Judge VanDyke has a point here.
The question is whether the Cal Expo fairgrounds in Sacramento are a public forum sufficient to allow people to distribute First Amendment literature therein. In this particular case, the plaintiff bought a ticket to the Hmong New Year Festival, started distributing literature, got ejected, and then sued.
Right or wrong, it's fairly clear that there's no right under federal law to distribute literature in a privately owned forum. Here, the fairgrounds were rented by a private party for the festival, so the federal claim doesn't succeed.
But as you may know, California has the Pruneyard doctrine, which is broader than federal law and allows access to private properties (e.g., shopping malls) under California's Free Speech Clause. That's plaintiff's much better argument.
The majority nonetheless rejects it, holding that, as a matter of California constitutional law, the Free Speech Clause doesn't apply to properties in which paid admission is required (unlike, say, a shopping mall).
Judge VanDyke dissents, saying that the majority's test doesn't actually derive from any California cases. He'd remand for more factual development.
As I said, Judge VanDyke has a point. I'm not at all confident that the California Supreme Court would come out the same way here. I might well have certified this one, particularly if the alternative was to create a fairly novel test that might perhaps be supported by some discussions in dicta from lower courts but nonetheless has never been articulated by the state supreme court.
As a tactical matter, I probably would have filed this lawsuit in state court, ditching the federal claim, rather than federal court. The lawyers from the Pacific Justice Institute adopted the opposite strategy, and it didn't work out, either in the trial court (which granted summary judgment to the defendant) or on appeal. Given Pruneyard -- which, I get, was rendered in an era in which California courts were perhaps more strongly free speech oriented than today -- I think that the state court might well have been more solicitous of the state law constitutional claim than federal judges.
Plaintiff can still take its shot in the United States Supreme Court, but I don't think that'll go anywhere.
