On June 20, 2019, the First District Court of Appeal in Park Mgmt. Corp. v. In Def. of Animals (2019) 2019 Cal.App.LEXIS 568, held the exterior, un-ticketed areas of an amusement park are a public forum for expressive activity.
Background
Six Flags Discovery Kingdom (Six Flags) is an amusement park in Vallejo, California (City) that offers rides and animal attractions to its patrons, which can reach 15,000 daily visitors. Six Flags is owned and managed by Park Management Corporation (“PMC”) and covers 138 acres, including a roughly half acre exterior admissions area separated from the ticked section by turnstiles. In this area, there is no space for outdoor performances or other entertainment, it is only suitable for guests to meet and enter or exit the ticketed area.
The Six Flags property is designated in the City’s General Plan as “Community Park” and zoned as “public and quasi-public facilities” intended to “implement policies …of the Vallejo general plan which relate to governmental, and quasi-governmental services, schools, parks, and open space areas.”
In 2007, PMC began limiting expressive activity to certain areas of the Six Flags entrance while minding a 2006 federal district court holding that affirmed an individual’s right to protest at the entrance. In 2014, after an opinion held another park was not constitutionally required to allow protests in its parking lot or entrance, PMC banned all expressive activity on the property. Such activities were relegated to a nearby public sidewalk.
In April 2014, protestors held signs at the Six Flags entrance, advocating for animal rights. Local police and the district attorney declined to intervene without a court order. PMC filed a case against the protestors for private trespass. The trial court ruled in favor of PMC and the protestors appealed.
Appellate Court Finds Amusement Park Un-ticketed Area Is a Public Forum
By considering several factors, the court determined that the un-ticketed areas of Six Flags were the “functional equivalent” of a public forum for expressive activities. Specifically, the court looked at “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 ideas sought to be presented and the purposes of the property’s occupants.”
The court applied a balancing test and evaluated “the competing interests of the property owner and the society with respect to the particular property or type of property at issue.” As a preliminary fact, the court set out the zoning designation is a “relevant local law bearing on the public character of [the] property.” The court explained, “Six Flags is zoned by local law in a manner similar to that of a park, which is a quintessential type of public forum, even if privately owned.” However, Six Flags diverges from the definition of a traditional park where it does not contain any open spaces freely accessible to the public for recreation and relaxation, the entrance area is only for passing through into the ticketed area. Therefore, Six Flags was not definitively a public forum.
The court then balanced the parties interests in the issue and found PMC’s interest in restricting free expression in the entrance area was minimal where the area was large and freely open to the public. Further, parties had stipulated that the protest activities caused no quantifiable decrease in park attendance.
In contrast, the public’s interest in engaging in expressive activity at the entrance area was strong. The entrance was the only space available to protest and reach the attention of the 15,000 daily visitors, a large portion of the population, without buying a ticket. Further, “importantly, though not by itself dispositive, the park is zoned as quasi-public, which under the local zoning code means it’s a facility of a public nature….it implies the property has attributes in which the public has an interest.” Finally, the protestors’ message was directly related to features of Six Flags such that the court likened the protest to a demonstration urging boycott of a business. The court explained “urging customers to boycott…lies at the core of the right to free speech.”
The court was careful to note that it “[did] not hold that the exterior areas of all privately owned amusement parks or similar privately owned venues are public fora for free expression.” Instead, such a determination is to be made by a court relying on “unique” and “particular facts.”
Finding the facts sufficient to support such a finding here, the court reversed the trial court decision.
Advisory
Portions of private property held open to the public may be the “functional equivalent” of a public forum for expressive activity where the public’s interest in expression greatly outweighs the property owner’s interested in privacy.
Questions
If you have any questions concerning this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.
Mona Ebrahimi
mebrahimi@kmtg.com | 916.321.4597
Olivia Filbrandt
ofilbrandt@kmtg.com | 916.321.4290