In the free-speech zones

Does the First Amendment to the United States Constitution apply when a speaker is on private property? What about the Speech Clause of the California Constitution? Does it matter if the public property is being leased by a private organization? If there is a fence and a paid-admission requirement to enter a certain portion of the property? Are free speech rights the same under the federal and state Constitutions? When should a federal court certify a question of state constitutional law to a state high court? These are some of the questions raised in the recent Ninth Circuit decision in Camenzind v. California Exposition & State Fair (9th Cir. 2023) 84 F.4th 1102, where the court had to determine “whether, under either the First Amendment or the California Speech Clause, a publicly owned facility may constitute a private forum when it is rented out to private organizations.” (Id. at 1115 [Vandyke, J., dissenting in part].)

I. Background

The property in question was the Cal Expo, “a sprawling event venue in Sacramento County owned and operated by the State of California.” (Id. at 1105.) “About half of the 800-acre property is surrounded by fencing and is accessible only through entry gates.” (Id.) The portion behind the fencing contains “various indoor and outdoor event facilities. The area outside of the fence largely consists of parking lots and sidewalks leading to the gates.” (Id.)

In the summer, the property is used to host the California State Fair. At other times of the year, the property is leased to private organizations, which usually charge admission and rent booths to vendors. Security is provided by the Cal Expo Police Department. (Id.)

Cal Expo’s “Free Speech Activities Guidelines” apply to all events at the property:

The Guidelines prohibit attendees from leafleting, picketing, or gathering signatures – collectively described as ‘free speech activities – within the enclosed portion of the fairgrounds. During the State Fair, anyone wishing to conduct ‘free speech activities’ in the enclosed portion must purchase an exhibit space. For privately hosted events, ‘free speech activity’ is allowed only if that activity is allowed by the terms of the lease.’ Private-event organizers typically prohibit attendees from soliciting other attendees to preserve value for vendors who pay to rent booths. (Id.)

These Guidelines also limit free-speech activities in the areas outside the enclosed portion – the parking lots and sidewalks. (Id. at 1106.) “To ‘prevent[] … accidents or [traffic] congestion which could lead to injury,’ the Guidelines require ‘free speech activities’ to be conducted in designated ‘Free Expression Zones’ directly outside the entry gates.” (Id.)

On the date in question, the property, which is used in the summer as the site of the California State Fair, was being leased by the Sacramento Hmong New Year Organization to host the 2018 Hmong New Year Festival. The festival attracted about 30,000 attendees. (Id.) “Vendors paid to rent booths at the festival, and festival attendees were required to purchase a ticket for entry.” (Id.)

One of these attendees was plaintiff Camenzind, an “Evangelical Christian [who] wanted to spread the message of his faith at the festival.” (Id.)

He arrived at the fairgrounds wearing a vest covered in pockets, each filled with custom coins bearing biblical verses and other religious messages. Camenzind planned to distribute the coins to festival attendees. …

The hundreds of coins bulging from Camenzind’s pockets attracted the attention of Cal Expo police when he reached the entry gates. A Cal Expo officer advised that handing out his coins inside the festival would violate the Guidelines. An officer told Camenzind that he could distribute the coins from the Free Expression Zones outside the entry gates. Camenzind declined, insisting that effective communication requires one-on-one communication . …

Camenzind purchased a ticket, entered the fairground gates, and began distributing his coins to fairgoers. When Cal Expo police officers spotted him doing so, they ejected him from the property. (Id.)

II. Procedural History

Camenzind sued in Sacramento County Superior Court, alleging that Cal Expo’s “enforcement of the Guidelines and Code of Conduct, both facially and as applied to him, violated his rights under the First Amendment of the United States Constitution and the Speech Clause of the California Constitution.” (Id. at 1106.) Cal Expo removed the case to federal court in the Eastern District of California. (Id.)

The district court granted Camenzind’s as-applied challenge to the enforcement of the Guidelines, finding that “the police officer arbitrarily enforced the Guidelines because there was no individual registration requirement for using the Free Expression Zones,” but granted Cal Expo’s motion for summary judgment on the facial challenge, “holding that the Guidelines did not violate Camenzind’s right to free expression under the United States or California Constitution.” (Id. at 1106-07.)

In the district court, Camenzind had argued that the entire Cal Expo property was a public forum—which entitled his speech to the highest protections under both federal and state constitutions. The district court agreed in part, concluding that the “area outside the fence – the parking lots and sidewalks leading up to the entry gates – constitute[d] a public forum under the California Speech Clause,” but that the fenced-in portion, which required ticketed admission, “was not a public forum under either the United States or California Constitution.” (Id. at 1107.)

