensuring access to the clinic.” Id. at 768, 114 S.Ct. 2516. The Court “h[e]ld that the 36-foot buffer zone around the clinic entrances and driveway burdens no more speech than necessary to accomplish the governmental interests at stake,” but that the “portion of the buffer zone [on private property along the back and side of the clinic] ... burdens more speech than necessary to protect access.” Id. at 771, 114 S.Ct. 2516. Just as in Madsen, Seattle Center Patrons could choose to turn around and go home. But the Seattle Center offers desirable facilities for public entertainment, relaxation, and edification. Its authorities had the right to protect captive audiences seeking to enjoy such functions without being forced to choose between enduring harassment and leaving the facilities.

The 30-foot limitation imposed by the Seattle Center authorities to accomplish this purpose was reasonable and tailored to the interests at stake. It included only the spaces proximate to captive patrons — a far smaller area than fell within the 75-foot ban in .the Cow Palace in Kuba. As the district court noted, “[t]he general captive audience restriction targets visitors’ complaints about unwanted harangues and solicitations while waiting in line for Seattle Center events.”³⁴ Moreover, the captive audiences protected by the rule do not compare to the mobile visitors to the Cow Palace, who could have avoided demonstrators by walking another way without losing access to the facilities. The Seattle Center was not unreasonable in concluding that such zone was necessary to protect visitors confined to a fixed location while waiting to enjoy its facilities.

The third prong of the test is satisfied by this rule as well. Rule G.4 does not disallow verbal communications to non-captive audiences or at a greater distance than 30 feet. The captive audience rule does not silence a message in the Seattle Center, but only prevents it from being expressed in locations where it would pose a serious threat to order and to the convenience and peace of patrons.³⁵ The Seattle Center’s content-neutral captive audience rule was sufficiently tailored to its significant interest in preventing patron harassment and disturbances, did not exclude more speech than necessary, and left open ample alternatives for communication. The captive audience rule may stand.

IV

Berger raises a different but related challenge based on the Equal Protection Clause of the Fourteenth Amendment. He addresses this claim only to the permit requirement, and argues that the rule creates impermissible “distinctions among groups of people.” Because the logic of this argument applies equally to all street-performance-specific rules, we construe this argument as a challenge not only to Rule F.l (the permit and badge requirement), but also to Rule F.2 (the permit terms and conditions), Rule F.3.a (the active solicitation bar), and Rule F.5 (the locations limitation).

We agree with Berger that the proper standard can be found in the Supreme Court’s decision in City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). There, the Court stated that “[t]he general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” City of Cleburne, 473 U.S. at 440,105 S.Ct. 3249. A restriction faces strict scrutiny only if it targets a suspect class or a fundamental right. See id. This court has specifically addressed the relationship between equal protection and free speech. In Rubin v. City of Santa Monica, 308 F.3d 1008 (9th Cir.2002), we rejected an equal protection challenge to a rule barring a voter from designating “peace activist” as his occupation. We noted that the case required both “free speech and equal protection analyses.” Id. at 1019. We concluded: “Neither ‘non-incumbents’ nor ‘peace activists’ is a suspect class. Therefore, rational basis review is appropriate unless the restriction unconstitutionally burdens a fundamental right, here, the right to free speech. Because we conclude that the restrictions do not unconstitutionally burden Rubin’s right of free speech, we find that neither do they violate his Equal Protection right.” Id.

Like the non-incumbents and peace activists in Rubin, street performers are not a suspect class. See Cleburne, 473 U.S. at 443, 105 S.Ct. 3249 (explaining the limited set of “suspect” classifications and declining to expand the limited set to mental retardation). Thus, as in Rubin, the only question is whether the Campus Rules violate the constitutional right to free speech.³⁶ As explained above, the rules satisfy the standards for valid time, place, or manner restrictions on speech. Like the ballot rule in Rubin, the Campus Rules “further an important governmental interest, ... are non-discriminatory, are viewpoint-neutral, and ... do not severely limit a candidate’s First Amendment rights. Therefore, they are not unconstitutional on their face.... ” Rubin, 308 F.3d at 1019.

