Petition for Writ of Certiorari — Illinois Dunesland Preservation Society v. Illinois Department of Natural Resources

Supreme Court, U.S

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OFFICE OF THE CLERK

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>upreme Court of the Ginited State:

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| Appea ipply tne for nm analySsi daoctn

termine tne 1 it of acce ft the petitioner ft

nphiet rat I tate park in which the literati

privat Deak Wa ql splays qd if of interest

ern to park visitors was erroneous and in conf]

th the ] iSs1i0on or the pupreme Court ucn

rneliu NAACP Legal Defense and Educati

§ (1985 and Perry Educati

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onflict e decisi f the Supren

OF PARTIES

ippellant in the proceeding in the Sevent

rcuit was Illinois Dunesland Preservation pocicty

n Illinois not-for-profit corporation. The appellees in

he proceeding were Jonathan Furr, Stan Yonkauski

m Hickmann, Beverly Ascaridis, Tony Mayville, and

e Bauer, agents of the Illinois Department of

atural Resources, and Tom Schafer and Jennifer

vis, agents of the [lhnois Department of Publi

in both their official capacit ind in then

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DAC

RULE 29.6 CORPORAT I

DISCLOSURE STATEMEN'

er, Illinois Dunesland Preservation Societ

Illinois not-for-profit corporation. it issues no

[It has no parent corporation. No publicly held

ership interest ineslan

he Decision Of ‘he Seventh Circu ‘

With The Decisions Of The Supreme

Regarding The Forum Analysis Doctri

4

f Appeals Misapprehend

‘orum Analysis Implications Of

terature Display Practices At The Pa:

Court Of Appeals Avoids Fo!

Analysis By Using Inaccurate Informatio:

Outside The Record Regarding The Risk:

Park Asbestos Contamination

‘

ev Circuit is reports + Od

OY d reproduced in the append»

of the Seventh Circuit denying the petit

irin? and renearing er ban also re ports i tt

1 is reproduced in the appendix. The memora:

ind order of the United States District (¢

Northern District of Illinois, Eastern Di,

orted at 587 F_Supp.2d 101

ATEMENT OF THE BA

FOR JURISDICTION

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wn

red in rit

tate de prive any person Ol! life, liberty,

property, without due process of law; nor deny

to any person within its jurisdiction the equ

rotection of the law

STATEMENT OF THE CASI!

