dissenting:
Seattle Center is an astonishing cultural achievement. Just minutes from downtown on foot or by monorail, it is home to a *1060dizzying array of entertainment venues, sporting events, festivals, educational and community programs, restaurants, museums and, of course, the world-famous Space Needle. The Center’s website documents the close co-operation between the city government and the scores of private, professional and community organizations that provide over 10,000 attractions and events there every year. Having had its start as the 1962 World’s Fair, the Center campus has maintained and enhanced its vibrancy over the intervening decades. In a square a little smaller than 6 blocks on a side, the Center is home to a professional sports team, PBS broadcast station, opera, ballet, Shakespeare Company, science center, IMAX theater, Experience Music Project (look it up), Science Fiction Hall of Fame, amusement park and countless other attractions. The Center is open from 7 a.m. to midnight every day, and this past year hosted 12 million visitors — roughly the population of Pennsylvania.
Operating an enterprise of this magnitude and complexity requires a good deal of effort and commitment. It also calls for some basic rules, to ensure the safety and convenience of the tens of thousands of people who visit the Center on an average day, and to preserve the atmosphere of hospitality and neighborliness that is the Center’s guiding spirit.
The rules pertaining to street performers, which my colleagues discard like so much wilted lettuce, were adopted in response to specific problems: repeated disputes among performers about location, performances in places that could not accommodate the crowds gathered to watch them, and rude and overbearing demeanor of some performers towards the public. The following is from a declaration submitted by the city, which we must accept as true for purposes of summary judgment:
Before the performer permit rules went into effect, ... there were approximately 3 or 4 complaints by performers against other performers per week.. If [plaintiff] Magic Mike was here, we could expect one or more from him and then one or more from whomever he was complaining about.... [T]here would be 1 complaint per week by a tenant of a facility in the Seattle Center ... [and] 1 complaint per month by a member of the public against a performer.... 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 tenants against performers ... concerned too much noise or blocking access .... [C]omplaints by members of the public generally concerned pushy or overbearing performers .... Emergency Service would normally receive 1 or 2 complaints per week regarding a performer trapping a captive audience.
The Center also experienced other problems: “Unregulated street performing had led to situations in which street performers had set up in areás that could not accommodate the crowds the performances sometimes gather. Street performers also sometimes set up too close to one another, creating conflicts between performers.”
Seattle Center authorities found that they had no effective way to deal with these persistent problems:
Before the permit system, the only recourse that Emergency Services had was to speak to the parties involved and ask performers to get along. We would ask anyone with loud or blocking performances to move or quiet down. Overbearing performers were spoken to and asked to leave if they did not change how they were doing their act. These requests did not reduce the number of complaints involving performers.
*1061The new rules had the desired effect, bringing peace and order to what had been a chaotic and disruptive process:
After the performer permit rules went into effect, Emergency Service rarely received any complaints regarding performers. In general, the permit system is welcomed by everyone. They know there are designated spaces for all different types of performances and that there are rules that everyone must follow. It has eliminated confrontation between performers. There are plenty of spots and they are not in the way of one another.
The majority here manages to strike down almost all of these rules without bothering to give Seattle an opportunity to present evidence justifying them. To that end, my colleagues deploy a number of techniques well designed for this purpose:
1. The majority finds the solution adopted by Seattle Center to be both too broad, maj. at 1045^46, and too narrow, id. at 1037, 1043, and so concludes that there’s an “imperfect fit” between the rules and the goals the city seeks to achieve. Id. at 1043. But the Supreme Court has made it quite clear that time, place and manner regulations need not be perfectly tailored, and that a government body has considerable discretion to fashion regulations as it thinks best: “The validity of such regulations does not turn on a judge’s agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests.” United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985). Rather, a regulation is valid “so long as [it] promotes a substantial government interest that would be achieved less effectively absent the regulation.” Id.; Ward v. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).
Instead of settling for effective regulations, the majority demands perfection. But perfection is hard to find in rules written and applied by mortals. Once judges start looking for imperfections, that is pretty much the end of the story — and of the regulations. No rules written by man can withstand such persnickety scrutiny.
2. The majority also trots out the time-honored technique of declaring that the rules in question don’t really solve the problems they’re supposed to solve. Maj. at 1041-42. Which reminds me of the quip about economists greeting some item of news with the observation, “That may be so in practice, but is it true in theory?” My colleagues overlook evidence in the record that the rules have actually worked — the problems they were designed to solve went away as long as the rules were in effect. See p. 1060-61 supra.
We are reviewing a grant of summary judgment against the Center; we must view the evidence in the light most favorable to it, and affirm only if there are no disputed issues of material fact. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en bane). Instead, the majority makes its own findings, such as: the rules “do not promote [Seattle Center’s] interests in any significant way,” maj. at 1041; “do[ ] not aid in coordinating multiple uses” of Seattle Center, maj. at 1042; and that most street performances pose “no realistic coordination or traffic flow concerns,” maj. at 1046. Who needs trials when we can find facts on appeal?
