A Christian man who claims police and CalExpo State Fair officials violated his constitutional rights by prohibiting him from proselytizing at the fairgrounds during a private event says a federal appeals panel erred in saying his removal didn't violate his speech rights under the California state constitution.
Burt Camenzind filed a petition for rehearing with the U.S. Ninth Circuit Court of Appeals in San Francisco on Nov. 14.
The petition asks the court to revisit an earlier decision which addressed the question of whether free speech rights are limited at a public facility, otherwise operated by the government, when it is rented by others for a private event.
On Oct. 31, a three-judge panel of the Ninth Circuit court sided with the California Exposition and State Fair organization, which is run by a board appointed by California's governor, in the case brought by Camenzind.
The lawsuit asserts police wrongly removed him from the CalExpo fairgrounds in Sacramento in 2018 after he distributed religious tokens at a Hmong New Year festival.
In that 2-1 decision authored by Ninth Circuit Judge Gabriel Sanchez, the panel majority ruled that the portion of the fairgrounds in which entry can be restricted to those holding tickets should not be considered the same kind of "public forum" as the area of the fairgrounds outside the barriers. Thus, police and private event organizers can control people's speech within what the panel majority considered to be the less public area of government-owned property.
"Cal Expo, like any event-venue owner, makes the facilities inside the gates attractive by offering lessees the freedom to control them," Sanchez wrote. "A couple in search of a wedding venue, for example, would be uneager to book a property where they could not exclude an uninvited uncle. By allowing the lessee to set the rules for their events - and by enforcing those rules - Cal Expo adds value for such customers. We think it perfectly reasonable for Cal Expo to have done so here."
In dissent, Ninth Circuit Judge Lawrence Van Dyke said the majority opinion would present new sets of issues for courts to grapple with.
He noted the notion of charging for admission - as the Hmong New Year's Festival did - can't be the primary factor used by courts to determine if an event at a government-owned public facility like the CalExpo fairgrounds should be considered a public or private event, for the purposes of limiting free speech rights.
"Beyond the requirement that attendees had to purchase tickets to enter and vendors paid to rent booths, we know very little about the festival," Van Dyke wrote. "If the festival is exclusive in some important respects (which seems unlikely given that the event attracted nearly 30,000 participants), it might be more like the company picnic example above, and thus not a public forum.
"But if the festival allows any member of the public to buy a ticket (which seems most likely), and inside includes areas for visitors 'to stop and linger, [and] to leisurely congregate for purposes of relaxation and conversation,' it might be more like [a] farmers’ market ... its entrance fee notwithstanding.
"Without additional facts, which I cannot find in the record, we cannot properly evaluate where this event falls on the spectrum. But what I am sure of is that ticketing alone is not the touchstone California law requires."
Camenzind's attorneys with the Pacific Justice Institute pointed to Van Dyke's reasoning in their petition asking the full Ninth Circuit to take another look at the panel decision.
“The panel decision’s novel, narrowed approach to California’s Liberty of Speech Clause warrants further consideration by the panel, an en banc panel, or the California Supreme Court,” the petition states. “... The panel decision calls into question more than three decades of this Court’s jurisprudence applying Article I, Section 2 [the Liberty of Speech Clause] of the California Constitution.”
They asserted the ticketing test used by Sanchez "is fragile and likely to be short-lived unless reconsidered.”
The petition noted the Ninth Circuit has previously denounced the privatization of public property to the detriment of free expression: “This Court specifically invalidated so-called security and free expression zones - of the type at issue here - on more than one occasion. Kuba v. 1-A Agric. Ass’n, (9th Cir. 2004); Bay Area Peace Navy v. United States, (9th Cir. 1990); Accord, Galvin v. Hay, (9th Cir. 2004)."
The panel’s decision will foster uncertainty on such precedents, the petition states: “Especially since they have not been either distinguished or harmonized. The panel decision appears to be taking the Circuit in a very different, more restrictive direction.”
The petition also argues that rehearing is further warranted because the plaintiff’s speech activities were materially different from what the panel expressed concern about: “For example, the opinion hypothesizes that a ruling in Camenzind’s favor would authorize wedding crashers for ceremonies held on public grounds. Yet the material facts are nothing of the kind. The festival at issue here was open to the general public, subject only to the purchase of a modestly priced ticket. Unlike the hypothetical uninvited guest, Camenzind had been attending the same festival and sharing his beliefs there for many years prior to his ejection.”
The petition goes on to say that the panel’s opinion conflicts with at least seven of the Court’s prior public forum precedents, creating a potential for confusion in lower courts.
“Lastly, the panel’s misapprehension of the relatively modest access sought by Camenzind—consistent with what he had enjoyed for many years—together with the state rather than private enforcement taken against him, leads the panel to rule on hypotheticals not reflective of the material facts," Camenzind's attorneys wrote.
The petition for rehearing was filed by attorneys Kevin T. Snider and Matthew McReynolds, of the Pacific Justice Institute, of Sacramento.
Jonathan Bilyk contributed to this report.