1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BURT CAMENZIND, an individual, No. 2:19-cv-00632-MCE-AC 12 Plaintiff, 13 v. MEMORANDUM AND ORDER 14 CALIFORNIA EXPOSITION AND STATE FAIR, RICK PICKERING, in his 15 official capacity as General Manager of California Exposition and State Fair; 16 DOES 1-10, inclusive, 17 Defendants. 18 19 Through the present action, Plaintiff Burt Camenzind (“Plaintiff”) asserts claims 20 against Defendants California Exposition and State Fair (“Cal Expo”) and Rick Pickering 21 (“Pickering”), in his official capacity as General Manager of Cal Expo, (collectively, 22 “Defendants”) arising out of Defendants’ purported violation of his rights to free speech. 23 According to Plaintiff, Cal Expo’s “Free Speech Activities Guidelines” in conjunction with 24 its “Code of Conduct” (collectively referred to as “the Guidelines”) violate his rights under 25 the United States and California Constitutions both facially and as applied to him. 26 Plaintiff claims these policies prevented him from distributing religious literature and 27 coins (hereafter “leafleting”) during the Hmong New Year Festival. Presently before the 28 /// 1 Court are the parties’ Cross-Motions for Summary Judgment. ECF Nos. 9, 11.1 For the 2 following reasons, both Motions are GRANTED in part and DENIED in part. 3 4 BACKGROUND2 5 6 A. Cal Expo’s Rules 7 Cal Expo is a large state-owned property in Sacramento County encompassing 8 approximately 800 acres, roughly 400 of which are fenced in and accessible through 9 gates. The fenced in portion, where California holds its annual State Fair, is an area 10 rented out for hundreds of smaller events each year as well. Outside Cal Expo’s gates 11 are parking lots intertwined with various sidewalks which allow foot traffic to reach the 12 entrance. 13 Cal Expo purports to provide “reasonable access to its grounds . . . for 14 demonstrations for free speech activity.”3 ECF No. 12-1 at 101. It thus established the 15 Guidelines to regulate such expressive activities on that property. Outside of park gates, 16 Cal Expo established “designated free expression zones,” which it defines as follows: 17 A free expression zone is a designated area located on-site as established by Cal Expo’s chief executive officer (general 18 manager), deputy general manager, or any individual designated in writing by Cal Expo’s chief executive officer, at 19 which members of the public may be provided reasonable access in accordance with these guidelines for purposes of 20 conducting free speech activities. 21 /// 22 1 Because oral argument would not have been of material assistance, the Court ordered this 23 matter submitted on the briefs. E.D. Cal. Local Rule 230(g).
24 2 The material facts are undisputed. They are taken, primarily verbatim, from the parties’ papers. 25 3 The Guidelines explain that “‘free speech activities’ mean individual or group display of signs other than specifically allowed . . . ; picketing, leafleting, collection of signatures or marching and any 26 group activity involving the communication or expression, either orally or by conduct of views and/or grievances, and which has the effect and intent or propensity to express that view or grievance to others.” 27 ECF No. 12-1 at 102. “As used in [the] guidelines, neither the definition of or limitations on ‘free speech activities’ includes one-on-one voluntary discussions or individual wearing of buttons or symbolic 28 clothing.” Id. 1 ECF No. 12-1 at 102.4 2 The Guidelines explain why this approach was taken: 3 It is the policy of Cal Expo . . . to allow free speech activity wherever said activity is not inconsistent with the normal 4 operations or activities of Cal Expo. Cal Expo finds, however that due to the unique nature of the grounds of Cal Expo, there 5 is limited access necessitating creation of free expression zones. Cal Expo specifically finds that the buildings and 6 grounds comprising Cal Expo’s grounds are generally surrounded by parking areas under the control of Cal Expo, 7 but which areas become congested with numerous vehicles during events. Cal Expo further finds that pedestrian traffic is 8 generally confined to narrow walkways to and from these parking areas to the various gates of the fairgrounds and that 9 the designated free expression zones are designed to balance the interests of those engaged in free speech activity and 10 being given reasonable access to the patrons of events of Cal Expo, and the safety of the patrons and prevention of 11 accidents or congestion which could lead to injury.” 