Law Review: May protesters gather at Six Flags in Vallejo?
When and where protesters may gather to hand out petitions or protest, whether it be the Vietnam or Iraq war or animal rights, is a thorny issue in California. Free speech rights versus private property rights. The most recent case involves protesters objecting to Six Flags Discovery Kingdom’s treatment of animals.
‘THEME PARKS ARE NO PLACE FOR ANIMALS’
Joseph Cuviello and others have long been protesting Six Flags use of animals at the theme park. On April 13, 2014, a group of eight protesters handed out leaflets and carried signs with messages such as, “RIP” with a picture of an elephant; “A day of fun for you … a lifetime of misery for him”; “Animals don’t belong at Six Flags”; “NOT FUN FOR ANIMALS.”
They were arrested which led to a Six Flags’ lawsuit against Cuviello and the group In Defense of Animals.
PROTEST AREA AT SIX FLAGS
The group had been protesting outside of the main gates at Six Flags. They were outside the ticketing booths but within a front admissions area adjacent to a parking lot and sidewalks. Clearly on private property, an area where patrons meet friends before going into the amusement park. The issue in this case was whether that non-ticketed exterior area of Six Flags was protected by California’s free speech laws such that protestors without permission could gather and hand out literature i.e. was that exterior area a “public forum for free speech.” The trial court ruled for Six Flags.
California’s Constitution protects the right of every individual to “freely speak, write and publish his or her sentiments on all subjects [subject to] being responsible for the abuse of this right.” Only a lawyer could love that language. This right to speak sometimes extends to speech on private property.
The leading case is Pruneyard Shopping Center, a 1979 California Supreme Court case where the Pruneyard Shopping Center was held to be a public forum such that protestors could gather.
By contrast, in the Court’s most recent decision, Ralph’s Grocery, the Supreme Court held that the entrance to an individual store within a shopping center is not a public forum under California law. As the Court wrote in the Ralph’s Grocery case, to be a public forum “an area within a shopping center must be designed and furnished in a way that induces shoppers to congregate there for purposes of entertainment, relaxation, or conversation, and not merely to walk to or from a parking lot, or to walk from one store to another, or to view a store’s merchandise and advertising displays.”
In the Fashion Valley Mall case the Supreme Court ruled that protestors had the right to express their opposition to the war in Vietnam by distributing leaflets in Union Station in Los Angeles – as long as no one interfered with railroad business.
My read of this First District Court of Appeal opinion is that the Court had a difficult time with the facts, trying to balance the public’s interest in engaging in expressive activity and Six Flags’ interest in protecting its right to control its property.
The Court quoted the U.S. Supreme Court, “[u]rging customers to boycott a store lies at the core of the right to free speech.” Not sure today’s Court would still agree. It was important to the Court of Appeal that the protesters caused no disruption and did not interfere with park attendance.
The Court ultimately concluded the exterior, un-ticketed portion of Six Flags was a public forum area under California’s Liberty of Speech Clause.
The Court closed with this caveat, “To be clear, we do not hold that the exterior areas of all privately owned amusement parks or similar privately owned venues are public fora for free expression under California law. Each case is of course unique, and each turns on its particular facts. We merely hold on the undisputed facts here that Park Management may not ban expressive activity in the non-ticketed, exterior areas of Six Flags Discovery Kingdom.”
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or http://www.portersimon.com.