E-mails with Disneyland's general counsel on free speech activities
4
u15t2015 Subject: Re: Downtown Disney Print From To: [email protected], Date: Friday, N,4ay 1, 2015 10:45 F']M Dear Mr. Ontko. Pruneyard and its progeny was not only meant to exclusively establish just designated areas in privately owned shopping centers as public forums, but it establishes any "common area" on private property, including stand alone stores or business with "common aTeas" open to the public, where there is a reasonable expectation established that the purposes of the public's access is for, some part, social congregation. As I understand il from several You-fube videos posted on the web, Disneyland allows the public to congregate inside the Esplanade at nighttime to be "entertained" by its fireworks show (i.e., 2015 New Years Eve.) Allowing consent for social congregation for the purposes of entertaining the public establishes the social congregational aspects of the Esplanade as a public forum. The fact that there are also seating inside the Esplanade to encourage social activaties for the pubic to gather also establishes this as a common area under Pruneyard. The word "esplanade" literally translates to "promenade" or "plaza," akin to the definition established by Pruneyard for an equivalent to the public town square as described in the landmark Supreme Court decision from 1980. Even by your definition of "private property," to establish discrimination against persons trespassing on it, you would have to fully enclose the area with a fence and post trespass signs all along the boundary (no less than 3 for every mile) under California Penal Code $602 to be able to establish selective exclusion of some or all of the public from entry at Disney's discretion as the property owner. I understand from Unite flere Local 1 1 that the police did not feel they could kick any Free Speech advocates out of the Esplanade, including Local 1 1, because they determined that the Esplanade was a public forum. which Disney responded by adding some fencing and gates to one end of the entrance; however, it does not fully enclose the fJsplanade as required by California Penal Code $602. This still does r.rot suffice as Disney would have to completely enclose the Esplanade with fencing to remove the public forum distinction. Merely adding some gates and occasional fencing as "window dressing" does not meet this legal criteria for criminal trespass. And since the Esplanade is no longer just a parking lot as it was before 2000, the sole purpose of the Esplanade is no longer for the efficient egress of customers as previously decided in Disneyland's own successful case to evict a free speech advocate In re Ball, (1972)23 Cal.App.3d 380, 386. And you are correct: federal Constitional law does not apply to First Amendment rights on private property (in the rest of the country); however, state free speech rights do apply, and they have been reaffirmed by the U.S. Supremetourt under Pruneyard in the State of California where Disneyland resides. Finally, I should mention that Disney likely has given up its rights to exclude anyone from the public to enter the Esplanade under the state's easement laws by prescription (which require only 5 years to mature) and by necessity for access to public transportation in its bus lanes on the east side of the resort. As eloquent as your arguments were above, it's not likely going to hold up in a court of law if challenged, so lwould like to seriously talk about the ground rules for bringing our group inside the Esplanade without all the bluffs and empty lhreats. Also, I don't think a court of law will find any of your time, place, manner, and conlent restrictions reasonable, even inside Downtown Disney. Sincerely, - On Friday, May 1,2015 6:00 PM, "Ontko, David A" <[email protected]> wrote: II, Please be advised that the area bordered by the Disneyland Park enlrance turnstiles on the North, the Disney California Adventure entrance turnstiles on the South, and by Security screening stations on the East and West (commonly known as the "Esplanade") is private property and is not a public forum. The Esplanade is a restricted area that has been crealed as an integral part of the Disneyland Resort Theme Parks for the purposes of eniorcing the Disneyland Reson Park Rules, selling tickets and facilitating safe entrance to. and movement between, the two ticketed areas. Contrary to your assertions, the f:splanade is not a shopping center subject to California Constitutional expressive activity rights established by Pruneyaid and its progeny. Nor do Federal F:irsl Amendment expression rights apply to private property. Finally, your group is not participating in labor ielaGO ictivities so refeienie to rights under the National L"abor Relations Act is inapplicable. Again, the Esplanade is private property and is noiavailable for your group, or any similar group, to conduct demonstrations, protests or any type of expressive activity. As Ms Nicassio has indicated to.you, the Disneyland Resort has established reasonable Time, Place and Manner Rules governing the use of appropriate areas to conduct certain expressive activity within Downtown Disney in accordance with rights established under the Califbrnia Coistitution as described by PfUeyaid and its progeny. lf your group wishes to conduct appiopriate expressive acti-vity at Downtown Disney, please follow up with Ms. Nicassio to obtain the fRttles and an Application. lf you have questions regarding the Rules, have your atiorney contact me to discuss. David A. Ontko Head of Legal -. Disneyland Resort Ph:714-781-7848 Fx.407-938'4419 Reply-To:b Date: Thursday, April 30, 2015 at l_2:37 pM https://us-m96.mail.yahoo.com/reoilaunch? rand=c4cu5hebl01S 1t4
description
Communications with Disneyland general counsel David A. Ontko about free speech activities in the Esplanade and DTD common areas.