12 Further, Cal Expo finds that these guidelines in the providing of free expression zones are balanced to protect the interests 13 of patrons attending events upon Cal Expo’s fairgrounds from inappropriate activity or conduct by those engaged in free 14 speech activity, with the interest of those engaged in such free speech activities. Cal Expo’s solution to this balancing of 15 interests is designation of free expression zones and restrictions on time, place and manner of said expressions to 16 ensure reasonable access by those engaged in free expression activity to those attending the fairgrounds, while 17 protecting the overall safety of the public. In addition, Cal Expo finds that for the annual State Fair, for-rent booths are 18 available for rent to anyone on a first-come, first-serve basis in addition to free expression zones. 19 20 ECF No. 12-1 at 102-03. Cal Expo elaborated as to how it would designate such zones: 21 These [free expression] zones shall be selected by Cal Expo. The area selected by Cal Expo shall be selected to provide 22 maximum reasonable access by those involved in First Amendment activities to patrons of Cal Expo, commensurate 23 with public safety as well as the safety of those individuals engaged in such activity, and shall interfere to the minimal 24 extent possible with the free flow and passage of patrons to and from the parking areas and Cal Expo’s fairground. 25 /// 26 4 Because “free speech activities” do not include one-on-one voluntary discussions, such 27 interactions need not be confined to free expression zones and may occur anywhere throughout the Cal Expo property. It is only when, as is relevant here, an individual wishes to hand out leaflets or 28 pamphlets, that his or her activity must occur within one of these zones. 1 ECF No. 12-1 at 103. Each of these free expression zones comprise 36 square feet. 2 See ECF No. 12-1 at 104 (“[A]n exclusive area within the zone, six feet by six feet, will 3 be assigned for use by an individual or a group.”). 4 Of course, “leaflets, pamphlets or other materials are to be distributed from the 5 confines of the free expression zone space and not placed on cars, left unattended at 6 gates or other locations on the property.” In addition, as indicated above, aside from the 7 free expression zones, leafleters may also, depending on the circumstances, rent a 8 booth inside the gates if they want to engage in free speech activities therein. ECF 9 No. 12-1 at 103, 105. 10 Finally, under some circumstances, pre-registration is required: 11 Organizations or affiliated groups of persons desiring to engage in free speech activity on-site in large groups should 12 register with Cal Expo prior to the event. For purposes of these guidelines, it shall be presumed that a group of more than 25 13 protestors shall be a large group requiring a registration. Registration is not mandatory for affiliated persons not meeting 14 the definition of a large group. However, early registration may allow the applicant to select the desired free expression zone 15 which are allotted on a “first come, first serve basis.” The purpose of registration is not to censor in any way or review 16 discretionarily the content of the speech involved, but to allow sufficient opportunity for Cal Expo to assign space for free 17 speech expression zones. Registration will be granted on a first-come, first serve basis. A request for registration may be 18 made 48 hours prior to the planned event, but not more than 30 days prior to planned event at the offices of Cal Expo. 19 20 ECF No. 12-1 at 103. “Nothwithstanding the 48 hour registration requirement for large 21 groups, such a registration will not be required for persons or groups engaging in 22 spontaneous expression.” ECF No. 12-1 at 106. “Spontaneous expression” in turn 23 means “expressive activity in response to events coming into the public knowledge 24 within the past forty-eight hours.” Id. 25 Violation of the Guidelines is grounds for ejection from the property and possible 26 arrest. ECF No. 12-1 at 52, 107. 27 /// 28 /// 1 B. The Events Underlying This Case 2 On November 24, 2018, Plaintiff went to Cal Expo to attend the Fourteenth 3 Annual Hmong New Year Festival. Plaintiff’s goal in attending the festival was to spread 4 the message of Evangelical Christianity. To facilitate conversations with festival 5 attendees, Plaintiff brought with him leaflets and approximately 1,000 custom coins 6 printed with religious information to hand out free of charge. 