In the late 1990s. asbestos appeared at the beach at

[llinois Beach State Park (IBSP). In February, 2000,

the office of the Illinois Attorney General informed thx

Illinois Department of Natural Resources (IDNR), the

[llinois Department of Public Health (IDPH), and the

Illinois Environmental Protection Agency (IEPA) that

in investigation to determine the source and

responsible parties for the asbestos containing

material (ACM) found at IBSP indicated that there

were five responsible parties, including IDNR and

Johns-Manville Corporation

In March, 2000, IDPH, in cooperation with thi

federal Agency for Toxic Substances and Diseases

tegistry (ATSDR), released a written public health

assessment regarding asbestos contamination at the

Park. The assessment provided that IDPH, IDNR, and

IEPA jointly develop a fact sheet to communicate

information regarding asbestos containing material at

IBSP, to be available in literature racks and kiosks 11

heavily used areas of the Park

Pursuant to the assessment, a multi-fold

information sheet was produced and was supplied to

the Park. In the early 2000s, IDNR provided a

separate plexiglass display and the tri-fold asbestos

brochure. The brochure went out of print, supply ran

ut. and Bob Grosso (Gros 30), Superintendent of the

Park, photocopied it for a time, but had stopped

copying it by 2004. Grosso told the Dunesland Society

that the printing costs for the asbestos brochure were

not allocated in the budgets; that Grosso was told that

there was not moncy to display and have reprints; that

the brochure itself did not keep up with the times and

didn’t truthfully depict the exposure that the publi

would have at the beach, which by then included

microscopic asbestos; and that there was no brochure

n the racks. IDNR had no policy with respect to the

asbestos contamination at the Park, or the adjacent

Manville superfund site and possible contamination of

the Park from there, and no policy relating to signa

the Park concerning asbesto

Dunesiand Pamphlet Requt

On August 31, 2004, Dunesland made a written

request to Grosso that IDNR display “public service

flyers relating to asbestos and protecting the health

and safety of the public” at the Park, “in the same

areas where other informational and cautionary flyers

and brochures are displayed”, including the office, the

interpretive center, and the lodge. The beaches contain

amphibole asbestos, hundreds of times more toxic than

chrysotile, which is also there, and tremolite. The

informational purpose of the flyer was to make sure

people understood what they could be exposed to; it

was cautionary and gave tips to the publi

Information about asbestos contamination at the Park

r the health risks of asbestos was absolutely of

nterest to visitors to the Park

Grosso sent Dunesland a letter dated September

04, which stated: “I have been instructed by IDNR

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events. The content of the pamphlet racks and Park

office counter was fluid, there could be more or less

from time to time, with seasonal changes as well. On

September 1, 2004, Grosso listed the following

pamphlets that were displayed at that time: Bass Pro

Shop, Chain-o-Lakes, Chicago Visitor transit map, E

Coli, Emerald Ash Borer, Fire, Great Lakes Naval

Museum, Gurnee Mills shopping center, Horizons

Newsletter Lake County Forest Preserve, [BSP

brochure, IBSP site packet, Illinois State Park

Magazine, Lake County Recreation Guide, Lake

County Visitor Map Guide, Lake Michigan statistics,

Lambs Farm, Metra train schedule, Places for Pets

Resort brochure, 51x Flags Great America amusement

park, State of Illinois road map, West Nile Viru:

WGTD Bike Trail Guide.

[DNR allowed Dunesland to display informational

brochures and handouts. Grosso and Julie thought

that Dunesland literature was of interest to Park

visitors, and displayed for years newsletters and

membership applications which Dunesland provided

They also displayed the Dunesland flower book

‘he Asbestos Issue

In August, 2004, asbestos contamination at th

Park was a hot issue, with articles in the papers about

it and sweeps at the Park. IDNR people said that

asbestos wasn’t a problem, or minimized it, while those

at the Park saw asbestos and heard about microscopic

asbestos, and were concerned. The IDNR people

wanted Grosso to call them about asbestos matters,

they wanted to know if newspapers called and wanted

to talk about the asbestos at the beach. Julie felt that

IDNR thought it wasn’t a big issue, but she felt there

REASONS FOR ALLOWANCE OF THE WRIT

The Seventh Circuit decision of October 14, 2009,

conflicts with the decisions of the United States

Supreme Court in Cornelius v. NAACP Legal Defense

and Educational Fund, Inc., 473 U.S. 788 (1985), and

Perry Education Assn. v. Perry Local Educators’ Assn..,

460 U.S. 37 (1983), regarding the application of the

doctrine of forum analysis; with Pleasant Grove City v.

Summum, 129 S.Ct. 1125 (2009), regarding the

determination of government speech; and with the

decision of the Seventh Circuit Court of Appeals in

Choose Life Illinois, Inc. v. White, 547 F.3d 853 (7 Cir.

2008), regarding the application of forum analysis and

the determination of government speech. Review by

the Supreme Court is therefore necessary to resolve

those conflicts and to secure and maintain uniformity

of the decisions of those courts.