3. My colleagues also come up with solutions of their own, which they claim would better solve the problems. See, e.g., maj. at 1044-45, 1047. But the majority’s proffered solutions suffer from the same defects it finds in those adopted by Seattle Center, containing such fudge-words as “unwanted behavior” and “most sought-*1062after locales.” Maj. at 1043, 1045. The majority also suggests that the rules are unnecessary because the Center could solve the problems by “enforc[ing] an appropriately worded prohibition on aggressive behavior.” Maj. at 1053; see also id. at 1043. Does the majority really mean to say that the Center can’t have clear rules about obtaining permits and not trapping captive audiences, but it can kick out any street performer it deems “aggressive”?
Fortunately for my colleagues, their proposed solutions don’t need to pass constitutional muster; they can just toss them out as supposedly superior alternatives. But if the city were gullible enough to follow these suggestions, my colleagues would find reasons to strike down the new rules in the next round of litigation. This artifice can be repeated many times, to the delight of plaintiff and the general enrichment of the legal profession.
The majority plays a shell game when it confidently declares that “[t]he City’s asserted interest in coordinating multiple uses of the Center could also be achieved as effectively without the permitting requirement.” Maj. at 1045. How is the city to achieve these objectives, in the majority’s view? Why, it’s by use of the designated locations rule that the majority fails to uphold elsewhere in its opinion. And if I had ham, I could have some very nice ham and eggs, if I had eggs. Sophistries such as these are cold comfort to those who have the actual responsibility for operating an enterprise the size and complexity of Seattle Center.
4. The majority overstates the problems that the rules supposedly cause for the street performers, and minimizes the problems that the street performers caused for the Center and its patrons before the rules were instituted. For instance, the majority repeatedly describes the rules as “sweeping bans” on expressive activity. Maj. at 1053,1056,1057. In fact, no one is prevented from speaking; the rules merely regulate the time, place and manner of speech, and very lightly at that. Permits are issued on a non-discretionary, non-discriminatory basis, and the performers may conduct any performance they please, however often they want, at any time between 11:00 a.m. and 10:00 p.m., at any of sixteen designated locations. No one but the cantankerous Mr. Berger has a problem with the rules.
Citizens visiting the Center also have First Amendment rights: to enjoy the arts, music and programs offered there. Why should Berger be given a heckler’s veto over the public’s right to peaceful enjoyment of the park and that of other performers to attract an audience? Does the First Amendment really mean that citizens trying to enjoy a city park their tax dollars pay for must let themselves be browbeaten by Mr. Berger into giving him money for performances they don’t wish to watch? As Justice Breyer recently observed, “cities use park space to further a variety of recreational, historical, educational, aesthetic, and other civic interests,” and it is “perfectly proper” for cities to place “proportionate restrietion[s]” on speech in order to preserve and coordinate these other interests. Pleasant Grove City v. Summum, — U.S.-, 129 S.Ct. 1125, 1141, 172 L.Ed.2d 853 (2009) (Breyer, J., concurring).
5. The majority takes the concept of a facial challenge to extremes, conjuring up all manner of hypothetical people who could be affected by the regulations, even though there’s no real possibility that the rules will be applied in such a counterproductive manner. See, e.g., maj. at 1046 (guitar strummer at family picnic); id. (man whistling as he walks); id. at 1056 (person making “mildest remark” to someone standing in line). Plaintiffs can only raise the rights of others in an over-*1063breadth challenge if there is “a realistic danger” that the challenged rule “will significantly compromise recognized First Amendment protections of parties not before the Court.” Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). The majority may come up with any number of hypothetical ways in which the regulations could be applied, but it makes no difference because guitar-strumming picnickers and itinerant whistlers face no realistic danger of being hassled by Seattle Center authorities.
The majority also faults Seattle Center for applying its rules to street performers who are not obnoxious. Maj. at 1045-46. But that’s how rules operate: Two million travelers a day go through U.S. airport metal detectors in order to deter a few— very few- — political terrorists. The Center’s rules are designed to prevent abusive behavior, not punish those who are abusive. None of these other performers has objected to the rules and, according to the city, they are happy with them.
The irony is captured in footnote 15 of the majority opinion, which reveals that plaintiff was involved in 70 percent of the street performer complaints filed before adoption of the rules. It is fairly clear from the record that the rules were adopted largely to protect others — including other street performers — from Mr. Berger’s overly aggressive behavior. It borders on chutzpah to invoke the rights of these other individuals, none of whom has seen fit to join Mr. Berger’s suit, in striking down the rules designed to protect them from him.