7 At the entry gate, Plaintiff spoke with Cal Expo Police Sergeant Caryn King, who 8 informed him that handing out leaflets and/or coins inside of the event without 9 permission would violate the Cal Expo Code of Conduct.5 Plaintiff nonetheless entered 10 the festival and proceeded to hand out coins to attendees. He estimates he handed out 11 approximately 50 religious coins in one hour before an officer saw him doing so and 12 ejected him from the property. 13 In January 2019, Plaintiff’s counsel submitted a claim to California’s Department 14 of General Services. That claim was rejected, after which Plaintiff initiated this action in 15 Sacramento County Superior Court. Defendants subsequently removed the case to this 16 Court, and it is ripe for adjudication. 17 18 STANDARD 19 20 The Federal Rules of Civil Procedure provide for summary judgment when “the 21 movant shows that there is no genuine dispute as to any material fact and the movant is 22 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. 23 Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to 24 dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325. 25 ///
26 5 Sergeant King also advised Plaintiff that he could fill out an application to engage in free speech activities, ostensibly to choose to use a free expression zone, but Plaintiff declined. According to 27 Defendants, it is preferred that individuals fill out an application to utilize a free expression zone for logistical purposes, but such applications are not required. In any event, Sergeant King testified that she 28 could not recall ever turning an applicant away. 1 Rule 56 also allows a court to grant summary judgment on part of a claim or 2 defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) (“A party may 3 move for summary judgment, identifying each claim or defense—or the part of each 4 claim or defense—on which summary judgment is sought.”); see also Allstate Ins. Co. v. 5 Madan, 889 F. Supp. 374, 378-79 (C.D. Cal. 1995). The standard that applies to a 6 motion for partial summary judgment is the same as that which applies to a motion for 7 summary judgment. See Fed. R. Civ. P. 56(a); State of Cal. ex rel. Cal. Dep’t of Toxic 8 Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying summary 9 judgment standard to motion for summary adjudication). 10 In a summary judgment motion, the moving party always bears the initial 11 responsibility of informing the court of the basis for the motion and identifying the 12 portions in the record “which it believes demonstrate the absence of a genuine issue of 13 material fact.” Celotex, 477 U.S. at 323. If the moving party meets its initial 14 responsibility, the burden then shifts to the opposing party to establish that a genuine 15 issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. Ltd. v. 16 Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); First Nat’l Bank v. Cities Serv. Co., 17 391 U.S. 253, 288-89 (1968). 18 In attempting to establish the existence or non-existence of a genuine factual 19 dispute, the party must support its assertion by “citing to particular parts of materials in 20 the record, including depositions, documents, electronically stored information, 21 affidavits[,] or declarations . . . or other materials; or showing that the materials cited do 22 not establish the absence or presence of a genuine dispute, or that an adverse party 23 cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The 24 opposing party must demonstrate that the fact in contention is material, i.e., a fact that 25 might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, 26 Inc., 477 U.S. 242, 248, 251-52 (1986); Owens v. Local No. 169, Assoc. of W. Pulp and 27 Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992). The opposing party must also 28 demonstrate that the dispute about a material fact “is ‘genuine,’ that is, if the evidence is 1 such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 2 477 U.S. at 248. In other words, the judge needs to answer the preliminary question 3 before the evidence is left to the jury of “not whether there is literally no evidence, but 4 whether there is any upon which a jury could properly proceed to find a verdict for the 5 party producing it, upon whom the onus of proof is imposed.” Anderson, 477 U.S. at 251 6 (quoting Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)) (emphasis in original). 