SeaWorld Prevails Over Protesters

SANTA ANA, Calif. (CN) - Activists have no right to demonstrate at San Diego SeaWorld, though it is on parkland leased from the government, a California appellate court ruled Tuesday.

The 4th District Court of Appeal ruled that the sidewalk in front of the amusement park's ticketing entrance has never been held open for public discourse purposes, so it is not a traditional public forum.

Alfredo Kuba and others with San Diego Animal Advocates went to SeaWorld in 2007 with banners, signs, and leaflets and walked through the parking lot to SeaWorld's ticketing booth area to protest the park's treatment of animals.

The amusement prohibits trespassing, loitering, demonstrating, petitioning and leafleting on its leasehold. "No Trespassing" signs are posted every 30 feet on the perimeter fence, and at prominent locations on the property.

SeaWorld security officers told Kuba's group they were on private property and asked them to leave or face arrest. The guards also threatened to tow away their vehicles, prompting the group to leave the grounds.

SeaWorld rents the land from San Diego.

Kuba claimed the land is entirely within Mission Bay Park, a dedicated public park, where free speech is, or should be, allowed.

"Established law has always held that public sidewalks and public parks are traditional public forums," Kuba's attorney Corey Evans told Courthouse News.

"In this case, the court put the burden on us to prove that a public sidewalk in a public park should allow free speech simply because SeaWorld is leasing the land. It's one further step toward the ability of corporations to privatize public parks."

But the three-judge appellate panel found that San Diego's ownership of the land underneath the sidewalk in Mission Bay Park were not dispositive.

"(F)or the sidewalk in front of SeaWorld's ticketing entrance to be a traditional public forum, the sidewalk must be held open for public discourse purposes. Here, there is no evidence the sidewalk in front of SeaWorld's ticketing entrance is or has ever been held open for public discourse purposes," Judge Judith McConnell wrote.

Before SeaWorld was built, the leasehold was a tidal marsh that San Diego dredged to get to the land underneath. SeaWorld then built its main gate, ticketing entrance and all of the other structures on its premises, including the parking lot. The main gate and the exit do not include pedestrian walkways, the court noted.

Although there is evidence there may have been a conceptual pedestrian path through the parking lot 30 years ago, this falls short of showing that the sidewalk in front of the ticketing entrance is or has ever been held open for public discourse purposes, the court found.

There is no evidence that the sidewalk "is designed and furnished to induce patrons to congregate for entertainment, relaxation, or conversation," the court said.

"It's a Catch-22," Evans said. "The court is saying for the sidewalk to be a public forum, it must already be open for public disclosure. But obviously, if it were open for public discourse, no one would be filing suit to prove it's a public forum. The court is basically saying that since SeaWorld has prevented people from engaging in free speech on this public sidewalk, then it shows it is not open for free speech."

The court rejected Kuba's contention that SeaWorld's threat to tow the demonstrators' vehicles constituted a prohibited threat of violence.

"This threat does not provide sufficient support for Kuba's claim because it is not a threat of violence against a specific person or group of persons. It is also not the type of threat that would cause a specific person or group of persons to reasonably fear violence will be committed against them or their property," McConnell wrote.

Regardless, Kuba's claims are time-barred, the court ruled.

Kuba originally sued SeaWorld in Federal Court on state and federal constitutional grounds.

The court dismissed Kuba's state claims on April 21, 2011, when the 9th Circuit affirmed a federal court ruling for SeaWorld on Kuba's federal claims, and declined to exercise supplemental jurisdiction on the state claims.

Kuba had 30 days from the federal court's dismissal of his state law claims to file his state court action, but did not file it until almost 10 months later.

A similar case against SeaWorld and San Diego is pending in San Diego Federal Court.

In that case, police were called after activists carrying signs and handing out leaflets in front of the ticket booths at SeaWorld refused to leave. Police threatened to arrest them if they continued protesting. The case was stayed pending the ruling in Kuba's case.

"Part of the outcome is not looking good because of this decision," said Evans, who also represents the plaintiffs in the other case. "But there's another aspect to that case, which is whether you get a different analysis when you have the police assisting you in kicking out protesters rather than when you have a private company telling you to leave."

Attorneys for SeaWorld did not immediately respond to a request for comment Wednesday.

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