BURT CAMENZIND V. CALIFORNIA EXPOSITION AND STATE FAIR, ET AL, No. 22-15931 (9th Cir. 2023)
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Officers told Plaintiff that he could distribute his tokens in designated zones, referred to as Free Speech Zones, outside the entry gates but not inside the festival itself. Plaintiff nevertheless purchased a ticket, entered the festival, began handing out tokens, and was subsequently ejected. He brought suit alleging that the Cal Expo fairgrounds, in their entirety, constitute a traditional “public forum,” analogous to a public park, thereby entitling his speech to the most robust constitutional protections.
The Ninth Circuit affirmed the district court’s summary judgment for Defendants. The panel first held that the enclosed, ticketed portion of the fairgrounds constituted a nonpublic forum under the United States Constitution and the California Speech Clause. The space did not permit free access, its boundaries were clearly delineated by a fence, and no evidence suggested that access had previously been granted as a matter of course. The panel further noted that California courts have drawn distinctions between ticketed and unticketed portions of venues, and Plaintiff pointed to no case holding that an enclosed area with a paid-entry requirement constitutes a public forum. The panel determined that it need not decide whether the area outside the fence was a public forum under the First Amendment because the California Speech Clause provided independent support for Plaintiff’s argument that it was indeed such a forum, albeit subject to reasonable restrictions on speech. The panel concluded that the Free Speech Zones in the exterior fairgrounds were a valid regulation of the time, place, and manner of Plaintiff’s speech. The guidelines on distributing literature in the enclosed area were likewise permissible.
Court Description: First Amendment/Public Fora The panel affirmed the district court’s summary judgment for defendants in an action alleging that state police officers violated the First Amendment and the Speech Clause of the California Constitution when they removed plaintiff Burt Camenzind from a privately organized Hmong New Year Festival at the state-owned California Exposition and State Fair (“CalExpo”) for distributing religious tokens to attendees.
Officers told Camenzind that he could distribute his tokens in designated zones, referred to as Free Speech Zones, outside the entry gates but not inside the festival itself. Camenzind nevertheless purchased a ticket, entered the festival, began handing out tokens, and was subsequently ejected. He brought suit alleging that the Cal Expo fairgrounds, in their entirety, constitute a traditional “public forum,” analogous to a public park, thereby entitling his speech to the most robust constitutional protections.
The panel first held that the enclosed, ticketed portion of the fairgrounds constituted a nonpublic forum under the United States Constitution and the California Speech Clause. The space did not permit free access, its boundaries were clearly delineated by a fence, and no evidence suggested that access had previously been granted as a matter of course. The panel further noted that California courts have drawn distinctions between ticketed and unticketed portions of venues, and Camenzind pointed to no case holding that an enclosed area with a paid-entry requirement constitutes a public forum.
The panel determined that it need not decide whether the area outside the fence was a public forum under the First Amendment because the California Speech Clause provided independent support for Camenzind’s argument that it was indeed such a forum, albeit subject to reasonable restrictions on speech. The panel concluded that the Free Speech Zones in the exterior fairgrounds were a valid regulation of the time, place, and manner of Camenzind’s speech. The guidelines on distributing literature in the enclosed area were likewise permissible.
Dissenting in part, Judge VanDyke agreed with much of the majority’s analysis, but did not think the majority properly applied California law to determine whether the area inside the fence was a public forum under the California Speech Clause, nor was the record sufficiently developed to make that determination. Accordingly, Judge VanDyke would remand for the district court to develop the record and properly answer that question.
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