6. The majority refuses to adopt the Center’s proffered narrowing construction, which would limit the permit requirement to performances “aimed at attracting an audience,” on the ground that it would make things worse, not better. Maj. at 1046^18. Yet the proffered narrowing avoids most of the majority’s examples of supposed overbreadth. A man whistling as he walks, and a few friends singing for fun on their way to a concert, are clearly not engaged in a performance aimed at attracting an audience. Nor is the guitarstrummer at the family picnic; his only audience — his family — would be gathered around him regardless of his musical skills. Professional street performers are quite different, as anyone who has watched them can attest. They often wear costumes or distinctive clothes; they frequently carry props or musical instruments; and their performance is directed at the public and not at their companions. The majority makes it sound like it would take Sherlock Holmes working closely with Hercule Poirot to figure out who the street performers are, but elsewhere it makes just the opposite point: that the permit is unnecessary because the Center authorities know exactly who the street performers are. Maj. at 1044 n. 14. The majority can’t have it both ways.
“[Ejvery reasonable construction must be resorted to, in order to save a [rule] from unconstitutionality.” United States v. Buckland, 289 F.3d 558, 564 (9th Cir.2002) (quoting Hooper v. California, 155 U.S. 648, 657, 15 S.Ct. 207, 39 L.Ed. 297 (1895)); see also Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (“Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the ehallenged[rule].”). My colleagues instead reject every reasonable construction that might get in the way of finding the rules unconstitutional.
* * *
“Public parks are often closely identified in the public mind with the government unit that owns the land. City parks— ranging from those in small towns, like *1064Pioneer Park in Pleasant Grove City, to those in major metropolises, like Central Park in New York City — commonly play an important role in defining the identity that a city projects to its own residents and to the outside world.” Summum, 129 S.Ct. at 1133-34. Seattle has a legitimate — indeed a vital — interest in maintaining the character of the multi-use facility that is the crown jewel of its civic enterprise. If the majority here is right, then Seattle and other municipalities hoping to use their parks to promote civic virtue, neighborliness, hospitality and the peaceful enjoyment of the arts cannot possibly draft a set of rules that will protect visitors, concessionaires and other artists from overly aggressive street performers bent on increasing their own visibility and income by bullying those around them.
But the majority is not right. The rules adopted by Seattle Center are a measured and reasonable response to a real problem; none of them stifles speech in any meaningful way, and none is unconstitutional. There is little I can add to the excellent analysis in Judge Gould’s opinion as to the specific rules struck down by the majority. Each of those rules is carefully tailored and narrowly drawn to deal with specific, identified problems that, in the judgment of those charged with operating Seattle Center, impaired the safety, convenience and enjoyment of visitors to the park. And, as Judge N.R. Smith explains, the performance-location rule is particularly wellsuited to the city’s legitimate objectives, while the objections to the rule — as to which a trial will now be required — are nothing but the personal preferences of the man who made the rules necessary in the first place.
It is unfortunate that such rules should be needed, as they seem largely designed to legislate civility. But Mr. Berger has been less than civil in his dealings with other performers and the public. The record, for example, references complaints against Berger for catcalling at a parent who refused to allow her children to watch his performance, bringing a child to tears for giving what Berger considered an insufficient donation and threatening and calling obscenities at a Center patron. In maintaining a hospitable campus, the Center management is surely entitled to deter such behavior by individuals profiting off its patrons.
Almost seventy years ago, the Supreme Court in Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941), unanimously upheld a state statute that required an advance permit for anyone wishing to exhibit any “theatrical or dramatic representation” or to conduct any “parade or procession upon any public street or way, and [any] open-air public meeting upon any ground abutting thereon.” Id. at 571, 61 S.Ct. 762. The Court’s reasoning is as valid today as it was then:
Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend.
Id. at 574, 61 S.Ct. 762. So long as the licensing board exercised its authority in a viewpoint-neutral, even-handed, consistent way, and the fee charged was reasonable, id. at 576-77, 61 S.Ct. 762, the permit requirement was constitutional, id. at 576, 61 S.Ct. 762:
If a municipality has authority to control the use of its public streets for parades or processions, as it undoubtedly has, it *1065cannot be denied authority to give consideration, without unfair discrimination, to time, place and manner in relation to the other proper uses of the streets. We find it impossible to say that the limited authority conferred by the licensing provisions of the statute in question as thus construed by the state court contravened any constitutional right.
Cox dealt with parades on public streets, but the Court reached the same result when an identically-worded city ordinance was applied to require a license to hold a religious meeting in a public park:
The principles of the 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. It is a non sequitur to say that First Amendment rights may not be regulated because they hold a preferred position in the hierarchy of the constitutional guarantees of the incidents of freedom. This Court has never so held and indeed has definitely indicated the contrary. It has indicated approval of reasonable nondiscriminatory regulation by governmental authority that preserves peace, order and tranquillity without deprivation of the First Amendment guarantees of free speech, press and the exercise of religion. When considering specifically the regulation of the use of public parks, this Court has taken the same position.
