Activists' free speech rights violated, judge rules -
SULLIVAN ARENA: Court dismisses charges against leaflet-doling pair.
Anchorage Daily News (AK) November 6, 2004

http://www.adn.com/alaska/story/5750596p-5684764c.html

SHEILA TOOMEY

Charges against two local activists who were arrested for handing out flyers in front of Sullivan Arena have been dismissed.

District Judge Brian Clark concluded that arena security and Anchorage police violated the free speech rights of Karen Bretz and Uwe Kalenka by arresting them last April because promoters of the 2003 Great Alaska Sportsman's Show didn't want them leafleting people on a sidewalk in front of the arena entrance, court documents say.

The leaflets endorsed Kalenka's candidacy for the Chugach Electric Association board of directors.

There is no allegation that Bretz or Kalenka were behaving badly, other than arguing they had a right to be there, refusing to give their names and refusing to leave when asked to. They claimed they were polite to everyone.

They were each charged with one count of trespassing.

In court, the municipality argued that leasing the arena to a private promoter turns it into a private building. Rules about the government allowing reasonable public expression on government property don't apply, they said.

Clark disagreed.

First of all, he said, the municipality owns the arena and maintains control at all times over its policies and use. SMG of Alaska Inc., the company that handles day-to-day operation of the arena for the city, is merely a contractor. Private property rights don't kick in, Clark said.

But even if it is city owned, governments can limit "expressive activity" under some conditions, says Clark's decision, signed on Oct. 29. For instance, government-owned property that is run purely as a profit-making enterprise is one example where the public forum function can be curtailed.

However, by law, the Sullivan Arena is not expected to be a profit-making enterprise. It was designed only to be self-sufficient, and to operate "for the broadest public benefit," Clark concluded, citing city ordinances.

"(I)t caters to the myriad of tastes and interests that make up the population of the Municipality of Anchorage," the judge wrote. "Its purpose resembles the purpose of a municipal theatre, dedicated for performances for the local community."

That makes it a designated public forum, Clark concluded. Restrictions on free expression must therefore be precise and clear, to eliminate arbitrary censorship.

The city's policy of allowing "the whims" of promoters using Sullivan Arena to decide what free expression is allowed on the sidewalk outside "is in fact no policy at all," Clark wrote. "It gives unfettered control to a promoter using a public Arena with the full permission of the Municipality to eject anyone who is peacefully exercising their constitutional rights."

And that is unacceptable, he ruled.

Clark dismissed the trespassing charges with prejudice, which means Bretz and Kalenka cannot be re-charged for the cited offense unless a higher court overrules him.

Bretz said Thursday that the ruling was "a relief."

Assistant municipal prosecutor John McConnaughy said Friday that the city has not decided if it will appeal the decision.

Daily News reporter Sheila Toomey can be reached at stoomey@adn.com.