Fenced Area on State Fair Grounds Is Not a Public Forum
Court Says Exterior Portion Is Public Forum but Limiting Leafleting to ‘Free Speech Zones’ Is Reasonable
By a MetNews Staff Writer
A fenced area on the State Fair grounds in Sacramento, to which entry is granted only to those who have purchased tickets, is not a public forum, the Ninth U.S. Circuit Court of Appeals held yesterday, rejecting the contention of an evangelist that his free-speech rights were breached when he was ejected from a private event after attempting to distribute coins with scripture imprinted on them.
The entire area outside the fenced portion is a public forum, the court found, invoking Art. I, §2 of the California Constitution, but added that it was reasonable to restrict distribution of literature to established “free speech zones.”
The opinion by Ninth Circuit Judge Gabriel P. Sanchez affirms a summary judgment by District Court Judge Morrison C. England Jr. of the Eastern District of California in favor of the California Exposition and State Fair (“Cal Expo”) and its general manager, Rick Pickering. Joining in Sanchez’s opinion was District Court Judge Robert S. Lasnik, of the Western District of Washington, sitting by designation; Ninth Circuit Judge Lawrence VanDyke penned a partial dissent.
Appealing the summary judgment was Burt Camenzind who, in November 2018, was ousted from a Hmong New Year Festival in the fenced area, then excluded from the entirety of the fairgrounds.
Camenzind had been told by a security officer before entering the event that he could distribute materials in a designated free-speech zone outside the fenced area but not within it. He purchased a ticket, went in, and proceeded to give out Christian literature (tracts) and the coins.
“[W]e hold that the exterior, unticketed portion of Cal Expo is a public forum under the California Speech Clause and the interior, ticketed portion of the fairgrounds is a nonpublic forum,” Sanchez wrote. “We further hold that Cal Expo’s Free Speech Zones were a valid regulation of Camenzind’s speech in the exterior fairgrounds area and Cal Expo’s prohibition on distributing literature in the enclosed area was likewise permissible.”
Sanchez pointed out that when the annual state fair is not being conducted, the premises are not accessible, except when a party leases them. The Sacramento Hmong New Year Organization had paid about $10,000 per day to hold its four-day event there, he noted.
“The property is thus in no sense ‘continually open’ to the public as, for example, a park or public square,” the jurist wrote.
Whether free-speech rights require access to the fairgrounds outside the fenced area “presents a closer question,” he said. The “Free Expression Zones,” in particular, “which take up several hundred feet outside the entry gates,” Sanchez declared, “undoubtedly constitute public fora.”
Analysis as to whether the First Amendment renders the entire unfenced portion a public forum is unnecessary, he noted, because “the California Speech Clause provides ‘independent support’ for Camenzind’s argument that it is indeed such a forum…, albeit subject to reasonable restrictions on speech.”
Art. I, §2 provides:
“Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.”
“In some settings, the California Speech Clause treats privately controlled properties as public fora. For example, although privately owned shopping centers are not public fora for purposes of the First Amendment, the California Supreme Court has recognized them as such under the California Speech Clause.”
He pointed to the 2019 Court of Appeal decision by the First District’s Div. Two in Park Management Corp. v. In Defense of Animals. In that case, an animal rights activist appealed from an injunction barring him from demonstrating outside Six Flags Discovery Kingdom in Vallejo. Then-Justice (now Presiding Justice) Therese M. Stewart wrote:
“[W]e hold as a matter of first impression that the exterior, unticketed areas of the amusement park are a public forum for expressive activity under article I, section 2 of the California Constitution, and accordingly we reverse the judgment.”
“Park Management teaches that the exterior, unticketed portions of the Cal Expo constitute a public forum under the California Speech Clause.”
He went on to say that although the exterior portion of the grounds is a public forum, “the Free Speech Zones were a valid regulation of Camenzind’s speech in the exterior fairgrounds area.”
“From the Free Speech Zones, Camenzind would have been able to distribute his coins while not blocking the narrow walkways and causing attendees to stray into adjoining parking lots with automobile traffic.” Sanchez noted.
VanDyke took this stance:
“Because we do not have enough information to properly evaluate whether Cal Expo is a public forum during the Hmong New Year Festival under the California Speech Clause, I would remand for further factual development.”
He agreed with the discussion as to exercising free-speech rights outside the fenced area.
The case is Camenzind v. California Exposition & State Fair, 22-15931.
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