Poulos v. New Hampshire, 345 U.S. 395, 405-06, 73 S.Ct. 760, 97 L.Ed. 1105 (1953). Poulos included an admonition that my colleagues would do well to heed: “There is no basis for saying that freedom and order are not compatible. That would be a decision of desperation. Regulation and suppression are not the same, either in purpose or result, and courts of justice can tell the difference.” Id. at 408, 73 S.Ct. 760.
Twelve years later, in the other Cox case, Justice Goldberg, writing for the Court, emphasized the continued validity of Cox and Poulos and the importance of rules in maintaining the very concept of civil liberties:
The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection.
It is, of course, undisputed that appropriate, limited discretion, under properly drawn statutes or ordinances, concerning the time, place, duration, or manner of use of the streets for public assemblies may be vested in administrative officials, provided that such limited discretion is “exercised with ‘uniformity of method of treatment upon the facts of each application, free from improper or inappropriate considerations and from unfair discrimination’ ... [and with] a ‘systematic, consistent and just order of treatment, with reference to the convenience of public use of the highways ....’” Cox v. New Hampshire, supra, at 576, 61 S.Ct. 762. See Poulos v. New Hampshire, supra.
*1066Cox v. Louisiana, 379 U.S. 536, 554, 558, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965) (alterations in original).
Cox v. New Hampshire and Poulos have never been overruled, so far as I know; indeed, the Court has built on them. See, e.g., Ward, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (upholding New York’s sound-amplification guideline in Central Park); Heffron v. Inf’l Soc’y of Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981) (state’s interest in maintaining the orderly movement of the crowd at annual state fair sufficient to support requirement that religious group confine its distribution, sales and solicitation activities to a fixed location); Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed.2d 772 (“municipalities have a weighty, essentially esthetic interest in proscribing intrusive and unpleasant formats for expression”).
The majority turns up its nose at Cox and Poulos, on the ground that “both cases preceded the development by the Supreme Court of specific time, place and manner standards,” maj. at 1042-43, but the Supreme Court recently relied on them in Thomas v. Chicago Park District, 534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002), where it (again unanimously) upheld a licensing requirement for any activity in a public park that exceeded 50 participants. In so doing, the Court reiterated the distinction between permits designed to censor and those designed to regulate competing uses in public areas:
“[Tjhe [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. 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.
Id. at 323, 122 S.Ct. 775 (citations omitted, alterations in original). The Court didn’t ask why the city couldn’t let all gatherings go forward, and then break up those that got out of hand. Rather, the Court accepted the city’s estimate that a gathering of more than 50 people could cause problems and upheld the permit requirement.
Unlike the circuit opinions on which my colleagues rely, these Supreme Court cases — an unbroken line spanning more than six decades — are controlling authority, and we are bound to follow them. Applying these cases to the facts before us, I note that Seattle Center is the type of public gathering place that the Court dealt with in Poulos, Ward, Heffron, Thomas and Summum. The concerns that gave rise to the permit requirement and other regulations here are much the same as in those cases, and in Cox v. New Hampshire and Vincent as well. Despite the majority’s obvious desire to reach the opposite conclusion, maj. at 1037, 1042 n. 9, we are bound to assume that the permit requirement has been administered in a neutral fashion and does not give Seattle Center authorities undue discretion, as Berger has never contended otherwise.
To me, this makes the case before us materially indistinguishable from these Supreme Court cases. The only significant differences cut sharply in favor of upholding the permit requirement. First, the rules here are considerably less restrictive. As the majority recognizes, “the permitting schemes at issue in Cox and Poulos both required applicants to ‘specify the day and hour’ that they planned to hold their parade or public meeting.” Maj. at 1042. Here, a single permit entitles the *1067holder to perform at any time he wishes between 11:00 a.m. and 10:00 p.m., for as long as he wishes, in any of the designated locations, for an entire year. The majority somehow finds that this weighs against the Center, taking it as proof that the permits do not “further the government’s interest in coordinating multiple uses of limited public space.” Id. This is very strange reasoning. If the Center believes that it doesn’t need a more restrictive permit to serve its ends, who are we to say that the restrictions are inadequate? The majority’s clumsy effort to distinguish away the Cox line of cases stands the concept of narrow tailoring on its head.
The majority also criticizes the permit requirement because, unlike in Thomas, it’s not limited to performances attracting a certain minimum audience. Maj. at 1046-47, 1057-58. But the majority overlooks Poulos v. New Hampshire, where the Court upheld a permit requirement for groups of any size wishing to hold an “open air public meeting” in a city park. 345 U.S. at 397 n. 2, 402-08, 73 S.Ct. 760; see also Cox v. New Hampshire, 312 U.S. at 571-72, 576, 61 S.Ct. 762. Thomas, in turn, relied on Poulos and Cox. 534 U.S. at 323, 122 S.Ct. 775.
