7th Circuit: Group can’t display pamphlets at Ill. state park

Wednesday, October 28, 2009

A nonprofit group concerned about the dangers of asbestos exposure at an Illinois state park does not have a First Amendment right to have its pamphlet displayed in park racks, a federal appeals court has ruled.

The Illinois Dunesland Preservation Society, which helped to create and still supports Illinois Beach State Park in Zion, filed suit in federal court against the Illinois Department of Natural Resources and various officials after they refused to place the group’s pamphlet in display racks at various buildings in the park.

The pamphlet, titled “Steps to Minimize Asbestos Exposure at the Beach,” gave advice to beach visitors about minimizing exposure and explained why asbestos is present at the beach. The pamphlet also states that a federal Superfund asbestos cleanup site was located next to part of the beach.

A federal judge dismissed the lawsuit against all the defendants and IDPS appealed to the 7th U.S. Circuit Court of Appeals. On Oct. 14, a three-judge panel of the 7th Circuit affirmed the lower court ruling in Illinois Dunesland Preservation Society v. Illinois Department of Natural Resources.

Judge Richard Posner wrote for the panel that “the beaches do contain asbestos fibers, possibly as a result” of the park’s proximity to a plant that once manufactured building materials containing asbestos and the fact that some beachfront homes had contained asbestos. However, Posner cited studies by federal and state agencies that he said “have not found levels of asbestos sufficient to menace human health.”

IDPS argued that the park’s display racks were a forum open to various viewpoints and that park officials committed impermissible content and viewpoint discrimination by denying the group’s expression.

However, Posner wrote that “the lawyers have treated us to a barrage of unhelpful First Amendment jargon,” including the public-forum doctrine, which he criticized: “Indeed it is rather difficult to see what work ‘forum analysis’ in general does.”

To Posner, “compelling practical objections” warranted a rejection of the IDPS lawsuit. He invoked the government-speech doctrine for the principle that government officials sometimes can display their own expression without being forced to display private expression. But he based his ruling on what he termed “practical considerations.” For example, Posner wrote that if park officials were forced to display this “frightening” pamphlet, “the display rack would soon be crowded with angry pamphlets by environmental activists, and rejoinders by park and other state officials.”

In colorful language, Posner described the practical effect that the official park publications and the IDPS pamphlets would have:

“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 possible.”

Posner warned that if IDSP had a First Amendment right to force the government to display its pamphlets, then “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.”

At the end of the opinion Posner wrote that park officials “cannot impose unreasonable barriers to using open public space to convey ideas and opinions, but there has been no showing that they’ve tried to do this.”

“We anticipate that we will appeal this decision,” said Paul A. Kakuris, president of the IDPS. “The panel gave us short shrift not only to the case but also to the millions of people who are unwittingly exposed to the inhalation of microscopic fibers of asbestos at the beach. “Judge Posner shut down our most viable way of communicating important information to the public,” Kakuris added. “The panel didn’t look at the dynamics and the geographic layout of the park.”

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