Transcript of E-mails with Disneyland's general counsel on free speech activities
-
u15t2015
Subject: Re: Downtown Disney
Print
From
To: [email protected],Date: Friday, N,4ay 1, 2015 10:45 F']M
Dear Mr. Ontko.
Pruneyard and its progeny was not only meant to exclusively establish just designated areas in privately owned shopping centers as public forums, but itestablishes any "common area" on private property, including stand alone stores or business with "common aTeas" open to the public, where there is areasonable expectation established that the purposes of the public's access is for, some part, social congregation.
As I understand il from several You-fube videos posted on the web, Disneyland allows the public to congregate inside the Esplanade at nighttime to be"entertained" by its fireworks show (i.e., 2015 New Years Eve.) Allowing consent for social congregation for the purposes of entertaining the publicestablishes the social congregational aspects of the Esplanade as a public forum. The fact that there are also seating inside the Esplanade to encouragesocial activaties for the pubic to gather also establishes this as a common area under Pruneyard.
The word "esplanade" literally translates to "promenade" or "plaza," akin to the definition established by Pruneyard for an equivalent to the public townsquare as described in the landmark Supreme Court decision from 1980. Even by your definition of "private property," to establish discrimination againstpersons trespassing on it, you would have to fully enclose the area with a fence and post trespass signs all along the boundary (no less than 3 forevery mile) under California Penal Code $602 to be able to establish selective exclusion of some or all of the public from entry at Disney's discretion asthe property owner.
I understand from Unite flere Local 1 1 that the police did not feel they could kick any Free Speech advocates out of the Esplanade, including Local 1 1,because they determined that the Esplanade was a public forum. which Disney responded by adding some fencing and gates to one end of the entrance;however, it does not fully enclose the fJsplanade as required by California Penal Code $602.This still does r.rot suffice as Disney would have to completely enclose the Esplanade with fencing to remove the public forum distinction. Merely addingsome gates and occasional fencing as "window dressing" does not meet this legal criteria for criminal trespass. And since the Esplanade is no longer justa parking lot as it was before 2000, the sole purpose of the Esplanade is no longer for the efficient egress of customers as previously decided inDisneyland's own successful case to evict a free speech advocate In re Ball, (1972)23 Cal.App.3d 380, 386.And you are correct: federal Constitional law does not apply to First Amendment rights on private property (in the rest of the country); however, state freespeech rights do apply, and they have been reaffirmed by the U.S. Supremetourt under Pruneyard in the State of California where Disneyland resides.
Finally, I should mention that Disney likely has given up its rights to exclude anyone from the public to enter the Esplanade under the state's easementlaws by prescription (which require only 5 years to mature) and by necessity for access to public transportation in its bus lanes on the east side of theresort.
As eloquent as your arguments were above, it's not likely going to hold up in a court of law if challenged, so lwould like to seriously talk about the groundrules for bringing our group inside the Esplanade without all the bluffs and empty lhreats.
Also, I don't think a court of law will find any of your time, place, manner, and conlent restrictions reasonable, even inside Downtown Disney.
Sincerely,
-
On Friday, May 1,2015 6:00 PM, "Ontko, David A" wrote:
II,Please be advised that the area bordered by the Disneyland Park enlrance turnstiles on the North, the Disney California Adventure entrance turnstiles onthe South, and by Security screening stations on the East and West (commonly known as the "Esplanade") is private property and is not a public forum.The Esplanade is a restricted area that has been crealed as an integral part of the Disneyland Resort Theme Parks for the purposes of eniorcing the
Disneyland Reson Park Rules, selling tickets and facilitating safe entrance to. and movement between, the two ticketed areas. Contrary to yourassertions, the f:splanade is not a shopping center subject to California Constitutional expressive activity rights established by Pruneyaid and its progeny.Nor do Federal F:irsl Amendment expression rights apply to private property. Finally, your group is not participating in labor ielaGO ictivities so refeienie
to rights under the National L"abor Relations Act is inapplicable. Again, the Esplanade is private property and is noiavailable for your group, or any similargroup, to conduct demonstrations, protests or any type of expressive activity.