7 As the Supreme Court explained, “[w]hen the moving party has carried its burden under 8 Rule [56(a)], its opponent must do more than simply show that there is some 9 metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. Therefore, 10 “[w]here the record taken as a whole could not lead a rational trier of fact to find for the 11 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587. 12 In resolving a summary judgment motion, the evidence of the opposing party is to 13 be believed, and all reasonable inferences that may be drawn from the facts placed 14 before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 15 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 16 obligation to produce a factual predicate from which the inference may be drawn. 17 Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 18 810 F.2d 898 (9th Cir. 1987). 19 20 ANALYSIS 21 22 Plaintiff contends that Cal Expo’s restrictions on leafleting are unconstitutional 23 both facially and as applied to him. More specifically, Plaintiff takes the position that 24 Cal Expo is a public forum and that the prohibition on leafleting inside of the gates, the 25 application requirement to leaflet outside of the gates, and the relegation of such 26 leafleting to free expression zones outside of the gates are not narrowly tailored to 27 achieve a significant government interest. Additionally, according to Plaintiff, Cal Expo’s 28 /// 1 policies in this regard fail to leave open ample channels of communication.6 Defendants 2 disagree, arguing that Cal Expo is a nonpublic forum and the rules are thus sufficiently 3 reasonable. Defendants further maintain that their free speech restrictions nonetheless 4 survive under any standard of review. The Court is not convinced that the parties’ 5 treatment of the property as a whole is the correct approach. It thus concludes that, for 6 the reasons set forth below, Cal Expo is comprised of both public and nonpublic fora and 7 that its respective rules are constitutionally sound given those designations. 8 A. Rules Governing Fora Analysis 9 In assessing a freedom of expression claim, this Court first “must identify the 10 nature of the forum, because the extent to which the Government may limit access 11 depends on whether the forum is public or nonpublic.” Hopper v. City of Pasco, 12 241 F.3d 1067, 1074 (9th Cir. 2001) (quoting Cornelius v. NAACP Legal Defense & 13 Educ. Fund, 473 U.S. 788, 797 (1985)). Indeed, “the Government, ‘no less than a 14 private owner of property, has power to preserve the property under its control for the 15 use to which it is lawfully dedicated.’” Cornelius, 473 U.S. at 800 (quoting Greer v. 16 Spock, 424 U.S. 828, 836 (1976)). 17 The Supreme Court therefore “adopted a forum analysis as a means of 18 determining when the Government’s interest in limiting the use of its property to its 19 intended purpose outweighs the interest of those wishing to use the property for other 20 purposes.” Id. “[T]he two main categories of fora are public (where strict scrutiny 21 applies) and non-public (where a more lenient ‘reasonableness’ standard governs).” 22 Hopper, 241 F.3d at 1074. 23 Under the United States Constitution, a “traditional public forum” is an area that 24 “by long tradition or by government fiat [has] been devoted to assembly and debate.”
25 6 Defendants concede, as they must, that the Guidelines only require registration by large groups and not by individuals. On the face of the Guidelines, then, the registration requirement is not 26 constitutionally flawed. The record is undisputed, however, that Plaintiff was repeatedly advised, as an individual, that he must fill out an application to utilize a free speech zone. Accordingly, Plaintiff’s as- 27 applied challenge to the registration requirement is well taken. See Watchtower Bible & Tract Soc’y of NY, Inc. v. Vill. of Stratton, 536 U.S. 150 (2002). Plaintiff’s Motion is thus GRANTED, and Defendants’ Motion 28 is DENIED on this point. 1 Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). This 2 includes places such as public streets, parks and sidewalks. To determine whether a 3 particular site constitutes a public forum for purposes of the federal Constitution, courts 4 evaluate “(1) ‘the actual use and purposes of the property, particularly status as a public 5 thoroughfare and availability of free public access to the area,’ (2) ‘the area’s physical 6 characteristics, including its location and the existence of clear boundaries delimiting the 7 area,’ and (3) ‘traditional or historic use of both the property in question and other similar 8 properties.’” Wright v. Incline Vill. Gen. Improvement Dist., 665 F.3d 1128, 1135 (9th Cir. 9 2011) (quoting ACLU of Nev. v. City of Las Vegas, 333 F.3d 1092, 1100-01 (9th Cir. 10 2003)). 