Andreas Dantz/Flickr

Officials hope to tiptoe around First Amendment rights to regulate costumed characters in places like Times Square or Hollywood Boulevard. Elmo and Spidey's best bet? Get organized.

All the world's a stage, Shakespeare famously wrote, and one man in his time plays many parts: Bane and the Penguin, for example.

Yamil Morales Montoya does, anyways. Montoya has performed the dual roles in Times Square for the last year and a half, a calling he discovered after nearly a decade cleaning office buildings at night. Originally from Colombia, Montoya is undocumented, and found himself limited in his job options when he first arrived in New York City. Cleaning was OK, but the work was low-paying, and lonely besides. "I felt really sad," he tells me through a translator by phone. "I really wanted something that would give me more emotional fulfillment."

That's when he saw Times Square, and the costumed characters who populate it, offering photo ops in exchange for tips. Captivated, Batman-loving Montoya saved up for months for the perfect Bane costume—camouflage pants, leather wrist cuffs, the signature face mask—and at last made a Sunday afternoon debut. He was quickly hooked on the job's emotional drama, and the joy of making smiles. "I'm like a psychologist: I take people in a bad mood, and put them in good mood," he says. "There is no force of nature—money or sickness—that would take me away from this job."

New York City officials might like to, though. Since the 2008 opening of the Times Square pedestrian plaza at Broadway and 42nd Street, more and more costumed characters have flocked to the tourist destination dressed as film and cartoon icons. Many of the performers consider it an art form, as Montoya does, but reports of "unseemly" behavior among some of the characters have soured many outside perceptions. A Spider-Man punched a cop in July, and sex abuse charges were filed against a Toy Story Woody for allegedly touching young girls. In 2012, an Elmo went on an anti-Semitic tirade; in 2013, a Cookie Monster allegedly pushed a toddler after his mother failed to tip sufficiently.

City legislators and local businesses are calling for intervention. In September, City Council member Andy King introduced a first-of-its-kind bill that would regulate the characters in the form of an $175 annual licensing fee, identification badges to be visibly worn at all times, and a background check.

"You have the right to go out there and dress up," King tells me by phone. "But you should be humble, kind, and courteous, bring smiles to people, not to leave a horrible memory of the experience. I'm trying to bring some rules of engagement, that are fair, inclusive, and protect everyone."

It's not clear that licensing would actually weed out bad actors—or if the proposed regulations manage to toe a fine line on First Amendment rights. Though King says he has half of the council signed onto his bill, councilmember Dan Garodnick, whose district includes Times Square, isn't on-board just yet. Any licensing scheme would be extremely difficult to confine to a certain group of street performers, he says. But something does need to be done. "If there were a limit to the number or the places where [performers] could be, I could imagine them being a positive addition to Times Square," he says. "Unfortunately, they have grown to a number where any bad acts feel simply uncontrollable today."

Garodnick is considering drafting a bill of his own, which could focus instead on defining the physical spaces where characters may perform. Another possible plan is self-regulation, he says: the characters set rules themselves and voluntarily undergo background checks.

That's a more amenable approach for the performers and their supporters. "We don’t feel that city of New York has legal parameters to distinguish between different kinds of performers," says Lucia Gomez, executive director at La Fuente, an advocacy center for new immigrants to the city. She adds, "[The city] wants an environment that is 'safe,' but this is New York. Licensing is not going to get safety. They’re trying to regulate something that’s unregulatable."

Some performers are already working to make themselves more accountable. In early August, following a series of sour run-ins with NYPD, a group of characters inaugurated the first meeting of Artists United for a Smile. Every week since, they've met at La Fuente's offices to discuss and respond to King's proposed legislation—about which both Gomez and Montoya say the performers weren't consulted (King says he did consult with performers). They've begun a discussion with the NYPD on what constitutes "aggressive panhandling." Most importantly, Artists United for a Smile are devising their own self-regulatory system, which would include internally generated identification and their own rulebook on decorum.

Montoya is active in the group. He's hopeful that they'll strengthen the performers' relationship with the city, making it clear that the bad actors needn't spoil the stage for everyone, and thereby avoid regulation. "There are already laws on the books that address the concerns of the city," he says, referring to the fact that aggressive panhandling and street harassment are already illegal, and enforceable by the NYPD. "I'm hoping we'll be recognized as a governing group for the performers, and work with the city to address concerns." Garodnick also seemed to think self-regulation could work.

And Montoya stresses that his objection to regulation isn't about the background check, even though he's undocumented. It's an issue of free speech. "They don’t have the right to limit our artistic freedom," he says, adding that many of his fellow performers (whom he estimates are roughly 95 percent undocumented—Gomez thinks the number is closer to 50 percent) feel the same way.

Los Angeles city officials are watching as well. Aspiring film and TV actors have flocked to Hollywood Boulevard dressed as superheroes and celebrities since at least the 1980s, much longer than the performers in Times Square. There, too, the city has seen a handful of harassment cases over the years, and notably, a recent brawl between two superheroes caught on film: Batgirl and Mr. Incredible duked out what might have been a territory dispute, while Chewbacca and Freddy Krueger attempted intervention. I'm told City Council member Mitch O'Farrell is considering proposing his own new set of regulations, possibly in the form of a bill.

But unlike New York City, which is just facing this issue in earnest for the first time, this issue is old hat for Hollywood. "There have been many efforts to regulate over the years," says Leron Gubler, President and CEO of the Hollywood Chamber of Commerce, which represents businesses that he says get regular complaints about harassment from the performers. "There was a crackdown on the characters awhile back, for at least six months. There were no characters on the strip, it was really nice."

The slew of 2010 character arrests he's referring to ended in a lawsuits by a number of characters against the city. The characters won, and a court ordered an injunction against future arrests for solicitation and loitering in the area. To the west, Santa Monica has a successful program that licenses street performers, but it may just not be possible to replicate it across all of Los Angeles, where regulating one group of street performers would almost necessitate regulating all—a certain infringement of free speech rights.

Gubler says that there have "been conversations" with some of the performers, and that he's heard there are some who have been organizing to discuss how they can self-enforce good behavior. "A lot of these people are trying to do it right," he says. He's been in meetings with O'Farrell this week discussing possible solutions, but it's just not clear yet what kind of plan could avoid another journey through the courts, or be viably enforced. "We're interested in looking at what's happening in New York," he says. "Maybe they've got the silver bullet."

If they do, it's probably Artists United for a Smile—the only positive, and irrefutably legal, change that seems to have come out of the latest round of debate around costumed character regulations. Performers are already on the scene when wrong-doings break out, unlike police, and with a self-regulatory body, could theoretically be trusted to identify bad actors to authorities.

Most importantly, when a fight breaks out between Batgirl and Mr. Incredible, it could be safely staged. Two superheroes brawling on the streets of L.A? What a photo-op that would be.

Special thanks to independent media lawyer Susan Basko for her legal insight.

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