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How to curb costumed characters in Times Square? Officials cite First Amendment quandaries

Posted Apr 11, 2013 5:55 AM CDT
By Debra Cassens Weiss

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The number of costumed characters in New York’s Times Square is growing, but city officials can do little to curb the furry population explosion.

The arrest of a Cookie Monster character accused of tangling with a toddler over a tip has brought the issue into the spotlight. Council speaker and mayoral candidate Christine Quinn explained in a news conference why officials are hamstrung, the Wall Street Journal (sub. req.) reports.

"It's very challenging legally because dressing up in a costume and walking around Times Square is, we believe, a First Amendment-protected activity," she said.

A business group counted the number of costumed characters in Times Square on the evening of April 6 and determined the most popular characters were Elmo, with eight people portraying him, and the Statue of Liberty, with six costumed characters. Tied at five characters apiece were Mario from Nintendo, Dora the Explorer, Spider-Man and aliens.

Police had ticketed performers who lacked proper tax documents, but that came to an end because of court challenges, according to Police Commissioner Raymond Kelly. The performers can be ticketed, however, if they block traffic, sell merchandise or demand payment, the Associated Press reports.

New York University law professor Amy Adler told the Wall Street Journal that the law can bar harassment or fraud by the performers, but not their speech. Regulations must be content-neutral, she said, and you can’t target a performer because you may disapprove, for example, of Sesame Street.

Companies that own rights to the characters haven’t given permission to the street performers. The Wall Street Journal contacted a representative for Sesame Workshop, which owns the rights to characters such as Elmo and Cookie Monster. The representative said the company is evaluating what it can do to "ensure fulfilling engagement with our characters."

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