11 The California Constitution’s standard for determining whether a particular area is 12 a “public forum” is “[a] protective provision more definitive and inclusive than the First 13 Amendment.” Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d 899, 908, 910 (1979). 14 Under the Liberty Speech Clause of the California Constitution, the “public forum” 15 doctrine is not limited to traditional public forums such as streets, sidewalks, and parks 16 or to sites dedicated to communicative activity such as municipal theaters. Rather, the 17 test under California law is “whether the communicative activity is basically incompatible 18 with the normal activity of a particular place at a particular time.” Carreras v. City of 19 Anaheim, 768 F.2d 1039, 1045 (9th Cir.1985), abrogated on other grounds by 20 Los Angeles Alliance for Survival v. City of Los Angeles, 22 Cal. 4th 352 (2000). 21 The parties disagree as to how Cal Expo should be categorized, addressing their 22 arguments to the property as a whole, with Plaintiff arguing that the entire property is a 23 public forum while Defendants advocating to the contrary. However, for instant purposes 24 Cal Expo is really delineated into two separate areas: (1) that area inside of the ticket 25 gates where events are held by private parties; and (2) that area outside of those gates 26 where people park, traverse the sidewalks to enter the venue, and can congregate 27 without entering the event itself. The Court addresses each separately. 28 /// 1 B. Inside the Gates 2 1. Nonpublic Forum 3 The Court concludes that the area inside the Cal Expo gates (i.e., the area utilized 4 for the Hmong New Year Festival) is a nonpublic forum.7 Cal Expo has not historically 5 been used as a venue for diverse and open speech. It is not a park, street or 6 thoroughfare traditionally open to the public. Instead, it is operated as an event venue, 7 primarily for private organizations to rent the premises to host their own exclusive 8 events. Otherwise, Cal Expo is closed most days. Indeed, it is undisputed that the 9 Hmong New Year Festival was sponsored by a private organization paying a substantial 10 amount money (i.e., $40,000) for exclusive use of the facilities. 11 Moreover, the gated portion of the property is surrounded by fencing and is only 12 accessible during specific hours by ticketed members of the public who are required to 13 go through security. Public pathways and streets do not pass through the fenced space, 14 and it is not open generally to the public to congregate. For all of these reasons, the 15 gated portion of Cal Expo, where no free expression zones have been established, fails 16 to qualify as a public forum under both the state and federal tests. 17 Plaintiffs have cited no on-point authority to the contrary. In fact, the parties have 18 not identified, nor has the Court found, any analogous case standing for the proposition 19 that the portion of a public entertainment venue being rented by a private party for an 20 exclusive event-specific purpose should be treated as a public forum such that leafleting 21 would be permitted inside. Quite the contrary. In each of the cases raised before the 22 Court here, the free speech challenges were brought with respect to the areas 23 surrounding the venues (e.g., the adjacent parking lots and sidewalks) as opposed to the 24 interior portions of the properties where a private event was being held. See, e.g., 25 Carreras, 768 F.2d 1039 (evaluating constitutionality of prohibiting solicitation in the 26 7 The Court does not consider the parties’ suggestion that this area of Cal Expo is a public fora 27 during the operation of the California State Fair. While that position makes sense given that the State is in that case explicitly hosting an event open to its public, Plaintiff has not established standing with respect to 28 the Fair. 1 parking areas and pedestrian walkways surrounding the city-owned Anaheim Stadium 2 and the exterior walkways of the city-owned Anaheim Convention Center as opposed to 3 inside the stadium or convention center); Kuba v. 1-A Agr. Ass’n, 387 F.3d 850 (2004) 4 (holding that the walkways and parking lots surrounding the State of California-owned 5 Cow Palace were a public forum); Park Mgmt. Corp. v. In Defense of Animals, 6 36 Cal. App. 5th 649, 653, 665 (2019) (concluding that the “exterior, unticketed areas of 7 [a privately owned] amusement park are a public forum” under the California Constitution 8 and noting that “there are no other areas within the amusement park available for free 9 expression, because the interior area is by ticketed admission only”.)”8 In none of those 10 cases did any plaintiffs contend—let alone did the courts hold—that individuals should 11 be permitted to purchase a ticket to the particular event as a passport of sorts to protest 12 freely or distribute materials inside. 