As Ms Nicassio has indicated to.you, the Disneyland Resort has established reasonable Time, Place and Manner Rules governing the use of appropriateareas to conduct certain expressive activity within Downtown Disney in accordance with rights established under the Califbrnia Coistitution as describedby PfUeyaid and its progeny. lf your group wishes to conduct appiopriate expressive acti-vity at Downtown Disney, please follow up with Ms. Nicassio toobtain the fRttles and an Application. lf you have questions regarding the Rules, have your atiorney contact me to discuss.
David A. OntkoHead of Legal -. Disneyland ResortPh:714-781-7848Fx.407-938'4419
-
Reply-To:bDate: Thursday, April 30, 2015 at l_2:37 pM
https://us-m96.mail.yahoo.com/reoilaunch? rand=c4cu5hebl01S 1t4
RAD PDFHighlight
RAD PDFHighlight
RAD PDFHighlight
RAD PDFHighlight
RAD PDFHighlight
RAD PDFHighlight
-
5/1512015 PrintTo: David Ontko Cc: "Nicassio, Jean" Subiect: Re: Downtown Disney
I'm sure you've heard by now that, more than 20 years ago,
-
group inlll won a landmark Supreme Court case, striking down theCity of Anaheim's anti-solicitation laws. According to your "rules," there are several unlaMul restrictions on time, place, manner, and even content ofspeech that is quite disturbing.
In addition, Ms. Nicassio inferred that any protected activity inside the Esplanade is not allowed. I was told by your hotel workers that they successfullyprotested inside the Esplanade in 2011 , and the Anaheim Police Department refused to eject the union protesters upon Disneyland's request for trespassadmonitions. In addition, the union won a complaint afjainst Disney's free speech restrictions on property with the NLRB.ls this all true? tsecause these actions set some very important precedents.
!D
On Wednesday, April 29. 2015 t:29 pV. i'Ontko, David A" wrote:
IITIl'm very surprised that you're unwilling to discuss the issues you have raised. Be assured that we have worked diligently at Disneylandto establish processes that comply with applicable legal requirements. I remain available to discuss these matters with you or with yourcounsel.
David A, Ontkollead of Legal -.Disneyland ResortPh:714-781-7848Fx:407-g3B-4419
Reply-To:Date: Wednesday, April 29, 2015 at 12:13 PMTo: David Ontko Cc: "Nicassio, Jean"Subject: Re: Downlown Disnev
I'm not suro what there is to discuss. We really don't need your permission to come on property for protected federal First Amendment right activities, soI'm not quite sure why all solicitors arc required to apply and get approval from you through an application. Frankly, I'd rather keep everything in ourdiscussion on the record.
There seems to be several restrictions in time, place, manner, and content in your rules in Downtown Disney which also seem legally problematic. Andyou consider the Esplanade a corridor for only the purpose of getting guests from point A to point B? Really!?ll
On Sunday, April 26,2015 8:17 PM, "Ontko, David A" wrote:
I-rl'm available to discuss with you by phone. Please call my offlce at 714-781-7848.
David A. OntkoHead of Legal
- Disneyland Resort
Pn:714:181:/848Fx: 407-938-44'l I
From:Reply-Date: Saturday, April 25, 2015 at 1:3:t PMTo: "Nicassio, Jean" , David Ontko Subiect: Re: Downtown Disney
Dear Mr. Ontko:
I have been given your contact infofmation by Jean Nicassio, regarding questions about soliciting inside and near the Esplanade, which is attached to theshopping district of Downtown Disney and the entrances to ihe Disney theme parks.
Ms Nicassio tried to describe the Esplanade as a corridor that is not a public forum; however, the open and expansive layout of the Esplanade moreresembles a plaza with numerous areas for seating which facilitates the congregation of groups to socialize, which as you know subjects this area to theterms of a public forum or common area under California law.
