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The Honolulu Advertiser
Posted on: Tuesday, November 29, 2005

Street artists law must be narrowly tailored

Unless it is careful, Hono-lulu could set itself on yet another round of expensive and time-consuming legal wrangling with the latest proposal to regulate street performers in Waikiki.

There's a delicate balance here of protecting public health, safety and the aesthetics of Waikiki while preserving important free-speech rights.

The issue is not strictly the free-speech rights of the drummers, buskers and "silver men" who set up along Kalakaua. Rather, the issue is the free-speech rights of anyone who wishes to gather or speak in a public place.

What's needed is a compromise that preserves public safety and public order while allowing as much unfettered "expression" as possible in this most public of spaces. The answer does not lie in "banning" speech, even on a limited basis, but rather "regulating" it and steering it to where it is most appropriate.

Several years ago, the city proposed a rather sweeping ban on street performers in Waikiki that was eventually thrown out by the courts as presumptively unconstitutional.

The latest proposal by Councilman Charles Djou is more narrowly tailored. It would ban street artists only between 7 and 10 p.m. and only on a four-block stretch fronting the International Marketplace.

This plan clearly aims at "time, place and manner" restrictions on public "speech" that have survived court tests.

But the restrictions are also no coincidence aimed at precisely the time and place where the street artists are most active because this is the time and place where the best opportunities lie.

It's true that the street performers sometimes generate crowds that make pedestrian traffic difficult. A study commissioned by the city says the crowds sometimes force people into the street, an "accident waiting to happen."

Yet there is little hard evidence of specific injury or serious inconvenience attributable to the performers.

Mayor Mufi Hannemann is on target in saying that the best approach is, rather than banning activities in some areas, to encourage street performances in other areas. This would be a case of saying "yes" to speech rather than "no," which invites constitutional challenge.

The city should also look at the experience of other cities, such as San Francisco, which licenses street performers for a relatively small fee and then sets standards for who is allowed to perform.

A licensing scheme might result in fewer mimes painted in silver and more folks making lei or offering impromptu Hawaiian music. In short, a stronger sense of place.

Waikiki is an important public space that must be preserved for public speech of all kinds. A narrowly tailored regulatory plan that recognizes the right of free speech but also adds to the aesthetic and public safety of the area might just pass muster.