13 Moreover, the most analogous out-of-circuit authority this Court has found 14 supports the conclusion that the interior portion of Cal Expo is non-public. In Int’l Soc. 15 for Krishna Consciousness, Inc. v. New Jersey Sports and Exposition Authority, 691 16 F.2d 155, 161 (3d Cir. 1982), the court held that a state-owned racetrack and stadium 17 was a nonpublic forum. As here, patrons were permitted inside of the facility to engage 18 in “pure or symbolic speech” and were “free to speak with anyone they choose and upon 19 any topic, . . . to wave pennants or [to] wear clothes that demonstrate a point of view.” 20 Id. at 159. Distributing literature or soliciting contributions was, however, prohibited. Id. 21 at 158. That court reasoned that the racetrack and stadium were distinguishable from a 22 park and did not resemble other sites historically created for the exchange of ideas. 23 Given its commercial purpose and the fact that the facilities were dedicated to 24 /// 25 /// 26 ///
27 8 The Court finds Heffron v. Int’l Soc. For Krishna Consciousness, Inc., 452 U.S. 640 (1981), inapposite to the instant analysis because that case involved a state fair, which is materially different from 28 the facts of this case. 1 recreational use, the court concluded the venue was a nonpublic forum. Id. at 161 and 2 n.3. For the reasons already articulated, this Court agrees.9 3 2. Restrictions on Leafleting are Reasonable 4 In this nonpublic forum, the government may still “not exclude speech where its 5 distinction is not reasonable in light of the purpose served by the forum . . . . “ 6 Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 829 7 (1995) (quotation and citation omitted). Excluding speech inside of the gates is 8 reasonable here. 9 The purpose of the venue was a celebration of the Hmong New Year put on by a 10 private group to facilitate interaction between festival merchants, who paid to rent 11 booths, and festival attendees. This was not an event sponsored by the state to freely 12 promote public discourse or a rally or protest on a street corner or in a public park. This 13 was a private event open only to ticket holders at the cost of thousands of dollars to the 14 promoters. Against that backdrop, Plaintiff has not pointed the Court to any authority 15 supporting the conclusion that an individual’s First Amendment rights guarantee him or 16 her the opportunity to distribute leaflets or other materials during such a private event 17 simply because the event organizers rented a public as opposed to a private property for 18 their venue. Quite the contrary, as discussed above, it appears that private events, 19 whether it be a circus or an amusement park, remain private beyond the gates, even if 20 those events take place on public property. See Carreras, 768 F.2d 1039; Kuba, 21 387 F.3d 850; Park Mgmt. Corp., 36 Cal. App. 5th 649; Soc. for Krishna Consciousness, 22
23 9 This conclusion can also easily be reconciled with those cases evaluating the effect the privatization of public places might have on First Amendment protections. See ACLU, 333 F.3d 1092; 24 First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F.3d 1114 (10th Cir. 2002). Those cases are inapposite because they involved properties such as parks, sidewalks, streets, and 25 thoroughfares that had historically been treated as public fora, which is not the case here. Nor is this case similar to those instances where permit holders for events held in public parks were prohibited from excluding other speakers from the forum. See Gathright City of Portland, Or., 439 F.3d 573 (9th Cir. 26 2006). An exclusive event held in a privately leased venue is distinguishable from an open event held in a public park, which is the epitome of a public forum. Anyone can come and go during an event held at an 27 open park, and the park itself remains open during the duration of the event. The same is not true for an exclusive event limited to ticketed participants. Accordingly, this is a distinction with a dispositive 28 difference. 