The Justice League of America enjoyed some American Justice on November 17, 2010, when District Court Judge Dean D. Pregerson issued a preliminary injunction preventing the City of Los Angeles from selectively removing costumed superheroes from the street in contravention of their First Amendment Rights.

The street performers in question regularly dress as superheroes and position themselves on Hollywood Boulevard, taking pictures with tourists in exchange for tips. This constitutes a full-time occupation for many of the performers.

The relationship between these street performers and the LAPD has recently soured, culminating in the arrest of at least two-dozen performers since last June. Although the arrests are nominally over municipal code violations, such as sidewalk crowding, the performers have alleged that police threaten them with arrest and removal even when they are not violating the city’s municipal code.

The conflict ultimately boils down to the performer’s right to freedom of speech and expression and the city’s belief that they constitute a menace to tourists. On August 6, 2010, a group of performers filed a complaint against the city in a California federal court alleging a violation of their Constitutional right to freedom of speech under targeted enforcement by the LAPD. The plaintiffs, Matthias Balke, Melissa Beithan, Paul Harrell, and Terrell “Tony” Tomey, who dress respectively as Wolverine, Catwoman, the Joker, and Batman, were each arrested for code violations in May and June.

Batman 2The Plaintiffs allege, inter alia, that the city had no legal justification for what they describe as “targeted” arrests, and that the city’s actions constitute threatening, coercive, and intimidating actions designed to deprive them of their right to freedom of expression. The city argued that the performers are a nuisance, sometimes congregating in groups of sixty and physically blocking city streets until tourists took pictures with them in exchange for tips.

Ultimately, Judge Pregerson sided with the performers, and issued a preliminary injunction preventing the LAPD from targeting the performers. In his opinion, the Judge noted that although costumed performance is not a traditional form of free speech, it is no doubt a protected one.

The city has not decided whether or not it will appeal the injunction. In the meantime, the superheroes have a federal opinion characterizing their characterizations as Constitutionally protected free speech. But it is clear the city is not happy, evidenced by comments of the President of the Chamber of Commerce, Leron Grubler, who views the superheroes as a menace and thinks Judge Pregerson failed to take the performer’s actual actions into account. Although the performer’s speech is protected, Judge Pregerson might have provided the city’s lawmakers with some wiggle room by noting in his opinion that while the LAPD here provided no evidence supporting targeted enforcement, some city laws against solicitation are content neutral and acceptably advance legitimate city objectives. Tourism is certainly a large and important industry in LA, and the city’s crackdown began with complaints from several business owners. It remains to be seen whether the city can craft an ordinance that is both content neutral and protective of the performer’s right to free speech while satisfying city administrators and local businesses. However, until the city makes its next move, these caped (and otherwise attired) crusaders are free to entertain on the streets of LA.

— Alexandra L. Pichette

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