|. THE DECISION OF THE SEVENTH CIRCUIT

CONFLICTS WITH THE DECISIONS OF THE

SUPREME COURT REGARDING THE

FORUM ANALYSIS DOCTRINE

Che Seventh Circuit opinion is dismissive (at 7a) of

the forum analysis doctrine articulated by the

Supreme Court in Perry and Cornelius and other

decisions, such as Jnternational Soctety for Krishna

Consciousness v. Lee, 505 U.S. 672 (1992), and

Rosenberger v. Rector and Visitors of the University of

Virginia, 515 U.S. 819 (1995), and consistently applied

by this Court: “Indeed it is rather difficult to see what

work ‘forum analysis’ in general does.” Although the

court of appeals finds (at 7a-8a) that “every public site

of private expression has to be regulated to some

xtent”, that “the character of permitted regulation

will vary with differences among the different types of

site”, and that “[t]he constant...is that regulation is not

to be used as a weapon to stifle speech”, it sees no

“relevant difference” between recognized speech

forums and other instrumentalities of expression

where “the management of a government facility has

to decide which...work will be allowed to be exhibited,

in view of the site’s limited capacity.”

Yet, the recent Seventh Circuit opinion in Choose

Life Illinois v. White, 547 F.3d 853 (7 Cir. 2008),

follows the analytical approach required by the

Supreme Court, in the context of specialty license

plates issued by the State of Illinois. The State argued

there that the messages on specialty license plates

were the government’s own speech, not private or a

mixture, and therefore no First Amendment rights

were implicated. The court rejected that view, and held

that specialty license plates “implicate the speech

rights of private speakers, not the government-speech

doctrine. This triggers First Amendment ‘forum’

analysis, and we conclude specialty plates are a

nonpublic forum. Illinois may not discriminate on the

basis of viewpoint, but it may control access to the

forum based on the content of a proposed message

provided that any content-based restrictions are

reasonable.” 547 F.3d at 855. The court explained:

Messages on specialty license plates cannot be

haracterized as the government’s speech. Like

many states, Illinois invites private civic and

charitable organizations to place their messages

on specialty license plates....Editorial control

over the message is shared between the

sponsoring organization and the State; the

organization typically develops the plate design,

1]

subject to the State’s authority to modify it. The

most obvious speakers in the specialty-plate

context are the individual vehicle owners who

choose to display the specialty plates and the

sponsoring organizations whose logos or

messages are depicted on the plates. The State

can reasonably be viewed as having approved

the message; it is commonly understood that

specialty license plates require State

authorization |T}here are enough elements of

private speech here to rule out the government-

speech doctrine....Because private-speech rights

are implicated, we proceed to First Amendment

forum analysis.” 547 F.3d at 863-64.

Here, where the facts indicate that a speech forum

has been opened in the pamphlet racks and private

speech is allowed if of interest or concern to Park

visitors, the Dunesland message, like the messages of

other private speakers in the pamphlet racks,

originates with the speaker; the government exercises

no editorial contro] over the messages; and the private

party communicates the message. This should have

triggered forum analysis.

A. The Court Of Appeals Misapprehends The

Forum Analysis Implications Of The

Literature Display Practices At The Park

The Seventh Circuit describes (at 3a) the display of

literature in the Park’s pamphlet racks: (1) “The park’s

numerous display racks contain a variety of brochures

and flyers selected by park officials.”; (2) “Some of

these are produced by the park itself and are guides to

the park or lists of nearby resorts.”; (3) “Some are

maps; some, government warning about pathogens.”;

12

and (4) “There are also brochures advertising such

draws in the area as...sights that might interest

tourists.” In fact, the brochures and flyers displayed

are not “selected” by park officials, as described above;

there are two IDNR-generated pamphlets; there are

two health and safety brochures (e. coli and West Nile

virus); and there are numerous pamphlets from the

public relating to matters that the site staff thought

would be of interest or concern to Park visitors.

IDNR management testified that information about

asbestos contamination at the Park or the health risks

of asbestos was absolutely of interest to visitors to the

Park. IDNR management scrambled to bar the

Dunesland pamphlet and put out a press release

countering what they perceived as the Dunesland

message, and decided to attempt to develop a new

brochure

The opinion states (at 9a): “The materials chosen

for the display racks...are designed to attract people to

the park...” That is plainly inconsistent with the

earlier acknowledgment that “some” brochures in the

racks are “warnings about pathogens”. Health and

safety brochures, which warn about e. colt and West

Nile virus, are not different from a flier warning about

inhaling microscopic asbestos. Further, the materials

in the racks are not “chosen”, they are allowed.

