Government-Owned Event Venue Lawfully Designated Free Expression Zones

CATEGORY: Client Update for Public Agencies, Law Enforcement Briefing Room, Public Education Matters
CLIENT TYPE: Public Education, Public Employers, Public Safety
DATE: Dec 07, 2023

Burt Camenzind visited the Hmong New Year Festival hoping to distribute religious tokens to attendees.  The festival, a privately organized event, took place within the state-owned California Exposition and State Fair (Cal Expo) fairgrounds.  The organizers had leased the fairgrounds for the event.  Cal Expo police officers told Camenzind that he could distribute his tokens in designated zones, referred to as Free Speech Zones, outside the entry gates only.  Camenzind nevertheless purchased a ticket, entered the festival, and began handing out the tokens before officers removed him.

Camenzind sued, alleging that Cal Expo’s conduct violated the First Amendment of the U.S. Constitution and the Speech Clause of our California Constitution.  The district court determined that the area outside of the fence—the parking lots and sidewalks leading up to the entry gates—constituted a public forum under the California Speech Clause.  In addition, Cal Expo’s establishment of Free Expression Zones near the entry gates was a permissible regulation of the time, place, and manner of speech.  Conversely, the enclosed area was not a public forum under either constitution.  Finally, the court determined that the prohibition on “free speech activities” inside the enclosed area was reasonable and content-neutral, so Carmenzind’s rights were not violated.  Carmenzind appealed.

The Ninth Circuit Court of Appeals agreed with the district court.  The Ninth Circuit found that the enclosed portion of the fairgrounds was not a traditional public forum because:  it was not a public thorough fair; when Cal Expo leased the area, the public did not have free access to it; and patrons had to generally pass through a security checkpoint and purchase a ticket to gain entry.  The fact that the boundaries of the space were clearly marked and surrounded by fencing signaled that the space was not intended for the exercise of First Amendment rights.

While the Ninth Circuit found that the exterior, unticketed portion of the Cal Expo was a public forum under the California Speech Clause, Cal Expo’s designation of a part of the exterior area as a Free Speech Zone was a valid regulation of speech.  In a public forum, a public entity “may impose reasonable restrictions on the time, place, or manner of protected speech.”  Those restrictions must be content neutral, narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication.  Cal Expo’s regulation was content-neutral because space in the zones was allocated on a first-come, first-served basis. And, the zones served a substantial government interest in public safety by preventing congestion.  Finally, the zones did not “burden substantially more speech than [was] necessary” to achieve the government’s public-safety interest.

Camenzind v. California Expo and State Fair, 84 F.4th 1102 (9th Cir. 2023). 

Key Takeaway:  A public entity may be able to prevent its event spaces from becoming traditional public forums where all free speech is allowed by: enclosing the space; leasing it to groups; and designating a free speech zone outside of the ticketed area of the space.

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