First Amendment claim suffers Chernobyl-like fate before 7th Circuit

by Allison Arends

Illinois Dunesland Preservation Society v. Illinois Department of Natural Resources
(Federal 7th Circuit Court of Appeals, October 14th, 2009)
(For a map of the geographic boundaries of the federal courts of appeals click here)

Park authority’s refusal to allow plaintiff’s pamphlet in display racks did not cut off alternative avenues for plaintiff’s message.

Illinois Beach State Park is a large state park abutting Lake Michigan in northeastern Illinois, with two million visitors a year.  State officials and the state agency that operates the park refused to allow the plaintiff to place its two-page pamphlet in the park’s display racks.  The pamphlet recommended “commonsense approaches… for minimizing exposure to you and your family from asbestos contamination while at the beaches of Illinois Beach State Park.” Asbestos was known to have contaminated the beaches of the park from a nearby site on which Johns-Manville had once manufactured building materials.  The pamphlet goes on to describe the specific instances where asbestos could be an issue when visiting the park as a result of the sand, and also describes how to reduce the chances of being affected. The Beach’s display racks contain a variety of brochures selected by park officials, and up until 2004, included a “fact sheet” about the asbestos in the park. The park authorities do not dispute the fact that the park does in fact contain asbestos fibers, but recent studies have found that the levels present in the beach sand were not enough to affect human health. The plaintiff, a non-profit corporation that helped create and continues to support the park filed suit against state officials and the state agency that operates the park, charging infringement of free speech for refusal to allow the pamphlets in the display racks. 

The author of the court’s opinion, Justice Richard Posner, first observd that “lawyers in federal appeals invariably frame their arguments in language from Supreme Court opinions.  In this case which involves a First Amendment issue the lawyers have treated us to a barrage of unhelpful First Amendment jargon.” The “jargon” described the different kinds of public forums and their different standards for limitations on private speech.  A “traditional public forum” is a street or park, or some other type of public property that has long been used for expressive activity.  A “designated public forum,” such as a public theater, is one which was created specifically for expressive activity by private persons. The third category-the “non-public forum”- is made up of government-owned facilities intended for a specific purpose, and allows the government to limit expression to only that which furthers the purpose for which it was created. Justice Posner failed to see how “forum analysis” was helpful in deciding most First Amendment cases.  “The constant [among all these cases] is that regulation is not to be used as a weapon to stifle speech.”

Plaintiff argued that the park falls within the definition of a “traditional public forum” and therefore private speech can only be limited by very narrow and specific circumstances; however, the court determined that forum analysis did not address the issue of the display racks.

Which brings us to the compelling practical objections to the plaintiff’s position. Display racks crammed with brochures and pamphlets are omnipresent in public property in the United States, not only parks and other areas of public recreation but also turnpike service plazas and the lobbies of government buildings. If the plaintiff’s conception of freedom of speech prevailed, every clerk responsible for stocking such a display rack would face a potential First Amendment suit by an interest group that wanted to influence government action or public opinion.

The defendant’s argued that the public forum analysis does not apply because this case is an issue of “government expression” and therefore they have a right to restrict the plaintiff’s “frightening” pamphlet because the selection of pamphlets in the park is a “vehicle of the government’s expression,” and to allow the pamphlet would cause visitors to, “flee the Park” contradicting the message the Park was intending to make. The pamphlets chosen for the racks are designed to attract people to the park, and to Illinois. “The choice of the materials conveys a message that is contradicted by the plaintiff’s pamphlet.” 

The message of the publications in the display racks is: come to the park and have a great time on the sandy beaches. The message of the plaintiff’s pamphlet is: you think you’re in a nice park but really you’re in Chernobyl, so if you’re dumb enough to come here be sure not to step on the sand because that would disturb or agitate it, and to scrub under your fingernails as soon as you get home.

The court found that denying the plaintiff’s access to the display racks did not cut off other avenues of speech at the Park. Because no special permit or license is required to hand out pamphlets to Park visitors, and therefore alternative avenues of expression were still open to the plaintiffs, the court affirmed there was not violation of the plaintiff’s First Amendment rights.