1 691 F.2d 155.10 Accordingly, the Court finds that Cal Expo’s limitation on leafleting 2 inside the gates during privately funded and hosted events is constitutional.11 3 C. Outside the Gates 4 1. Public Forum 5 In applying the above framework to the area outside of the gates, this Court 6 concludes that the area is a public forum subject to reasonable time, place, and manner 7 restrictions. The area outside of the gates is comprised of sidewalks and parking lots 8 open to the public. It is simply not plausible to conclude that this area of the property is 9 a nonpublic forum, especially given the inclusion of designated free expression zones. 10 See Carreras, 768 F.2d 1039; Kuba, 387 F.3d 850; Park Mgmt. Corp., 36 Cal. App. 5th 11 649; Soc. for Krishna Consciousness, 691 F.2d 155.12 12 2. Restrictions on Leafleting are Reasonable Time, Place, and Manner Restrictions 13 14 In public fora, restrictions on the time, place, or manner of speech are reasonable 15 provided they are “‘justified without reference to the content of the regulated speech, that 16 they are narrowly tailored to serve a significant governmental interest, and that they 17 leave open ample alternative channels for communication of the information.’” Ward v. 18 Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for Creative 19 Non–Violence, 468 U.S. 288, 293 (1984)). Accordingly, both federal law and California 20 law hold that permissible restrictions on expression in a public forum must be 21
22 10 That said, it bears repeating that this decision is limited to leafleting inside of a private event. Nothing in the Guidelines or Rules precludes any individual from engaging in one-on-one conversations 23 within an event he or she has lawfully entered according to the hosting party’s requirements (i.e., tickets, searches, etc.). 24 11 Given the lack of directly on-point, binding authority, it is worth noting that this conclusion is also 25 compelled by common sense. One would not expect a private party paying to host its own exclusive event would do so if it was advised that its exclusivity was illusory since ticket holders would be permitted to engage in unfettered leafleting within the venue on the host’s dime. 26
12 At the very least, the free expression zones themselves would qualify as “designated public 27 fora.” See Hopper, 241 F.3d at 1074. Because the Court concludes that the remainder of the property outside of the gates is a public forum, however, it need not evaluate how this designation might change 28 the analysis. 1 (1) content-neutral, (2) narrowly tailored to achieve an important government interest, 2 and (3) leave open ample alternative communication channels. Galvin v. Hay, 374 F.3d 3 739, 746 (9th Cir. 2004). Although Plaintiff alludes to problems with the Guidelines as it 4 pertains to content, he concedes for purposes of this Motion that the Court may presume 5 the Guidelines are content-neutral. Accordingly, the Court need only analyze the 6 remaining prongs of the above test. 7 a. Significant Governmental Interest 8 “A valid time, place, and manner regulation must ‘serve a significant government 9 purpose.’” Heffron, 452 U.S. at 649 (quoting Virginia Pharmacy Board v. Virginia Citizen 10 Consumer Council, 425 U.S. 748, 771 (1941)). Here, the Guidelines evidence 11 Defendants’ significant interest in public safety. Specifically, the relevant portion of the 12 Guidelines provides: “the buildings and grounds comprising Cal Expo’s grounds are 13 generally surrounded by parking areas . . . which areas become congested with 14 numerous vehicles during events . . . pedestrian traffic is generally confined to narrow 15 walkways to and from these parking areas to the various gates.” ECF No 12-1 at 102-3. 16 Due to the physical composition of Cal Expo, obstruction of these narrow walkways 17 clearly presents a significant safety risk to pedestrian attendees. See ECF No. 9-4, 18 Ex. E, Pickering Decl. at ¶ 15-16. Therefore, Defendants have a significant interest in 19 maintaining public safety on the Cal Expo premises outside of its gates. See Heffron, 20 452 U.S. at 650; Kuba, 387 F.3d at 858. 