On appeal to the Ninth Circuit, the court affirmed the district court. Judge Sanchez, writing for the majority, noted, quoting Park Management Corp. v. In Defense of Animals (2019) 36 Cal.App.5th 649, 661, that “the California Supreme Court’s decisions in this area are hard to synthesize . …” The court reviewed California Court’s evolving jurisprudence on the application of the Speech Clause of the California Constitution to various private, semi-private, and public properties and areas, noting that the applicable tests had evolved over time.

Ultimately, concluding that the Park Management case, which involved a protest at Six Flags Discovery Kingdom, offered a close analogy, the majority adopted the balancing test set out there. Under the Park Management test, the court balances “the competing interests of the property owner and of … society with respect to the particular type of property at issue to determine whether there is a state constitutional right to engage in the challenged activity.” (Park Management, 36 Cal.App.4th at 741-42 [cleaned up].) The Park Management test, at its core, focuses on “whether private property serves as the functional equivalent of a public forum.” (Id. at 742 [cleaned up].) The test considers several factors, including “the nature, purpose, and primary use of the property; the extent and nature of the public invitation to use the property; and the relationship between the ideas sought to be presented and the purpose of the property’s occupants.” (Id. [cleaned up].)

Applying this test, the Camenzind court concluded that the area outside the fence was a public forum under the California Speech Clause, but that the ticketed area behind the fence was not. A dissent by Judge Vandyke agreed with the first part of the majority’s conclusion but would have remanded the case to the district court for further factual development as to the ticketed, enclosed portion.

III. Discussion

Much of this case was driven by the interplay between the federal and state constitutions: federal constitutional protections generally provide a floor, not a ceiling. State analogues of various federal constitutional protections, such as, for example, the Speech Clause of the California Constitution, can provide greater protections than offered by the federal constitution. (See 16 Am.Jur.2d, Constitutional Law § 88, Federal Constitution as Providing Floor for State Constitutional Rights.)

A. Public Fora Under the First Amendment

Under the First Amendment, special protections for speech are provided to “places which by long tradition or by government fiat have been devoted to assembly and debate.” (Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n. (1983) 460 U.S. 37, 45.) Under the First Amendment, traditional public fora “include streets, parks, and sidewalks – publicly owned spaces which, for ‘time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” (Camenzind, 84 F.4th at 1108 [quoting Perry, 460 U.S. at 45].)

Generally, under the First Amendment, public fora are located on publicly-owned property, although there are exceptions, such as when privately owned property takes on all the features of a traditional public forum. (See Marsh v. Alabama (1946) 326 U.S. 501, 502 [finding that First Amendment rights were protected on the private property of company town owned by corporation because the town had “all the characteristics of any other American town . … [T]he town and its shopping district are accessible to and freely used by the public in general, and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.”].)

B. Public Fora Under the California Speech Clause

As noted in the seminal case in this area, Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 908, the Speech Clause of the California Constitution differs in wording from the First Amendment to the United States Constitution, and has been held to offer a greater scope of protection than the First Amendment:

[A]rticle I, section 2 of the state Constitution reads: “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.” Though the framers could have adopted the words of the federal Bill of Rights they chose not to do so. … Special protections thus accorded speech are marked in this court’s opinions. [This Court has] noted that “(a) protective provision more definitive and inclusive than the First Amendment is contained in our state constitutional guarantee of the right of free speech and press.”

(Id. [cleaned up].)

Robins held that, under the California Constitution, individuals had a right to peacefully gather signatures for a petition at a regional shopping center, given the nature of the activity and the nature of the suburban shopping center (at that time), which served more and more as a kind of new town square or public forum. (Id. at 910.) “A privately owned shopping center may constitute a public forum under the [California] Constitution because of the growing importance of the shopping center as a place for large groups of citizens to congregate and to take advantage of the numerous amenities offered there, and also because of the public character of the shopping center, which is a result of the shopping center’s owner having fully opened his property to the public.” (Id. at 910 n.5.)

