Legal experts say city's attempt to clamp down on harassment of tourists could violate free-speech rights of performers

This article is more than 6 years old

This article is more than 6 years old

New York City officials are turning up the heat on Elmo, Cookie Monster and Statue of Liberty impersonators – costumed characters who pose for photographs with tourists in Times Square.

The city wants to rein in a summertime surge in bad behaviour among the entertainers, such as the Spider-Man recently accused of punching a police officer. "This has gone too far," the New York mayor, Bill de Blasio, said. "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 requiring licences and background checks could violate free-speech rights.

At issue is whether the characters can be considered street performers protected by the first amendment of the US constitution or are engaged in commercial activity subject to regulation. It comes down to whether they merely hope for tips or demand money. Some tourists have complained about being harassed for payment.

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

Other complaints included a Cookie Monster being accused of shoving a two-year-old and an Elmo being heard berating tourists with antisemitic slurs.

There have also been reports of a brawl between two Statue of Liberty impersonators and a man dressed as Toy Story's Woody groping women.

Last Saturday a man dressed as Spider-Man was arrested and charged with hitting a police officer who tried to intervene during a dispute with a woman who offered him $1 (59p). Authorities say the crime-fighting hero told the woman he only accepted $5, $10 or $20 bills.

Jonathan Turley, a constitutional law professor at George Washington University, said any regulations must be written carefully to avoid arbitrary enforcement. Singling out those who wear costumes could be problematic.

"When politicians call for regulating someone in a costume, it's clearly inane," he said. "You have people on Wall Street who violate the law, and we don't subject people in Armani suits to special regulations."

City councillor Dan Garodnick, a Manhattan Democrat who is drafting legislation, said the details were still being worked out. "We're trying to balance first amendment rights of individuals with the need to protect people from what has become garden-variety harassment."

In Los Angeles, costumed characters have brawled outside the TCL Chinese Theatre on Hollywood Boulevard, vying for sidewalk turf while expecting as much as $20 in tips from visitors.

New York's regulation push is backed by the nonprofit Times Square Alliance, which recently counted no fewer than 76 costumed characters in the square. Another local group, the Broadway League, blames the aggressive characters for a downturn in business.

On a sunny afternoon this week Times Square was filled with about two dozen characters, including multiple furry Elmos, a Minnie Mouse, a Hello Kitty and more than one copper-green-skinned Statue of Liberty. At least two characters – a Minion from Despicable Me and one of the Elmos – said they had purchased their costumes, made in Peru, for about $300.

Speaking in Spanish through their masks, several admitted they were living in the US illegally and said they relied on working in Times Square to feed their families.

City officials acknowledged that some of the performers were in the country without legal permission but said they did not know how many.