21 b. Narrow Tailoring 22 “[A] regulation of the time, place, or manner of protected speech must be narrowly 23 tailored to serve the government’s legitimate, content-neutral interests, but . . . it need 24 not be the least restrictive or least intrusive means of doing so.” Ward, 491 U.S. at 25 798. “Nevertheless, the restriction must (1) ‘promote[ ] a substantial government interest 26 that would be achieved less effectively absent the regulation,’ and (2) must not ‘burden 27 substantially more speech than is necessary to further the government’s legitimate 28 interests.’” Kuba, 387 F.3d at 861 (quoting Ward, 491 U.S. at 799. 1 Here, the Guidelines and free expression zones afford speakers peak access to 2 event attendees because the zones are located at the entrance/exits that all “patrons 3 funnel in through.” ECF No. 9-1 at 15; see also ECF No. 9-4, Ex. E, Pickering Decl. at 4 ¶ 16; see generally, id, Ex. D and ECF No. 15-3, Ex. A. Moreover, the record supports 5 Defendants position that “the locations of [the] free expression zones provides persons 6 with optimal access to the public entering . . . events such as the Hmong New Year 7 Festival, as they are within a few feet of all patrons, coming and going through the 8 admission/exit gates.” ECF No. 9-4, Ex. E, Pickering Decl. ¶ 17. “At the same time, the 9 speakers are not in the immediate path of the flow of the heavy pedestrian traffic that 10 occurs during any event.” Id. The Court thus concludes that the free expression zones 11 are narrowly tailored to serving Defendants’ interest in public safety. 12 c. Ample Alternative Channels of Communication 13 Finally, to be constitutional under a reasonable time, place, and manner analysis, 14 a regulation must “leave open ample alternative channels of communication of the 15 information.” Ward, 491 U.S. at 791. Defendants argue that the free expression zones 16 established under the Guidelines provide ample alternative channels of communication 17 because the zones are located at the entrance points, which “create a bottleneck” so 18 “the speaker may reach a high volume of people from just staying in one location.” ECF 19 No. 9-1 at 16. Plaintiff argues that the free expressions zones are not ample alternatives 20 because the speakers are “required to choose a 6’ x 6’ area on one side of the wide 21 gates . . . estimated . . . to be 70 or 80 feet across.” ECF No. 16 at 17 (internal citations 22 omitted). 23 However, as discussed above, the free expression zones are located right next to 24 the entrances/exits and are designed for optimal access to Cal Expo attendees. 25 Speakers can reach their intended audience as if they were standing elsewhere in the 26 /// 27 /// 28 /// 1 particular area of Cal Expo outside of the Venue in which the public is invited.13 2 Moreover, individuals are only confined to the free expression zones to conduct “free 3 speech activities,” such as leafleting or soliciting. They remain free to engage in one-on- 4 one conversations anywhere on Cal Expo property so long as if they wish to do so inside 5 the Cal Expo gates, they comply with the conditions of the event they are attending (i.e., 6 consent to a search, buy a ticket, etc.). Accordingly, because speakers are provided 7 optimal access to Cal Expo attendees while still maintaining public safety, this Court 8 finds that the Guidelines, through the free expression zones, provide ample alternative 9 channels of communication. Given the foregoing, the Court concludes that the 10 enforcement of the free expression zones is permissible. 14 11 12 CONCLUSION 13 14 For the aforementioned reasons, the parties’ Motions for Summary Judgment 15 (ECF Nos. 9, 11) are both GRANTED in part and DENIED in part consistent with the 16 foregoing. 17 IT IS SO ORDERED. 18 DATED: May 25, 2022 19 20 21 22 23 13 Plaintiff’s briefing argues that speakers are prohibited from “nearly all free speech on 24 [Cal Expo’s] millions of other square feet.” ECF No. 16 at 17. Given that the Court is evaluating the free expression zones without reference to the interior gated portion of the property, that argument is 25 unpersuasive.
14 Defendant Pickering’s liability is only implicated, according to Plaintiff, to the extent he is 26 identified in the Guidelines as establishing the location of the free expression zones and because he ratified Plaintiff’s ejection for leafleting inside the gates. Plaintiff has not provided evidence linking 27 Pickering to any individual registration requirement. Because Defendants’ Motion is well taken on the first two points, Pickering’s Motion for Summary Judgment is granted in its entirety for lack of a constitutional 28 violation.