V

In sum, Rules F.l, F.2, F.3.a, F.5, and G.4 satisfy the requirements for valid restrictions on expression under the First Amendment. Such content neutral and narrowly tailored rules, which leave open ample alternatives for communication, must be upheld. The rules also survive rational basis review under the Fourteenth Amendment.

The order granting summary judgment to Berger is REVERSED. The case is REMANDED to the district court for further proceedings consistent with this opinion.

1 . Before enactment, the rules were "published in the English language continuously” for six months in the Seattle area. In response to "comments from street performers,” the Director made several changes to the rules, such as expanding the number of preordained locations at which performances could take place. The 2002 version was formally adopted on May 31, 2002.

2 . The Seattle Center has not enforced these rules since the district court enjoined their enforcement in May 2005. See infra.

3 . Berger renewed his permit through the end of 2004.

4 . Campus Rule 7.a states: "No performer shall treat any person or animal in a manner that is aggressive, menacing, vulgar, profane, or abusive.”

5 . Having concluded that the permit requirement was unconstitutional, the judge did "not address the requirement that permits ‘shall be evidenced by a badge that shall be worn or displayed by the performer.' ” Furthermore, because Berger failed to offer grounds to support his "cursory challenge” to Rule 7.a, and "cite[d] no case authority” as to that rule, the district court declined to consider that claim. Berger does not challenge that ruling on appeal.

6 . The stipulation did not address the injunction of the Seattle Center rules, which the city contests in its appeal at bar. Berger does not dispute the city’s right to bring this appeal.

7 . At the district court, the government argued that Seattle Center should be considered a limited public forum. The district court carefully considered the precedents and evidence on this issue and concluded that "Seattle Center is a traditional public forum.” The government does not contest this determination on appeal, and the record supports the characterization.

8 . A rule failing the content-neutrality threshold must withstand strict scrutiny: "For the State to enforce a content-based, exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Perry, 460 U.S. at 46, 103 S.Ct. 948 (emphasis added).

9 . Berger gives rather short shrift to these cases, instead relying upon our decision in Grossman v. City of Portland, 33 F.3d 1200 (1994). We rendered our decision in Gross-man without the benefit of the Supreme Court’s decisions in Thomas and Watchtower Bible, and cited neither Cox or Poulos in our analysis. We consider the light shed by our decision in Grossman in our later application of doctrine to the particular facts and permit scheme at bar, because Berger argues that Grossman offers a binding analogy. See infra pp. 596-97.

10 . The Court “held [in Freedman ] that a film licensing process must contain certain procedural safeguards in order to avoid constituting an invalid prior restraint: '(1) any restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be maintained; (2) expeditious judicial review of that decision must be available; and (3) the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court.' " Id. at 321, 122 S.Ct. 775 (citations omitted).

11 . Berger makes much of the fact that the Thomas decision dealt with a rule restricting expressive activity by groups of fifty-or-more persons. But the Seattle Center's permit requirement is aimed at performances intended to gather an audience and thus addresses crowd concerns as well. Moreover, the Court upheld licensing requirements that applied to individuals in Poulos, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105, and Cox, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049. The size of the affected group of speakers is not dispositive.

12 . The Court has used the terms '‘significant” and "substantial” interchangeably to describe the government's prerequisite interest. See, e.g., Ward, 491 U.S. at 799, 109 S.Ct. 2746 (citing the need for a "substantial government interest,” and then referring to it as a "significant government interest” a few sentences later).

13 . Berger’s reference to identification as an aim of the permit requirement underscores the interplay between the badge and permit requirements, because identification is facilitated through the badge requirement — not the permit requirement alone. Without the badge requirement, the permit requirement would not increase the ability of patrons to identify offending street performers, and thus would lose much of its deterrence and enforcement effects. Likewise, without the permit requirement, the badge requirement would never be invoked. We could, of course, imagine a permit system without a correlating badge requirement, or vice versa, but we confine our review to the facts and rules at hand.

