FIRE to Laguna Beach City Council: Let street performers perform

Mike Bolger is an award-winning professional musician and street performer from Los Angeles with a diverse resume. If you’ve listened to Red Hot Chili Peppers, Jewel, or Jimmy Cliff — or watched SpongeBob SquarePants — you might have heard him playing trumpet or accordion. 

But thanks to Laguna Beach’s unconstitutional restrictions on street performances, one place you won’t hear him making music is the Forest Avenue Promenade, a vibrant pedestrian mall in the heart of the city’s downtown. 

Founded as a bohemian art colony in the early 20th century, Laguna Beach is perhaps the last place you’d expect to find “Footloose”-esque crackdowns on public artistic expression. But like a college with a campus “free speech zone,” the city prohibits street performances on the promenade outside of a small “performance deck” — known as the Stage on Forest — and even that area is accessible only to performers who meet the city’s approval and obtain a permit. The city enforced the policy against Bolger earlier this year, stopping him from playing outside the performance deck.

In a letter sent to the Laguna Beach City Council today, FIRE explained that the city has no authority to so drastically limit expression in a traditional public forum like the Forest Avenue Promenade. 

Laguna Beach opens promenade, suppresses artistic expression

Laguna Beach opened the Forest Avenue Promenade in the summer of 2020 by closing off a portion of Forest Avenue to vehicular traffic. One year later, the city enacted a policy stating that nobody may perform on the promenade without a permit, and permitted performances must take place on the Stage on Forest. 

The city’s definition of “perform” includes doing any of the following for public entertainment: “playing musical instruments, singing, dancing, acting, pantomiming, puppeteering, juggling, reciting, engaging in magic, creating visual art in its entirety, or similar artistic endeavors.” (Apparently you may paint someone’s portrait without a permit, but only if you walk off the promenade before adding the final brushstroke.)

When applying for a permit, performers must provide a “detailed description” of the “nature of the act,” its “genre,” and any instruments or props they will use. The application form also prompts performers to provide a website link to a sample of their work.

The policy further grants the city discretion to schedule performances and determine the performance deck’s availability “based on seasonality, business needs and other city programming.” The city must decide within 10 business days whether to grant a permit to a performer, but otherwise the policy doesn’t impose any restraint on administrators’ discretion to grant or deny a permit.

Police officer stops Bolger from busking on the promenade without a permit

In the summer of 2021, Mike Bolger began traveling from his native city of Los Angeles to perform scheduled shows at The Drake, a Laguna Beach restaurant and live entertainment venue. To beat rush-hour traffic, he would leave early and spend time before the shows playing his accordion and trumpet — simultaneously — on the streets of Laguna Beach. 

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Bolger initially avoided the Forest Avenue Promenade after seeing a sign indicating a permit was required to perform there. Later, however, Bolger noticed the city had removed the signage, so he began busking on the promenade near restaurants with outdoor dining.

But the policy was still in force.

In April, a police officer stopped Bolger while he was busking on the promenade and told him someone had called in a complaint. The officer informed Bolger he couldn’t perform on the promenade without a permit.

Under the promenade policy, a juggler who draws at most 3-4 spectators at a time needs a permit while a street preacher who draws a crowd of 30 people does not. 

Bolger then emailed Laguna Beach’s arts program coordinator, who confirmed that playing music on the promenade requires a permit, performances may only take place within the designated area, and the city schedules performances only for Friday, Saturday, and Sunday evenings, as well as select first Thursdays for the local Art Walk event. 

And the promenade, the arts program coordinator added, was booked for more than six months into the future, through fall 2023.

You don’t need the government’s permission to express yourself in a public forum

The First Amendment does not allow Laguna Beach to ban all street performances on the Forest Avenue Promenade other than those approved and scheduled by the city for one small, designated area.

The U.S. Court of Appeals for the Ninth Circuit — by whose decisions Laguna Beach is bound — has recognized that a pedestrian mall that operates as a commercial district and public thoroughfare constitutes a traditional public forum, just like any public park, street, or sidewalk. These outdoor public areas are where our free speech rights are at their apex. 

The promenade policy violates Bolger’s and other performers’ First Amendment rights by imposing an unconstitutional prior restraint, meaning it stops speech before it even begins. 

To make matters worse, the policy targets expression based on its content. It applies to promenade visitors who want to play the guitar, recite a poem, or mime being trapped in a box for public entertainment. But it doesn’t apply to those who want to pass out handbills, picket, or preach the gospel (as long as they do not sing gospel). Plus, the permit application inquires into the specific nature of applicants’ acts and requests recordings of their past performances.

Under the First Amendment, Laguna Beach must show that the policy is narrowly tailored to advancing a compelling government interest. That’s an extremely demanding standard, which the city cannot meet.

Laguna Beach does not have a legitimate interest — let alone a compelling one — in limiting access to a traditional public forum based on city officials’ subjective taste in art or music.

Existing precedent is not on the city’s side. In Berger v. City of Seattle, the Ninth Circuit struck down a similar policy that required street performers obtain a permit to perform on the Seattle Center grounds. While the government can, under certain circumstances, require permits for large group gatherings, the Ninth Circuit emphatically declared that neither it nor the Supreme Court have “ever countenanced” a policy that “requires single individuals to inform the government of their intent to engage in expressive activity in a public forum.” 

Laguna Beach claims it has an interest in regulating street performances to prevent large crowds from forming, but this justification for the promenade policy is dubious. Crowds are just as likely — if not more likely — to form in the area near the performance deck during city-approved performances, which generally take place during weekend evenings. 

Not to mention, speakers who do not need a permit because they aren’t “performing” are also capable of attracting crowds. Under the promenade policy, a juggler who draws at most 3-4 spectators at a time needs a permit while a street preacher who draws a crowd of 30 people does not. 

We’ve been here before. The Ninth Circuit in Berger invalidated the Seattle Center permit requirement in part because it was “not limited to only those performers who seek to attract (or who do, in fact, attract) a crowd of a sufficiently large size.”

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Even assuming Laguna Beach has a compelling interest in preventing large crowds from forming on the promenade, the city must pursue that interest through less speech-restrictive means. For example, police can disperse crowds when they become so large that they block pedestrian traffic.

As our letter explains:

Laguna Beach’s policy is even more restrictive than the unconstitutional policy in Berger — it categorically bans street performances almost everywhere on the Promenade and requires a permit for the one small area that performers can access. Even the designated performance area is generally open only three nights per week and is unavailable through the fall of 2023. In other words, for at least the next several months, Bolger and other street performers unable to secure one of the performance deck’s limited time slots are completely shut out of a traditional public forum.

We further noted that the permit application’s intrusive inquiry into the nature and genre of applicants’ planned performances does not promote the city’s safety interests:

Rather, it simply provides a way for the city to reject artists based on the content of their performances. Laguna Beach does not have a legitimate interest — let alone a compelling one — in limiting access to a traditional public forum based on city officials’ subjective taste in art or music.

And the promenade policy grants city officials’ limitless discretion to decide whether to grant permits — yet another reason it violates the First Amendment.

FIRE calls on Laguna Beach’s government to rescind or amend its unconstitutional restrictions on street performances and to preserve the city’s long tradition of supporting the arts.

We asked the city to respond to our letter by Aug. 28.