NYC weighs street character law

NEW YORK (AP) – A summer spike in costumed characters behaving badly in Times Square – most recently a Spider-Man accused of punching a police officer – has turned up the heat on plans to regulate the legions of Elmos, Cookie Monsters and Statues of Liberty who often demand money for posing in photos with tourists.

“This has gone too far,” a frustrated Mayor Bill de Blasio said this week. “It’s time to take some real steps to regulate this reality.”

But that could be easier said than done. Legal experts say proposals for a city law to rein in the characters – possibly by requiring licenses and background checks – could violate free-speech rights.

At issue, they say, is whether the characters can be considered a form of street performance, protected by the First Amendment, or a form of commercial activity subject to regulation.

It’s a distinction that varies from character to character, and comes down to whether they merely hope for tips or demand money, which some tourists have complained is often accompanied by hounding and harassment.

“If you can prove that they are there to seek money, not simply conveying a message … they are subject to greater regulation,” said University of California constitutional law professor Jesse Choper.

George Washington University constitutional law professor Jonathan Turley agreed but said any such regulation must be written carefully to avoid selective or arbitrary enforcement. Singling out just those who wear costumes, for example, could be problematic.

“People are physically assaulted every day in New York City, whether they’re costumed characters or in business suits or in bathing suits. And when politicians call for regulating someone in a costume, it’s clearly inane,” Turley said. “You have people on Wall Street who violate the law, and we don’t subject people in Armani suits to special regulations.”

City Council members Dan Garodnick and Andy King have drafted similar proposals requiring licensing and background checks, though King’s would also require that costumed performers wear a picture ID.

De Blasio spokeswoman Marti Adams said the administration is currently reviewing the potential legislative remedies, adding: “It is well settled that even with respect to activity otherwise protected by the First Amendment, the city can enact laws designed to protect public safety.”

Donna Lieberman, executive director of the New York Civil Liberties Union, said she does not support licensing of the costumed characters.

“The appropriate response is to apply existing law; there are many police officers patrolling Times Square, so when someone does something problematic, they should intervene,” she said. “Times Square is a gathering place, and I think our existing laws are adequate for public safety.”