14 . Contrary to Berger's argument, the permit requirement is not invalid under the reasoning in Cox v. City of Charleston, 416 F.3d 281 (4th Cir.2005), as Berger contends. In Charleston, the Fourth Circuit deemed invalid an ordinance that made illegal "a small meeting of individuals who gather on the sidewalk ... to hand out religious tracts without first obtaining a permit, even if their expression does nothing to disturb or disrupt the flow of sidewalk traffic.'' Id. at 286. Berger argues that Charleston deems unconstitutional any law that restricts the speech activities of " ‘groups as small as two or three.’ ” (quoting Charleston, 416 F.3d at 285). In fact, the Charleston court expressly “decline[d] Cox’s invitation to announce a numerical floor below which a permit requirement cannot apply.” Charleston, 416 F.3d at 286. The Charleston court invalidated the statute on a different basis — that the city failed to establish "why burdening such expression [wa]s necessary to facilitate its interest in keeping its streets and sidewalks safe, orderly, and accessible.” Id. Charleston simply underscores the need for an adequate relationship between the challenged restrictions and the problems they are intended to avoid.

The dissent argues that we have "badly misread[] Charleston.” Dissent at 612 n. 6. However, the dissent’s note only reaffirms our interpretation. Id. ("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.’ ”). The quote cited by the dissent shows that the court in Charleston did not create a rule based on individuals or large groups but based on the groups' or individuals’ effect on "safety, order, and accessibility of streets and sidewalks.” Id.

15 . Berger did not contend that Watchtower should guide our analysis, and his brief stated: "At most, Watchtower supports the district court’s determination that it was not necessary to reach the issue [of the validity of the badge requirement] where the permit system has been invalidated.” However, the case helps illuminate the sort of licensing scheme that would exceed constitutional bounds and provides an apt contrast with the Seattle Center’s permit scheme.

16 . The Court found it “unnecessary” to determine whether a lower standard of review would apply to a restriction on private property than in a public forum. See 'Watchtower, 536 U.S. at 164, 122 S.Ct. 2080. Chief Justice Rehnquist assailed the majority on this score: "It is not clear what test the Court is applying, or under which part of that indeterminate test the ordinance fails.” Id. at 175, 122 S.Ct. 2080 (Rehnquist, C.J., dissenting). "The Court suggests that [the city’s] regulation of speech warrants greater scrutiny [than that applied to restrictions in public forums in Ward, 491 U.S. at 791, 109 S.Ct. 2746, and Thomas, 534 U.S. at 322, 122 S.Ct. 775]. But it would be puzzling if regulations of speech taking place on another citizen’s private property warranted greater scrutiny than regulations of speech taking place in public forums....” Watchtower, 536 U.S. at 176, 122 S.Ct. 2080.

17 . This chilling effect was corroborated by the statements of the Jehovah’s Witnesses objecting to the ordinance. Berger offers no evidence that street performers faced similar impediments, and he never argues that he had a moral or religious objection to obtaining a permit, as he did through 2004.

18 . Chief Justice Rehnquist pointed out in dissent that this rule might lead to far greater limits on speech, because it allowed citizens to "cut off door-to-door communication altogether” with the support of criminal sanction. Id. at 181, 122 S.Ct. 2080 (Rehnquist, C.J., dissenting).

19 . Berger’s attempt to invoke other cases in which the Court invalidated licensing schemes does not assist him, for the rules at issue in those casés permitted content-based censorship. In Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), the Court invalidated a statute requiring prior approval by the secretary of the public welfare council before solicitation "for any alleged religious, charitable, or philanthropic cause.” Id. at 301, 60 S.Ct. 900. The statute gave enormous discretion to the secretary to "determine whether such cause is a religious one or is a bona fide object of charity or philanthropy and conforms to reasonable standards of efficiency and integrity.” Id. at 302, 60 S.Ct. 900. The Court decided that the statute violated the free exercise clause of the First Amendment because it constituted a "censorship of religion.” Id. at 305, 60 S.Ct. 900.