Attracting people to the Park was not the criterion

used by the site staff in displaying pamphlets. They

allowed pamphlets that they thought would be of

interest or concern to Park visitors. Indeed, the

materials on the racks cannot “attract people to the

park”. The materials are there for visitors, people who

are already at the Park.

The pamphlet areas are simply a government

sponsored forum in which private citizens speak.

Control of access and exercise of discretion are forum

attributes. Control over access is common to both a

nonpublic (selective access for individual speakers in

a class) and designated public (general access for a

class of speakers) forum. If the pamphlet racks were

not a forum, there would be no access to control.

Access by private speakers makes property a speech

forum, and control] over access is inherent therein.

Cornelius, at 799-800 (“the extent to which the

government can control access depends on the nature

of the relevant forum”). Control over access simply

recognizes that a forum has limits. “Control over

access to a nonpublic forum” must be reasonable in

light of the purpose served by the forum and viewpoint

neutral. Cornelius, at 806.

Similarly, the exercise of discretion is an aspect of

the maintenance of a forum. IDNR staff simply

exercised a regulatory/administrative discretion to

allow general access for a class of speakers, or selective

access for individual speakers for whom eligibility for

access was reserved. The “common sense and

discretion” which the trial court found the IDNR staff

employed to display pamphlets was simply the

discretion that the government employs in reserving

the forum for its intended purposes (designated public

forum), or exercising control over individual access in

light of the purpose served by the forum (nonpublic

forum). The discretion exercised by the Park

superintendent, who wanted to display the Dunesland

pamphlet but was instructed to deny it by IDNR

management, and his assistant, was a regulatory, not

a communicative, discretion

KB. The Court Of Appeals Avoids Forum

Analysis By Using Inaccurate Information

Outside The Record Regarding The Risks

Of Park Asbestos Contamination

The plain message of the Dunesland safety

pamphlet is: there is microscopic as well as chunk

asbestos contamination at the Park, so you should

follow these government-recommended tips_ to

minimize your exposure to asbestos. The Seventh

Circuit opinion, however, disparagingly describes and

characterizes the pamphlet, not simply to contrast it

with the “anodyne’” asbestos “fact sheet” that the State

had at one time displayed at the Park, but to challengs

the accuracy of the pamphlet, although that issue was

removed from the case by the trial court’s discovery

ruling and application of the doctrine of judicia!

estoppel, thereby also barring the demonstration by

Dunesland that certain studies are not scientificall

valid or accurate

The disparaging characterization of the Dunesland

afety pamphlet is both irrelevant to the issues in th:

case and inaccurate in the context of the asbesto:

contamination in the Park. The panel opinion make:

the following hyperbolic and sarcastic descriptions of

the Dunesland pamphlet: (1) “The defendants refused

to display in the display racks in various buildings in

the park a scary two-page pamphlet that the plaintiff

had prepared.” (at 2a); “It [‘a “fact sheet”, which is in

the record, about asbestos in the park that had been

prepared by state environmental and health agencies

\((4a-5a)] is as anodyne as the plaintiffs pamphlet i

alarming.” (at 5a); (3) “the plaintiff sought access to

the racks for its frightening pamphlet” (at 9a); (4)

“Most people who read and believed the plaintiff

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Dunesland supplied websites of various government

sources in support of this proposition in its petition for

rehearing before the court of appeals.