The majority’s distinction is nonsensical, in any event. When a permit is required for public meetings, as in Thomas and the other cases the majority relies on, the organizers can be expected to know, based on the degree of public interest, advertising and outreach, how large a group is likely to show up. The license the Center issues here is quite different: It is good for an entire year and entitles the bearer to perform hundreds or even thousands of times. The size of the crowd on any given day, at any particular hour, may be hard to predict, but it doesn’t matter, as long as the Center reasonably believes that on some days, at some hours, a sufficiently large crowd may gather to impair the efficient operation of the Center.
It’s ridiculous to suggest that performers may be required to obtain permits if the crowd that gathers to see them is of a certain size, but not if it is not. How is anyone to know in advance? Depending on the performer’s popularity, the day of the week, the hour of the day and the availability of other attractions, a larger or smaller crowd may gather. What is the performer to do, if he doesn’t have a permit? Must he count the crowd to make sure it doesn’t exceed the limit and ask some to leave if he realizes there are too many? Should he stop the performance until the crowd disbands? When dealing with a performer who may give 20 or 30 performances a day, 20 or 25 days out of every month, using a numerical limit on the size of the audience, as the majority envisions, just doesn’t make any sense; it is certainly not constitutionally required. The city can reasonably presume that when people engage in activities designed to gather a crowd, they will get a crowd often enough to render the activity the legitimate object of regulation.
The simple fact the majority overlooks is that street performers like Berger are not merely citizens who wish to use the park as a forum for public expression or religious worship on an occasional basis; they are operating a business and earning a living from these activities. They are repeat players — a continuing presence at the Center — taking advantage of the crowds generated by Seattle Center’s organization and industry to promote their own economic well-being. To be sure, the business that these performers engage in does involve communicating with the public, and can be characterized as art or at least craft, so it deserves First Amendment protection. But there are many businesses whose object is communicating with the *1068public: theaters, cinemas, art galleries, record shops, night clubs, advertising agencies, investment advisors — the list is long and varied. No one has ever suggested that theaters, say, are exempt from fire laws, building codes, labor-relations regulations, taxes or the multitude of other non-content related laws that are applicable to any other business. The First Amendment simply doesn’t sweep so far. See, e.g., One World One Family Now v. City & County of Honolulu, 76 F.3d 1009 (9th Cir.1996) (upholding a ban on sidewalk sale of message-bearing t-shirts).
Berger and other street performers are actors without a theater, circus performers without a tent. Not having a fixed facility, they perform in open spaces where people gather in the expectation that those who watch them will reward them. And this is not an idle hope: Rewarding street performers whose act one watches is a bit like tipping at hotels and restaurants — a social obligation that is not legally enforceable but many people feel bound to honor.
The commercial aspects of the street performer trade, which my colleagues overlook, set up the dynamics that have given Seattle Center cause for concern. A street performer’s income depends on the crowd he is able to draw, so location is a very important issue — hence the strife about who gets to perform at the choicest spots. The economic incentive also can lead to aggressive solicitation of patrons, and rude remarks when patrons give what the performer believes is an insufficient donation. The economic incentive may lead street performers to find captive audiences — say, people standing in line — and start performing near them, hoping to guilt them into making a donation even if they have no particular interest in the performance.
Social conventions often create very strong obligations — such as when one leaves a sizable tip after receiving lousy table service to avoid an unpleasant reaction from the waiter — and people standing in line who have had the “benefit” of a street performance that they did not seek out or enjoy may feel pressured to cast down a dollar or two, just so others won’t consider them to be moochers. The patrons may nevertheless feel put upon, and their Center experience may be tainted by having been buffaloed into this transaction.
The Supreme Court in Summum drew a distinction between traditional public speakers who, “no matter how long-winded, eventually come to the end of their remarks,” 129 S.Ct. at 1137, and monuments in public parks, which “endure.” Id. Because monuments are a permanent fixture of the facility, they “monopolize the use of the land on which they stand and interfere permanently with other uses of public space.” Id. Street performers, like plaintiff here, fall somewhere in between these two extremes: They do go home at the end of the day (like occasional public speakers), but they come back the next day and the day after that, on a permanent or semipermanent basis. Each performance may attract a relatively small audience compared to a speech or a rally, but each performer will be constantly gathering crowds. A facility like Seattle Center can’t accommodate an unlimited number of such performers; if there are too many at the same time, or at the same location, they begin to “interfere permanently with other uses of public space.” Id. Cities therefore have a far greater interest in regulating the activities of permanent street performers than occasional political or religious speakers.
If, as the Supreme Court has held, municipalities have the authority to regulate eleemosynary and volunteer activities— even bible classes — in public spaces, to preserve the safety and convenience of individuals using the public facility, then *1069surely they have the authority to regulate street performers, who are operating small businesses within a complex that the city maintains and nurtures. My colleagues in the majority eschew this obvious conclusion by means of two arguments, neither particularly persuasive.