With the understanding that the California Constitution offers greater speech protection than the federal Constitution, the Camenzind court concluded that it “need not decide whether the area outside the fence [at the Cal Expo was] a public forum under the First Amendment” because “the California Speech Clause provide[d] ‘independent support’ for Camenzind’s argument that it was indeed such a forum . …” (Camenzind, 84 F.4th at 1110 [cleaned up].) The court stated that by analyzing the question under the California Constitution, it would be adhering to the doctrine of Constitutional avoidance and “avoid the determination of the federal constitutional question.” (Id. [cleaned up].) As noted in International Soc. For Krishna Consciousness of California Inc. v. City of Los Angeles (2008) 530 F. 3d 768, 773-74:

It is well-established that [federal] court[s] should avoid adjudication of federal constitutional claims when alternative state grounds are available … even when the alternative ground is one of state constitutional law. … When the state constitutional provisions are co-extensive with related federal constitutional provisions, we may decide the federal constitutional claims because that analysis will also decide the state constitutional claims. … However, when the state provisions offer more expansive protection than the federal constitution, we should first address the state constitutional claim in order to avoid unnecessary consideration of the federal constitutional claim.

(Cleaned up.)

Examining California cases interpreting the Speech Clause and its applicability to various forms of private property, the Camenzind court noted that the tests California courts had utilized were less than models of clarity: “Outside of shopping centers, California’s public forum test, and how that test differs from its federal counterpart are not abundantly clear.” (Id. [cleaned up].) The court observed that, in Golden Gateway Center v. Golden Gateway Tenants Association (2001) 26 Cal.4th 1013, 106, the California Supreme Court had “held that a privately owned apartment complex was not a public forum,” finding that it was “not the functional equivalent of a traditional public forum because it was not freely and openly accessible to the public,” but that “no justice had articulated a precise standard to judge [when] private property constitutes a public forum for free speech purposes under California’s Constitution.” (Camenzind, 84 Cal.4th at 1111 [cleaned up].)

The Camenzind court further observed that “[t]he California standard for analyzing government-owned fora is similarly elusive,” noting that a “basic incompatibility” test announced in U.C. Nuclear Weapons Labs Conversion Project v. Lawrence Livermore Lab’y (1984) 154 Cal.App.3d 1157, 1163-64 – a test that required courts to consider “whether the communicative activity [at issue was] basically incompatible with the normal activity of a particular place at a particular time” – appeared to have been abandoned by California courts after U.C. Nuclear Weapons Lab. (Camenzind, 84 F.4th at 1111-12 [cleaned up].)

Concluding that no California Supreme Court case offered a clear or reliable recitation of the currently applicable test, the Camenzind court looked to the “closely analogous California Court of Appeal decision” in Park Management, noting that “an intermediate state appellate court decision … is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court would decide otherwise.” (Id. at 1112 [cleaned up].)

In Park Management, the court “considered whether Six Flags Discovery Kingdom constituted a public forum under the California Speech Clause”; the Camenzind court noted that “[s]everal important aspects of the Six Flags property match the Cal Expo fairgrounds: the Six Flags amusement park consists of a ticketed interior portion where the entertainment activities are located, accessible through a single point of entry and exit, and an exterior portion made up of parking lots and walkways.” (Id. [cleaned up].) The Park Management court “weighed society’s interest in free expression against the park-management corporation’s interests as a private property owner to conclude the unticketed, exterior portions of the Six Flags Discovery Kingdom are a public forum.” (Id. [cleaned up].)

Relying heavily on the similarities it perceived between the two properties, the Camenzind court similarly concluded that the exterior portion of the Cal Expo property was a public forum under the Speech Clause, and the ticketed, enclosed portion was not:

The public’s interest in engaging in expressive activity in the exterior portions of the Cal Expo is strong due to the significant volume of pedestrian traffic, … with the 2018 Hmong New Year Festival … attracting nearly 30,000 attendees. In comparing the public’s interest with that of the property holder, Cal Expo’s stated mission remains public oriented as a place to celebrate California … and the diversity of its people, traditions, and trends. … The exterior area of the Cal Expo is large and freely open to the public, akin to the exterior portions of the amusement park in Park Management . … Similarly, Camenzind handing out coins there is not likely to interfere with the property’s use. While the amusement park in Park Management had allowed activists to protest peacefully on its property for years, Cal Expo’s establishment of the Free Expression Zones analogously suggests a diminished interest in enforcing a private property right to exclude” Camenzind’s speech from the entirety of its grounds.

(Id. at 1113 [cleaned up].)