The Esplanade. for all lntents and purposes, is a public plaza resembling a town square with social congregational properties defined by the CA SupremeCourt decision, Pruneyard v. Robins; therefore, it appears to be a public forum for the purposes of free ipeich for anyone in the public io use. In addition,no ticket is needed to be purchased in order to gain enlrance to the Esplanade, so it is open to the public.
hitpsl/us-mg6.mail,yahoo.com/reollaunch?.rand= a4cu5he5l01$ Z4
RAD PDFHighlight
RAD PDFHighlight
RAD PDFHighlight
RAD PDFHighlight
RAD PDFHighlight
RAD PDFHighlight
RAD PDFHighlight
RAD PDFHighlight
RAD PDFHighlight
-
5115t2015 PrintFrom what I also understand, the general public is allowed to congregate there nightly to be entertained by the fireworks show. In addition to this, I havebeen told by an organizer of Unite Here Local '1 1 that they had previously been allowed to protest inside the Esplanade for a union labor dispute withDisney. The Anaheim police sided with Local 11 in allowing them to stay there for their free speech activities.
Thus, we would like your answer whether free speech groups, such as ours, are allowed to handbill inside and around the Esplanade areas.
Sincerely yours,
-
On Thursday. Aphl 23, 2015 11:16 P
ljear Mr. OntkoI have been given your contact information by Jean Nicassio, regarding questions about soliciting inside and near the Esplanade, which is attached to theshopping distrrct of Downtown Disney and the entrances to the Disney theme parks.
Ms. Nicassio tried to describe the Esplanade as a corridor that is not a public forum; however, the open and expansive layout of the Esplanade moreresembles a plaza with numerous areas for seating which facilitates the congregation of groups to socialize, which as you know subjects this area to theterms of a public forum or common area under California law.
The Esplanade, for all intents and purposes, is a public plaza resembling a town square with social congregational properties defined by the CA SupremeCourt decision, Pruneyard v. Robins; therefore, it appears to be a public forum for the purposes of free speech fr.rr anyone in the public to use. In addition,no ticket is needed to be purchased in order to gain entrance io the Esplanade, so it is open to the public.
From what I also understand, the general public is allowed to congregate there nightly to be entertained by the fireworks show. In addition to this, I havebeen told by an organizer of Unite llere Local 11 that they had previously been allowed to protest inside the Esplanade for a union labor dispute withDisney. The Anaheim police sided with L.ocal 11 in allowing them to stay there for their free speech activities.
Thus, we would like your answer whether free speech groups, such as ours, are allowed to handbill inside and around the Esplanade areas.
Sincerely yours,
rTOn Wednesday, April 22.,2015 1:57 PM, "Nicassio, Jean" wrote:
Hey IPer your request the below is our Legal POC for your attorney:
David Ontko714-781-7848
Thank you,
,Jean
Sent from my iPhone
On Apr 21, 2015. at 6:39 PM, wrote:
I understand from a hotel worker at the Disneyland Hotel that they were able to successfully solicit a union protest inside the Esplanade in201'1 , handbilling leaflets. The Anaheim police refused to evict any of the union activists because the Esplanade was deemed 10 be "open tothe public."
'The word "t:splanade" literally means "Plaza" in Spanish, and much like a town square, it has attributes for social congregation (e.g., sears,^nan cna^6Q atn \ r.6l5e understand that the public is allowed to congregate there at night to be entertained by firewoiks, which thus defines itas a "common area" under the deflnition of Pruneyard with social congregational properties.
Do you ihink you can check with your legal department about this because we'd hate to bring a lawsuit down on Disneylllagainst theCity of Anaheim a few years ago to solicit in front of the Convention Center.
I
On fuesday, April 21,2015 4:04 plvl, "Nicassio, Jean,, wrote:
https://us-m96.mail.yahoo.com/reo/launch?.rand=c4cushe5l0.1 S
RAD PDFHighlight
RAD PDFHighlight
RAD PDFHighlight
RAD PDFHighlight
RAD PDFHighlight
RAD PDFHighlight
RAD PDFHighlight
-
W1512015 Print-fPlease let me introduce myself. My name is Jean Nicassio and I am the manager for Downtown Disney. Loralie is one of my team members
The Esplanade is unfortunately not a part of Downtown Disney. lt is considered a corridor to the theme parks.
Downtown Disney is a commercial property with benches and areas designed for our guests to sit and congregate.
We welcome you to our property and will walk the designated areas if you'd like to ensure you are pleased with your placement.
Please feel free to reach out to me directlv.
Thank you,
Jean
Dear Ms. Lampley,
We would also like to solicit on the Esplanade and near the foot traffic there. Can you attached the rules and regulations for hand billing leafletsinside the Esplanade.
-
https://us-m 96.mail.yahoo.comlreoil aunrch?.rand* c4cu5he501 S
RAD PDFHighlight
RAD PDFHighlight