First, my colleagues take the view that the permit requirement is invalid because it serves no legitimate purpose, but they are mistaken, as Judge Smith persuasively demonstrates in his separate opinion. Smith at 1086. I note, to begin with, that when the Supreme Court has upheld permit requirements, it has not demanded a particularly rigorous, or any, justification for them, relying instead on the obvious and common-sense reasons to require a permit. In Cox v. New Hampshire, the court merely referred to “[t]he obvious advantage of requiring application for a permit” with no suggestion that this advantage had to be proven up to any degree of certainty. 312 US. at 576, 61 S.Ct. 762. In Poulos and Thomas, the Court made no reference whatsoever to the efficacy of the permit requirement. In all three cases, the Court’s focus was on whether the permit was administered in a content-neutral, objective and non-discriminatory fashion and, having satisfied itself that it was, the Court did not consider efficacy to be an independent constitutional requirement. See also Heffron, 452 U.S. at 650-53, 101 S.Ct. 2559 (not questioning efficacy of requirement that religious group operate from a fixed location at state fair).
It’s thus not clear that, when considering a licensing scheme for holding a public event such as a bible study, performance or parade in a place where there are competing or inconsistent uses, the licensing authority has to make a very convincing showing — or any showing at all — that the license serves the desired purpose. We can assume, as has the Supreme Court on more than one occasion, that the city wouldn’t devote the time and resources to administering such a scheme unless it served to reconcile the various competing uses.
But if a purpose there need be, it is pretty obvious what it is here: To deter unruly behavior on the part of street performers by denying them the cover of anonymity, and to give Seattle Center authorities a means of holding them accountable when they do misbehave. To start with the obvious, requiring a street performer to obtain a permit gives Seattle Center authorities an address where they can write to him if issues arise; there is such a letter, dated October 3, 2003, in the record. Without such an address, how do the authorities proceed when they want to give the performer notice of an alleged violation? How do they notify him of their decision?
Requiring a street performer to have a license and display a badge, which can be suspended or revoked, also facilitates the imposition of discipline. If the performer is found guilty of a violation, the badge can be taken away for the duration of any suspension, or permanently, and security officers can then enforce the performance ban by stopping performances by anyone who does not display a badge. This eliminates the need to check records or settle disputes about whether or not a suspension is in effect.
Requiring a badge also makes it more likely that individuals aggrieved by the performer’s misconduct will be willing and able to report it. The badge informs the public that the performer can be reported to Seattle Center if he misbehaves. Members of the public are far likelier to lodge a complaint against someone with an official badge than someone who appears to be an independent private party. The badge in this situation serves the same purpose as *1070badges and name-tags worn by law enforcement officers, supermarket clerks and hotel staff — it is a way of making misconduct less likely by significantly increasing the risk that it will be reported.
The requirement that the performer provide a name and display a badge also avoids confusion and misunderstandings. My colleagues in the majority may think it’s perfectly OK to identify performers by such colloquial descriptions as “the hula-hooping magician” or “the puppet guy,” maj. at 1044 n.14, but that’s no way to run a monorail. What if the puppet guy is hit with a suspension and claims that the culprit was really the marionette guy, or that the hula-hooping magician was really the balloon-animal magician? The complainants in such cases may be tourists from another state, long gone from the scene before the dispute can be resolved. A badge with a name and picture avoids such misunderstandings and makes it far less likely that street performers will misbehave — which, of course, is the ultimate objective.
The Center could, as the majority suggests in places, call the police when street performers seriously misbehave, but it is hardly conducive to maintaining a pleasant atmosphere in the park to have the man in the clown suit hauled off in handcuffs. And how many people want to spend their vacation getting into a head-to-head confrontation with someone obnoxious, or tracking down security personnel and filling out police reports? Most people who are victims of inappropriate or rude behavior register their protest with their feet: They walk away from the place of the unpleasantness and don’t come back. And they tell their friends and neighbors in Pittsburgh and Wilkes-Barre that this is not where they should spend their vacation dollars.
And, of course, much inappropriate behavior, like that plaintiff is accused of, see p. 1064 supra, falls far short of a criminal offense. I doubt that the Center can have someone arrested for calling a visitor a «jyp****p*****>; — ag pia}ntiff is charged with doing. The majority’s suggestion that police can demand identification and an address from misbehaving street performers, maj. at 1044-45, suffers from the same problem: Police can demand identification only when they have “reasonable suspicion to believe the suspect was involved in criminal activity,” not when they believe that someone’s been obnoxious and disruptive. Hiibel v. Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177, 184, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). Police who tried to force Mr. Berger to identify himself when he throws one of his hissy fits would soon find themselves as defendants in a civil rights lawsuit.