Il. THE DECISION OF THE SEVENTH CIRCUIT

CONFLICTS WITH DECISIONS REGARDING

GOVERNMENT SPEECH

The Seventh Circuit’s construct, that there is no

“relevant difference” between recognized speech

forums and other instrumentalities of expression

where government “management” is involved, allows

the court to reason (at 9a-10a) — applying its reading

of Pleasant Grove City v. Summum, 129 S.Ct. 1125

(2009), to its erroneous view of the facts here — that

the literature display racks at the Park are

government speech. This paradigmatic shift in the

application of the First Amendment means that what

were channels of private speech, though regulated and

limited by appropriate restrictions, have become

instrumentalities of government speech, limited to

government expressive activity and government

messages. Summum does not countenance such a

shift.

,

There, the Supreme Cuurt held that by allowing the

placement of donated permanent monuments in a

public park, the city was exercising a form of

government speech not subject to scrutiny under the

First Amendment. The disagreement centered on the

nature of the city’s conduct and whether it was

engaging in its own expressive conduct, or providing a

forum for private speech. “If petitioners were engaging

in their own expressive conduct, then the Free Speech

Clause has no application....While government speech

is not restricted by the Free Speech Clause, the

t na a tree nana t reeul

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private speech on government property.” 129 S.Ct

1131, 11382. The Court found that “|plermanent

monuments displayed on public property typically

represent government speech.” /d.; “The monument:

that are accepted...arc meant to convey and have th

effect of conveying a government message, and the;

thus constitute government speech.” Id. at 1134. The

Court explained that the monuments in the city’s par

‘presented government speech

iT The t ity decided to a cept LNOSE ionat

ind to display them in the Park. Responden

loes not claim that the City ever opened up the

Park for the placement of whatever permanen

monuments might be offered by private donor

Rather, the City has “effectively controlled” th

nessages sent by the monuments in the Park by

xercising “final approval authority” over thei

election....The City has_ selected’ tho

nonuments that it wants to display for ths

purpose of presenting the image of the City that

t wishes to project to all who frequent the Park

has taken ownership of most of thi

nonuments in the Park,...and the City has n

expressly set forth the criteria it will us

making future selection 129 S.Ct. at 1134

Here, the court of appeals construct i yovernmes

1essage in the pamphlet racks where one does mn

cist: “The choice of materials conveys a message that

contradicted by the plaintiffs pamphlet.” (at 9a)

[he message of the publications in the display rack:

come to the park and have a great time on the

(at 9a). The IDNR staff displayed

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APPENDIX

IN THE

rED STATES COURT OF APPI

FOR THE SEVENTH CIRCUIT

Northern District «

Eastern Division

Elaine E. Buck!

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POSNER, Circuit Judge. Illinois Beach State Park

is a large state park abutting Lake Michigan in

northeastern I\linois; it attracts upward of two million

visitors in some years. The plaintiff, a nonprofit

corporation that helped to create and continues to

support the park, filed this suit under 42 U.S.C. § 1983

against state officials involved in its management and

the state agency that operates the park, charging

infringement of free speech. The agency was properly

dismissed because states are not “persons” within the

meaning of section 1983 and so cannot be sued under

that section. Will v. Michigan Dep't of State Police, 491

U.S. 58, 65-66 (1989). And because damages suits

against state officials in their official capacity are

deemed suits against the state, the claims against the

defendant officials in their official capacity for

declaratory relief were also properly dismissed because

the plaintiffs only purpose in seeking such relief in

this case was to establish liability for the past

infringement ofits rights so as to entitle it to damages.

Green v. Mansour, 474 U.S. 64, 73 (1985). Those

officials are also sued in their personal capacity,

however, and in that capacity are “persons” within the

meaning of section 1983. But the district judge granted

summary judgment in their favor; and so the entire

suit was dismissed.

