C.A. Kills Injunction Against Protesting on Private Property

Monday, June 24, 2019

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C.A. Kills Injunction Against Protesting on Private Property

Opinion Expands on 1979 State Supreme Court Opinion Allowing Petitioning at Malls, Finds Protesting Outside Ticketed Area of Amusement Park Cannot Be Barred Under 2013 State High Court Decision

By a MetNews Staff Writer

The First District Court of Appeal has declared that operators of a Bay Area amusement park may not bar an animal rights activist from protesting on its property outside the area restricted to ticketed patrons, citing California’s constitution free-speech provision.

Thursday’s opinion by Justice Therese M. Stewart of Div. One reverses a judgment by the Solano Superior Court granting an injunction that bars an animal rights activist, Joseph Cuviello, from protesting or picketing “on the privately owned premises of Plaintiff, namely, Six Flags Discovery Kingdom’s driving and walking paths, parking lots, and entrance and admission areas.”

The amusement park, owned and operated by plaintiff/respondent Park Management Corp., is located in the City of Vallejo, which lies between Sacramento and San Francisco.

Stewart’s opinion goes beyond the 1979 pronouncement by the California Supreme Court in Robins v. Pruneyard Shopping Center (affirmed the following year by the U.S. Supreme Court) that petitioning activity in privately owned shopping centers may not be blocked. The state high court, in its majority opinion, noted that the “public is invited to visit for the purpose of patronizing the many businesses” and declared that these malls “to which the public is invited can provide an essential and invaluable forum for exercising those rights” and are public forums.

Stewart acknowledged that “unlike a shopping center” in Pruneyard—or a company town or a railway terminal, dealt with in other cases—“an amusement park is not the functional equivalent of an entire town.”

2013 Opinion

She also took note of the 2013 California Supreme Court decision in Ralphs Grocery Co. v. United Food & Commercial Workers Union Local 8 which held that that the entrance to a store within a privately owned shopping center does not constitute a public forum. The plurality opinion by Chief Justice Tani Cantil-Sakauye set forth:

“[T]o be a public forum under our state Constitution’s liberty-of-speech provision, an area within a shopping center must be designed and furnished in a way that induces shoppers to congregate there for purposes of entertainment, relaxation, or conversation, and not merely to walk to or from a parking area, or to walk from one store to another, or to view a store’s merchandise and advertising displays.”

The chief justice declared:

“Our reasoning in Pruneyard determines the scope of that decision’s application. That reasoning is most apt in regard to shopping centers‘ common areas, which generally have seating and other amenities producing a congenial environment that encourages passing shoppers to stop and linger, to leisurely congregate for purposes of relaxation and conversation. By contrast, areas immediately adjacent to the entrances of individual stores typically lack seating and are not designed to promote relaxation and socializing.”

Stewart recognized that Discovery Kingdom’s “exterior portions are not designed and furnished in a manner that encourages people to linger, other than as necessary to purchase tickets and wait for family or friends.”

Decision Not Definitive

Nonetheless, she found that the issue before the Court of Appeal is a fresh one.

“This is a difficult, close case, in part because the California Supreme Court’s decisions in this area are hard to synthesize,” Stewart maintained.

She wrote that Pruneyard contemplates a weighing of competing interests and Ralph’s Grocery does not preclude such balancing. Stewart proceeded to determine that free-speech rights under Art. I, §2 of the state Constitution predominate over rights of the amusement park, saying:

“Balancing society’s interest in free expression here against Park Management’s interests as a private property owner, we conclude the unticketed, exterior portions of Six Flags Discovery Kingdom are a public forum.

“Park Management’s interest in restricting free expression in those areas is minimal. Those areas are large and freely open to the public. In addition, regardless of its reasons, Park Management has allowed Cuviello and other animal rights activists to peacefully protest there for at least seven years, which suggests a diminished interest in enforcing a private property right to exclude them. And although the exterior portion of the park does not offer the amenities of a busy railway station, a small group of people peacefully handing out leaflets and displaying posters there is not likely to interfere with the property’s use….On the contrary, it is undisputed these protesters caused no disruptions and did not interfere with park attendance.

“By contrast, the public’s interest in engaging in expressive activity in the exterior portions of Six Flags Discovery Kingdom is strong. The venue attracts up to 15,000 people daily, and the protesters’ message is directly connected to the animal attractions featured at the park. In effect the protesters are urging a boycott, which is a traditional form of speech to which our state Constitution affords even greater protection than the First Amendment.”

Zoning of Property

Stewart pointed out that the 138-acre attraction—originally a municipal park, sold in 2007 to private interests for roughly $53.9 million—“is zoned by local law in a manner similar to that of a park, which is a quintessential type of public forum…even if privately owned.” She added:

“To be sure, Six Flags Discovery Kingdom is not a park in the typical, Frederick Law Olmsted sense: there is no indication in the record it contains any open spaces, freely accessible to the public for recreation and relaxation. Yet its designation as such sheds light on its public character.”

The jurist cautioned against an overly broad application of the decision, saying:

“To be clear, we do not hold that the exterior areas of all privately owned amusement parks or similar privately owned venues are public fora for free expression under California law. Each case is of course unique, and each turns on its particular facts. We merely hold on the undisputed facts here that Park Management may not ban expressive activity in the non-ticketed, exterior areas of Six Flags Discovery Kingdom.”

Prescriptive Easement

In a portion of the opinion not certified for publication, the appeals court rejected the contention by Cuviello, who represented himself on appeal, that his demonstrating at Discovery Kingdom from four to six times a year for several years created a prescriptive easement. Stewart pointed out that a prescriptive easement requires a showing of “continuous” use but which, she said, has been interpreted to mean other than a constant use, but only a use as “needed.”

She provided this discussion:

“[W]e are not persuaded that six times a year is sufficient as a matter of law without some explanation for the frequency of the demonstrations. Indeed, given the size of this park and the sheer number of people it attracts, who is to say that 100 times a year would be enough to effectively convey Cuviello’s message? Conversely, what about once a year? Without any evidence illuminating the reasons Cuviello chose to protest there as infrequently as he did in order to advance his message (and not more frequently), we cannot say he satisfied the continuous use requirement as a matter of law. Accordingly, he has failed to demonstrate that he was entitled to a judgment in his favor that he acquired a prescriptive right to protest there on the basis of the undisputed facts presented in the trial court.”

The case is Park Management Corp. v. Cuviello, 2019 S.O.S. 2923.