Likewise, in Schneider v. New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939), the Court deemed unconstitutional a content-based statute that subjected prospective speakers to “the power of a police officer to determine, as a censor, what literature may be distributed.” Id. at 163, 60 S.Ct. 146. And in Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980), the Court invalidated an ordinance requiring permits for solicitation and barring any such solicitation "by charitable organizations that do not use at least 75 percent of their receipts for 'charitable purposes.’ ” Id. at 623, 100 S.Ct. 826. The Court did not object to the provision requiring permits for organizations . that passed the 75-percent threshold; rather, the Court found unjustifiable the rule denying permits to organizations that did not pass such threshold. The Court did not object to thé fact that a permit was required, but to the reasons for which permits could be denied. See id. at 640, 100 S.Ct. 826 ("The 75-percent requirement plainly is insufficiently related to the governmental interests asserted in its support to justify its interference with protected speech.”). Citing its prior rulings in Cant-well, Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869 (1943), and Schneider, the Court reiterated that " 'a state m[ay] not prevent the collection of funds for a religious purpose by unreasonably obstructing or delaying their collection.’ ” Village of Schaumburg, 444 U.S. at 631, 100 S.Ct. 826.

The statutory rules rejected in Cantwell, Schneider, Jamison, and Village, can be distinguished easily from the Seattle Center’s permit requirement, which does not support such content-based censorship.

20 . The district court disagreed, holding the rules to be underinclusive because they did not reach activities with "a greater impact on Seattle Center patrons and tenants” and to be overbroad because they barred more expression than "they were intended to reach.” The court did not reach Berger’s final argument, that the rules foreclose all avenues of communication "because no performances are permitted anywhere at the Seattle Center without a permit.”

21 . In Erznoznik, the Court noted that the “presumption of statutory validity, however, has less force when a classification turns on the subject matter of expression,” 522 U.S. at 215, 118 S.Ct. 651, and deemed unconstitutional a content-based bar on cinematic expressions containing nudity as part of "a regulation designed to protect traffic.” 522 U.S. at 216, 118 S.Ct. 651. The rules applied by the Court in Erznoznik provide guidance, but the facts at bar are demonstrably different: the Campus Rules are content-neutral and carefully fitted to the problems they seek to address.

22 . Seattle Center authorities reported that since the adoption of the Campus Rules, their Emergency Services Unit filed eight incident reports involving Berger, one of which resulted in the suspension of his permit.

23 . The record reveals that "[i]n the year prior to the permit system, 70% of [the] performer complaints came from Michael Berger ... and/or were in regards to him,” yet Berger received a permit to perform in the Seattle Center the very next year.

24 . The permit requirement is less limiting than the rule we upheld in Menotti, which barred access to portions of downtown Seattle during a World Trade Center conference. This court found ample alternatives for expression in that case, noting that protestors could demonstrate in nearby zones, such as "across from the Washington State Convention & Trade Center, the Paramount Theater, three out of four major hotels where WTO delegates were staying, and throughout the rest of downtown Seattle.” Menotti, 409 F.3d at 1141. Similarly, the Campus Rules do not limit performances outside the Seattle Center, and, unlike in Menotti, access to internal locations remains possible if the performer obtains a routinely issued permit.

25 . We explained that a burden on a mode of expression alone does not constitute content discrimination against a message. The same applies to the solicitation rule, which applies to all performers regardless of their message. Berger cites no evidence suggesting content discrimination in the text or application of Rule F.3.a (barring active solicitation by street performers).

26 . Rule F.3.a does not completely ban solicitation, for it restricts only active solicitation, while expressly allowing passive solicitation. Cases such as Perry v. Los Angeles, 121 F.3d 1365, 1371 (9th Cir.1997) (invalidating a total bar on solicitation for certain groups), do not apply.

27 . Although the Cow Palace was not a traditional public forum such as we encounter at bar, the same time, place, or manner test applied.

28 . The grounds of the Minnesota State Fair "comprise[d] a relatively small area of 125 acres, the bulk of which is covered by permanent buildings, temporary structures, parking lots, and connecting thoroughfares.” Hef-fron, 452 U.S. at 651, 101 S.Ct. 2559. To that extent, the grounds mirror those of the Seattle Center — unsurprisingly, as the latter was built for the 1962 Seattle World's Fair. See Don Duncan, Meet Me at the Center (Seattle Ctr. Found. 1992). And although the Heffron court ultimately stated that the "Minnesota State Fair is a limited public forum,” 452 U.S. at 656, 101 S.Ct. 2559, its application of the time, place, or manner test offers guidance at bar. And the Heffron Court did not state that the fair was a limited public forum until after reaching all three prongs of the test for a valid time, place, or manner restriction on speech.