The defendants refused to display in the display

racks in various buildings in the parka ‘cary two-page

pamphlet that the plaintiff had prepared. Entitled

“Tips for Avoiding Asbestos Contamination at Illinois

Beach State Park,” the pamphlet recommends

“commonsense approaches... for minimizing exposure

to you and your family from asbestos contamination

while at the beaches of Illinois Beach State Park.” It

warns that “many pieces of asbestos have been

3a

tumbling along the shoreline for years,” that

“microscopic asbestos can be released from the sand

when agitated,” and that “disturbing the sand can

cause asbestos to become airborne.” And _ since

“asbestos fibers can be found wherever beach sand can

go,” the reader is advised to “wash your whole body

including hair, ears, and under fingernails. Pets

should also be washed down prior to leaving the beach

.... Take care when shaking out towels and blankets

that may have come into contact with sand. Remove all

beach clothing prior to entering your car or home.

Launder beach clothing, blankets, and_ towels

separately. Store shoes and other hard to clean items

outside of the home.”

The park’s numerous display racks contain a

variety of brochures and flyers selected by park

officials. Some of these are produced by the park itself

and are guides to the park or lists of nearby resorts.

Some are maps; some, government warnings about

pathogens. There are also brochures advertising such

draws in the area as an amusement park, a mall, a

petting zoo, a store that sells supplies for fishermen,

and other sites that might interest tourists.

The beaches do contain asbestos fibers, possibly as

a result of the park’s adjacency to a site on which

Johns-Manville once manufactured building materials

containing asbestos; another potential source is

beachfront homes that contained asbestos and long ago

washed into the lake. But studies of the beaches by

federal and state agencies have not found levels of

asbestos sufficient to menace human health. U.S.

Dept. of Health & Human Services, Agency for Toxic

Substances and Disease Registry, “Health

Consultation, Exposure Investigation Report on

4a

Illinois Beach State Park” (Oct. 19, 2007),

www.atsdr.cdc.gov/HAC/pha/IllinoisBeachStatePark/

IllinoisBeachStatePark(EI)DHC101907.pdf; Illinois

Dept. of Public Health, “Public Health Assessment,

Asbestos Contamination at Illinois Beach State Park”

(May 23, 2000), www.atsdr.cde.gov/HAC/pha/illinios

beach/ibp_toc.html; see also University of Illinois,

Yenter of Excellence in Environmental Health,

“Illinois Beach State Park (IBSP): Determination of

Asbestos Contamination in Beach Nourishment Sand”

(June 20, 2006), www.uic.edu/sph/glakes/coe/IBSP.

Sand_Final_Report1_wo_App.pdf. (All these websites

were visited on September 21, 2009.) The park’s staff

does try, however, to remove from the beaches

material that contains or might contain asbestos.

The asbestos at the Illhnois Beach State Park has

attracted the attention of the media, e.g., Carol Marin

& Don Moseley, “It’s Not Child’s Play; Material

Containing Carcinogen Found This Week in Sand

Castle at Illinois Beach State Park,” Chicago

Sun-Times, Aug. 2, 2007, p. 3 (“material containing

asbestos, a known carcinogen, was found this week

wedged in one of the most innocent symbols of

summer: a sand castle at the water’s edge of Illinois

Beach State Park”); Dan Rozek, “More Asbestos Found

at Zion Park,” Chicago Sun-Times, July 2, 2004, p. 21;

Dave McKinney, “State Agency Shuts Out

Environmental Watchdog at Nature Sanctuary;

Dunesland Group Recently Found Asbestos in

Preserve,” Chicago Sun-Times, July 31, 2003, p. 18;