And yet, Seattle Center “play[s] an important role in defining the identity that [the] city projects to its own residents and to the outside world.” Summum, 129 S.Ct. at 1134. Misbehavior by performers who are a constant presence at the Center is a disaster in the making for an enterprise whose mission it is “to delight and inspire the human spirit in each person and bring us together as a rich and varied community.” http://www.seattlecenter.com/ information/default.asp. It may be true that public parks need not reflect “a ‘Truman Show1 version of pristine placidity,” maj. at 1059, but the First Amendment surely doesn’t require that our parks resemble The Aristocrats either.
Operating a huge enterprise like Seattle Center, one that caters to the needs and wants of tens of thousands of visitors on an average day, is an enormously difficult and complex task. Maintaining the goodwill of the public and support of the community over the decades is at the heart of that success. When the people responsible for that enterprise tell us that a content-neu*1071tral, non-discriminatory permitting requirement has been effective in solving a serious problem that has been eroding that goodwill, it takes considerable hubris for judges to say they know better.
The second theory under which the majority finds fault with the permit requirement is the supposed impermissibility of “single-speaker registration requirements.” Maj. at 1037-40. This is a curious theory, because none of the cases on which my colleagues rely makes any reference to the number of speakers involved, and certainly none mentions the size of the group as being dispositive. All of the cases on which the majority relies were solicitation cases; one can assume that the group of speakers involved would have been small by the nature of the activity. But the theories under which the Court struck down the permit requirements in those cases were varied and had nothing to do with the size of the group.
In Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), for example, the Court struck down a state statute which forbade the solicitation of money for religious causes unless the solicitors obtained a certificate from a government official, who was required to determine that the cause in question was, indeed, religious. The Court struck down the requirement because the statute authorized a government official “to withhold his approval if he determines that the cause is not a religious one. Such a censorship of religion as the means of determining its right to survive is a denial of liberty protected by the First Amendment. ...” 310 U.S. at 305, 60 S.Ct. 900. The size of the soliciting group was not even mentioned; indeed, the Court made it clear that “general regulation, in the public interest, of solicitation, which does not involve any religious test and does not unreasonably obstruct or delay the collection of funds, is not open to any constitutional objection, even though the collection be for a religious purpose.” Id. Cantwell undermines rather than supports the majority’s theory.
This is true of each of the other cases the majority draws upon for its theory, including Watchtower Bible & Tract Society of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002), on which the majority places the heaviest reliance. Watchtower was a case involving door-to-door canvassing by a religious group. In striking down a requirement that the canvassers first obtain a permit from the town authorities, the Court pointed to a number of factors, none of which had anything to do with the number of canvassers, among them “the historical importance of door-to-door canvassing and pamphleteering as vehicles for the dissemination of ideas,” id. at 162, 122 S.Ct. 2080; that the canvassers were not engaged in the solicitation of funds, id. at 165, 122 S.Ct. 2080; the legitimate interest of some canvassers in anonymity, id. at 166, 122 S.Ct. 2080; that the advance permit requirement inhibits some spontaneous speech, id. at 167, 122 S.Ct. 2080; and that residents could ward off all canvassers by posting legally enforceable “no solicitation” signs, which petitioners promised to respect, id. at 168, 122 S.Ct. 2080. None of these factors is even remotely applicable to our case: Balloon animals and magic tricks don’t feature the dissemination of ideas, street performers do solicit funds, sometimes quite aggressively, and there is no legally enforceable way for patrons to keep Berger from trying to lure their children to come watch him or prevent him from insulting them when they resist. Finally, despite the majority’s repeated assertions otherwise, maj. at 1038 n. 5, 1043-44, street performers have little interest in anonymity. Hula-hooping magicians and puppeteers are hardly advocates for “unpopular causes,” Watchtower Bible, 536 *1072U.S. at 167, 122 S.Ct. 2080; they are entertainers, and gaining public recognition will only help their businesses. Watchtower and our case have about as much in common as bananas and boomerangs.
The most one can say about the cases that form the backbone of the majority’s analysis is that the Court has been reluctant to approve restrictions on the rights of individuals and small groups to engage in discourse with other individuals and small groups — the kind of interactions that always arise in solicitation, canvassing or hand-billing cases. This is not really surprising, because individual-to-individual and small group-to-small group interactions generally do not pose the sort of problems that time, place and manner rules are designed to deal with. Moreover, they are very much like the interactions almost everyone has during the course of his daily life — striking up conversations with others on the street, in his neighborhood or in public places. It may thus be fair to infer a presumption against laws prohibiting such small-group interactions.