29 .The Heffron Court found these means of communicating a message to be sufficient in a limited public forum. It did not rule on whether these avenues would be sufficient in a traditional public forum.

30 . Berger does not challenge those rules or dispute their role in ensuring order in activities not covered by Rule F.5. We consider these other provisions relevant to show that the government has not selectively targeted certain activities for restriction, however, applying "the cardinal rule to construe provisions in context.” United States v. Balsys, 524 U.S. 666, 673, 118 S.Ct. 2218, 141 L.Ed.2d 575 (1998).

31 . During the period of public comment prior to final enactment of the 2002 Campus Rules, see supra note 1, the proposed rule was amended to offer more locations for street performances, in response to street performer requests. This underscores the Seattle Center’s efforts to tailor narrowly the rule to impose a reasonable limitation to conserve its interests, without unnecessarily hindering expression.

32 . Furthermore, persons like Berger can express their messages to patrons throughout the Seattle Center in other ways; Rule F.3.a only applies if they want to conduct street performances that may gather an audience.

33 . The court cited Erznoznik, 422 U.S. at 209, 95 S.Ct. 2268, Heffron, 452 U.S. 640, 650 n. 13, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981), and Kuba, 387 F.3d at 861 n. 10. These cases do not support its ruling. In Heffron, the Court expressly declined to discuss a captive audience argument. 452 U.S. at 650 n. 13, 101 S.Ct. 2559. In Erznoznik, the Court rejected a paternalistic “captive audience” rule advanced to support a content-based bar on nude films. 522 U.S. at 209, 118 S.Ct. 542.

34 . We see no evidence that these same concerns are generated by concessionaires, and because a rule will not fail because it addresses some, but not all, possible sources of harassment, the rule does not fail because authorized vendors are permitted to offer concessions to waiting patrons.

35 . The dissent criticizes our use of Madsen in upholding the 30 feet limitation on permit holders. Dissent at 616-17. The Dissent argues that the "privacy and self-determination interests involved in” Madsen are inapplicable in this case. Id. With all due respect, just as the Supreme Court has recognized a privacy interest that gives rise to a right to abortion, as against the government, see Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), it has also recognized that the First Amendment of the U.S. Constitution protects a person's interest in expression. See Boy Scouts of America v. Dale, 530 U.S. 640, 647-48, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000) (quoting Roberts v. United States Jaycees, 468 U.S. 609, 622, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), for the legal principle “that 'implicit in the right to engage in activities protected by the First Amendment’ is 'a corresponding right to associate with others in pursuit of wide variety of political, social, economic, education, religious and cultural ends' ”). Here, for example, the 30 feet permit limitation protects families and friends from having their intimate associations interfered with. See Dale, 530 U.S. at 646-47, 120 S.Ct. 2446. If the government can limit the religious expression of protestors on public sidewalks to promote the "privacy and selfdetermination interest” of women seeking abortions and abortionists, there is no reason it cannot legitimately protect others wishing to exercise their interest in private and public expression in intimate association with family and friends at a picnic. See supra at 604-06.

The Dissent also cites to Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357, 378-79, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997) ("[I]t would be quite difficult for a protester who wishes to engage in peaceful expressive activities to know how to remain in compliance with the injunction.”), in support of its proposition that the 30 feet limitation should be struck down as an impermissible "floating buffer zone.” Dissent at 618, 619. The Dissent’s reliance to Schenck is misplaced. First, unlike Schenck, where the "floating buffer zone” applied to the whole area that was available to street counselors to share their message, Schenck, 519 U.S. at 377-79, 117 S.Ct. 855, the buffer zone in this case is limited only to certain areas, not to all of the Seattle Center. See supra at 604 — 06. Second, there is no indication in this case that the buffer zone has prevented the performers from sharing their message with individuals at the Seattle Center, unlike in Schenck where the "floating buffer zone” effectively prevented any communication by counselors. Schenck, 519 U.S. at 378-79, 117 S.Ct. 855.

36 . The relevant constitutional right should not be characterized as a "constitutionally protected right to perform magic tricks, create balloon sculptures, and receive voluntary donations in a public park," as erroneously suggested by the magistrate who considered Berger’s 1996 complaints.