Douglas Holt, “State to Investigate Safety at Zion

Park; Asbestos Fears Fuel Madigan Action,” Chicago

Tribune, July 3, 2003, p. 1. And until 2004 the racks

displayed a “fact sheet,” which is in the record, about

asbestos in the park that had been prepared by state

environmental and health agencies. But that year the

upply of copies of the fact shect ran out. The

defendants say in their brief that they prepared and

displayed new fact sheets in 2005 and again in 2006,

but these are not in the record and we do not know

what their content is or was. The fact sheet that is in

the record acknowledged the presence of low levels of

asbestos in the park’s beaches but denied that they

were a health hazard. It is as anodyne as the plaintiffs

pamphlet is alarming

Lawyers in federal appeals invariably frame their

irguments in language taken from Supreme Court

opinions. In this case, which involves a_ First

Amendment issue, the lawyers have treated us to

barrage of unhelpful First Amendment jargon

A “forum” in that jargon is a piece of public

property usable for expressive activity by members of

the public (“private speech,” in forum jargon). The

Supreme Court distinguishes a “traditional public

forum” from a “designated public forum” and both from

a “nonpublic forum.” E.g., Pleasant Grove City v

Summum, 129 S. Ct. 1125, 1132 (2009); Good News

Club v. Milford Central School, 533 U.S. 98, 106-07

(2001); International Society for Krishna Conscious

ness, Inc. v. Lee, 505 U.S. 672, 678-79 (1992); Perry

Education Ass'n v. Perry Local Educators’ Ass’n, 460

3/7, 45-46 (1983)

A traditional public forum is a street or park,

ome other type of public property that like a street or

park has long (“time out of mind,” as some cases put it,

or “from time immemorial,” as others say) been used

for expressive activity, such as marches and

eafletting. A designated public forum, illustrated by

oa

public theater, Southeastern Promotions, Lid. |

Conrad, 420 U.S. 546 (1975); Gilles v. Blanchard, 477

F.3d 466, 473 (7th Cir. 2007); Cinevision Corp. v. City

of Burbank, 745 F.2d 560, 565, 570-71 (9th Cir. 1984),

is a facility that the government has created to be, or

has subsequently opened for use as, a site for

expressive activity by private persons. Usually, as in

the case of a public theater, it is available only for

specified forms of private expressive activity: plays, in

the case of a theater, rather than political speeches

Such limitations are permitted; the public owner of a

theater need not throw it open for political rallies even

though it is physically capable of being so used. But

the owner is not allowed to discriminate among the

plays performed in the theater on the basis of the ideas

or opinions that the plays express, as appeared to have

happened in the Southeastern Promotions case

The third category—the “nonpublic forum’

consists of government-owned facilities lke the

Justice Department’s auditorium that could be and

sometimes are used for private expressive activities

but are not primarily intended for such use. The

government can limit private expression in such a

facility to expression that furthers the purpose for

which the facility was created. E.g., Arkansas

Educational Television Comm’n v. Forbes, 523 U.S.

666, 677-80 (1998); Cornelius v. NAACP Legal Defense

& EKducational Fund, Inc., 473 U.S. 788, 804-806

(1985)

Some decisions recognize a fourth category, a

variant of the second, variously called a “limited

designated public forum” (what Shakespeare’s

Polonius would have called “a vile phrase”), a “limited

public forum,” or a “limited forum.” Pleasant Grove

City v. Summum, supra, 129 S. Ct. at 1132; Perry

Education Ass'n v. Perry Local Educators’ Ass’n, supra

460 U.S. at 46n. 7; Good News Club v. Milford Central

School, supra, 533 U.S. at 106-07; Gilles v. Blanchard,

supra, 477 F.3d 466, 473-74; Nurre v. Whitehead, 2009

WL 2857196, at *4 (9th Cir. Sept. 8, 2009); Stetnburg

vu. Chesterfield County Planning Comm’n, 527 F.3d

377, 384-85 (4th Cir. 2008); Bowman v. White, 444

F.3d 967, 975-76 (8th Cir. 2006); Husain v. Springer,

494 F.3d 108, 127-28 (2d Cir. 2007). The terms denote

a public facility limited to the discussion of certain

subjects or reserved for some types or classes of

speaker. In Gilles it was an open space in a state

university in which members of the university

community and their guests—but not uninvited

outsiders—were allowed to give talks

[tis difficult to see what difference there is between

such restrictions and the selection that the director of

a state theater has to make among theater group:

clamoring for access to the stage. Indeed it is rather

difficult to see what work “forum analysis” in genera!