The Camenzind court, in concluding that the interior, ticketed portion of the Cal Expo was not a public forum, noted that Park Management’s “distinction between ticketed and unticketed portions of a property is … dispositive” in determining the nature of the enclosed portion of the grounds. (Id.) The court also relied on International Society for Krishna Consciousness, 530 F.3d 768, 775 where the Ninth Circuit had certified a question to the California Supreme Court as to whether “Los Angeles International Airport constituted a public forum under the California Speech Clause.” (Camenzind, 84 F.4th at 1113.) There, the California Supreme Court had considered “only the portions of the airport that were accessible by the general public,” and not “the parts of the airport that were accessible only by ticketed passengers.” (Id. [cleaned up].) The Camenzind court further noted that “Camenzind points us to no case holding that an enclosed area with a paid-entry requirement constitutes a public forum.” (Id.)

C. Reasonableness of the Speech Restrictions

Given the court’s findings as to the public forum questions, the court next considered whether “the restrictions on speech in the forum were permissible.” (Id. at 1114.) In a public forum, “the government may impose reasonable restrictions on the time, place, or manner of protected speech.” (Ward v. Rock against Racism (1989) 491 U.S. 781, 791.) “Time, place, or manner regulations must be content neutral, narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the message.” (Camenzind, 84 F.4th at 1114 [cleaned up].) The court noted that “the same requirements apply under the California Speech Clause.” (Id.) Noting that the “Free Expression Zones [were] content-neutral,” served interests in safety, prevented congestion, and “did not burden substantially more speech than [was] necessary” to achieve the government’s safety-related interests, the court concluded that the Free Expression Zones were a permissible time, place, and manner regulation. (Id.)

Given that the court had concluded that the enclosed portion of the Cal Expo was not a public forum, and that in such a forum speech restrictions “need only be reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view,” the court easily concluded that the Cal Expo Guidelines’ “prohibition on distributing literature in the enclosed area was likewise permissible.” (Id. at 1115 [cleaned up].)

Accordingly, the court affirmed the district court’s order granting Cal Expo’s motion for summary judgment. (Id. at 1115.)

IV. Concluding Thoughts

Camenzind presents a welter of intriguing issues. The Ninth Circuit took up the task of trying to sort through the difficult-to-synthesize California state court cases interpreting the Speech Clause as applied to various forms of private and public property. One might wonder if this was a case in which the Ninth Circuit could have, as in International Society for Krishna Consciousness, 530 F.3d 768, 775, certified the question to the California Supreme Court.

We conclude that the potential conflict between the application of the First Amendment and the California Constitution regarding freedom of speech at California’s airports is one that the California Supreme Court should have the opportunity to address and resolve. As the original panel noted, ‘[t]his case involves California plaintiffs and California defendants who disagree primarily over whether a California municipal ordinance violates the California Constitution.’ Given the complexity of California’s public forum doctrine … we agree with the original panel that this case is appropriate for certification.

(Id.; see California Rules of Court, rule 8.548.)

Given the observations in both Camenzind and Park Management about the lack of clarity in California case law interpreting the California Speech Clause, this case might’ve presented an opportunity to have the California Supreme Court clarify the current public forum test under the California Constitution. (Neither the district court nor the Ninth Circuit decision discusses certification – which may be for reasons beyond the scope of my inquiry here, which is simply a consideration of the decisions.)

That question to one side, despite the valuable efforts in Camenzind and Park Management to clarify the current California public forum test, questions no doubt remain. As the dissent notes, despite the seemingly categorical nature of the decision in Park Management regarding the nature of the enclosed, ticketed portion and the portion outside, that decision didn’t say anything about speech activity inside the ticketed area because the protest at Six Flags occurred outside the ticketed area. (Camenzind, 84 F.4th at 1118 [Vandyke, J., dissenting in part]. Similarly, in International Society for Krishna Consciousness, 48 Cal. 4th at 453, the California Supreme Court simply did not consider ticketed sections of the airport.

It may well be that choices not to consider ticketed, enclosed portions of properties such as LAX, Six Flags, or the Cal Expo in the public-forum analysis are the point: courts seem to assume that enclosed, ticketed portions of these properties are not public fora. Judge Vandyke’s dissent questions this assumption: “While the majority is correct that Camenzind ‘points us to no case holding that an enclosed area with a paid-entry requirement constitutes a public forum’ under California law, the majority points to no case holding the opposite, either. My own reading of California cases suggests that California’s test is more complicated, and less categorical, than the majority would hold. I would instead look to the various factors considered by the California Supreme Court in other cases, helpfully outlined by Park Management.” (Camenzind, 84 F.4th at 1118.)

The Free Speech Zones at the Cal Expo may be clearly delineated and marked off, but free-speech zones under the California Constitution’s Speech Clause don’t seem to be so clearly delineated yet.