But it is a wholly different matter to derive some sort of rule that prohibits — or strongly discourages — regulation of speech by a single individual, regardless of the size of his expected audience or the disruption he may cause. Nothing in the Supreme Court’s caselaw supports any such proposition, and there is much to refute it. Take the following examples, which strike me as so obvious that no case citation is necessary:
• A municipality prohibits people from falsely yelling fire in a crowded theater. Is there a constitutional exception for a single individual? I don’t think so. Why? Because the effect of the single speaker on the crowd of people thrown into panic can be disastrous.
• A famous civil rights leader plans to hold a speech at the Lincoln Memorial; the speech is eagerly anticipated and half a million or more people are expected to attend. According to the majority’s flawed theory, the city of Washington could not require the speaker to register in advance, or give the city notice that a large audience is expected. Indeed, any number of independent single speakers would be entitled to show up unannounced and give their speeches at the very same time and place. There’s nothing in the Supreme Court’s caselaw that remotely supports that proposition.
• Yo-Yo Ma is probably the greatest cellist of our time, and a free concert for the benefit of the people of Los Angeles would surely be greeted with enthusiasm. But if Mr. Ma wanted to set up his cello in the third lane of the West-bound Santa Monica Freeway adjacent to the Robertson exit, I have no doubt that the California Highway Patrol could engage in prior restraint by preventing him. That Yo-Yo Ma is a single artist of remarkable talent would have no effect whatsoever on that result.
• Mr. Nez, who lives in Pasadena, wants to hold a parade celebrating the Festival of Noses. And he wants to follow the route that is followed every year by another parade with a very similar name — starting north on Orange Grove Avenue near California, then turning east on Colorado for about 5 miles. Unfortunately for Mr. Nez, no one else shares his enthusiasm, so he decides to hold a one-man parade, carrying a giant paper mache replica of Jimmy Durante’s head. Having read the majority’s opinion, he believes that he needs no parade permit since he is, after all, a single performer. So, about 9 a.m. on January 2, he dons a *1073top hat and tails, holds high the effigy of The Schnozz and starts walking north on Orange Grove straddling the double yellow line. My guess is that the Pasadena police would pick him up and give him a jaywalking ticket (or worse) long before he got to Colorado. His First Amendment defense would get about as far as his parade.
I could go on, but these “silly” examples, maj. at 1058, are enough to put to rest the fatuous notion that single speakers are entitled to favorable treatment under the First Amendment. Rather, the decision always hinges on the interaction between the speaker and the activities affected by him or his speech. If you go to the desert, you can shout “fire” as loudly and as often as you wish. You can bring a thousand friends with you and all of you can shout “fire” day and night, in unison, in sequence or to the rhythm of Bolero. You can sing about cesium and recite poems about arson; you can arrange a parade celebrating fire, or noses or whatever you wish. So long as there’s no one to be bothered, there’s little the government can or should be able to do to stop you. But if you are in the city, if you are at a mall, if you are at a stadium where thousands of people are crowding onto moving escalators, then we can reasonably expect you to be much more circumspect about what you say and where you say it, because the effect on others may be disastrous.
Context is everything in First Amendment analysis and the majority’s single-speaker rule fails because it doesn’t take context into account. Even if, as the majority suggests in places, its single-speaker rule would only apply to speakers who attract audiences of less than 75 or less than 100, maj. at 1046,1058, any such rigid numerical rule will fail because it makes no account for the performance’s effect on others. The performances by Mr. Ma and Mr. Nez, for instance, would be seriously disruptive whether they gathered a large audience or no audience at all. In deciding whether Seattle Center can require advance registration of street performers, it matters not at all whether they involve a single performer, like plaintiff, two jugglers or twelve lords-a-leaping. What matters is that street performers are out for donations, and donations increase with the size of the crowd the performers attract. Thus, attracting crowds is not merely an unforeseen by-product of street performing, it is its sine qua non: A street performer who never gathers an audience would give up the pursuit very quickly.
Crowds, of course, are worrisome when dealing with large groups of people moving through a restricted area like Seattle Center and thus are a legitimate thing for the authorities to be concerned about. They can also legitimately be concerned about how performers interact with the crowds they attract, and the effect they have on the public goodwill which is, after all, the lifeblood of the Center’s mission. The regulations the Center put into place to address this problem are sensible and measured. There is no evidence whatsoever that the rules have been applied in an oppressive or discriminatory manner, that they have been enforced against teenagers strumming their guitars at family picnics, or against people whistling while they walk, or against political canvassers.
All of these are figments of the judicial imagination — a fertile imagination, to be sure, but woefully out of touch with the realities of running a complex enterprise which brings joy to millions of people a year. By focusing on the largely imaginary First Amendment injuries which might be suffered by largely imaginary people, my colleagues impair the First Amendment rights of the millions of actual people who come to Seattle Center to see, to hear, to learn, to enjoy, without being *1074subjected to the stress of dealing with overly-aggressive street performers who shout obscenities and send young children off crying. There are times when the best thing judges can do is to butt out; this is surely one of them.