does. It is obvious both that every public site of private

expression has to be regulated to some extent and that

the character of permitted regulation will vary with

the differences among the different types of site. Street

demonstrations have to be regulated to prevent

blocking traffic, and the use of a state theater has to be

regulated to ration the use of a limited facility and

maintain quality, and obviously the regulations will be

very different. The constant (applicable even to

nonpublic forums, Cornelius v. NAACP Legal Defense

& Educational Fund, Inc., supra, 473 U.S. at 800, 806)

is that regulation is not to be used as a weapon to stifle

speech

The district judge thought that the display racks in

the Illinois Beach State Park are not a public forum

but instead are “a mini-library of resources for the

public, and [the park’s management] necessanly made

‘editorial’ judgments about which materials to

include.” Indeed there are cases that say that “forum

analysis” does not apply to public libraries. United

States v. American Library Ass’n, Inc., 539 U.S. 194,

205 (2003) (plurality opinion); see also People for the

ethical Treatment of Animals, Inc. v. Gittens, 414 F.3d

23, 28 (D.C. Cir. 2005); cf. National Endowment for the

Arts v. Finley, 524 U.S. 569, 586 (1998); Arkansas

Educational Television Comm’n v. Forbes, supra, 523

U.S. at 672-74. But what is the relevant difference

between a state theater (a “designated public forum”)

and a public library, or the public-college art gallery in

Piarowshki v. Illinois Community College Dist.515,'759

F.2d 625 (7th Cir. 1985)? In all three cases the

management of a government facility has to decide

which playwright’s or author’s or artist’s work will be

allowed to be exhibited, in view of the site’s limited

‘apacity

The defendants argue that “forum analysis” is

inapplicable (more precisely, that it does not support

the plaintiffs claim) because the materials in the

display racks are “government speech.” This term

would be readily intelligible if it referred just to

situations in which a government official made a

statement; he would not be required to contradict

himself by including a counterstatement urged by a

private person. See Pleasant Grove City v. Summum,

supra, 129 S. Ct. at 1131; Rosenberger v. Rector &

Visitors of University of Virginia, 515 U.S. 819, 833

(1995); Rust v. Sullivan, 500 U.S. 173, 192-93 (1991);

Keller v. State Bar of California, 496 U.S. 1, 12-13

(1990); Choose Life Illinois, Inc. v. White, 547 F.3d 853,

859 (7th Cir. 2008); Page v. Lexington County School

Dist. One, 531 F.3d 275, 280-81 (4th Cir. 2008). That

would have been the precise situation here had the

park display racks still contained the old fact sheet

when the plaintiff sought access to the racks for its

frightening pamphlet. Most people who read and

believed the plaintiffs pamphlet would flee the park

forthwith. We don’t know what the current fact sheet

says, though it must be less alarmist than the

plaintiff's, or the park officials wouldn’t have excluded

the plaintiffs.

But it wouldn’t matter if there were no government

fact sheet, hence no “government speech” in the literal

sense. For there was none in Summum either, and it

is the leading case on “government speech.” A city had

accepted a Ten Commandments monument donated to

it for display in the city’s park and had turned down a

monument offered to the city by a Gnostic sect. The

Court held that the monument selected by the city was

the vehicle of the city’s expression, just as playing the

national anthem at an official function is government

expression even though the anthem was composed by

a private person.

The materials chosen for the display racks in th

IIinois Beach State Park are designed to attract

people to the park, and more broadly to Illinois tourist

facilities and services. The choice of materials conveys

a message that is contradicted by the plaintiffs

pamphlet. The message of the publications im the

display racks is: come to the park and have a great

time on the sandy beaches. The message of the

plaintiffs 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 scrul

under your fingernails as soon as you get home

The defendants could avoid giving the appearance

of endorsing an opinion that they do not believe by

resurrecting their old fact sheet and placing it next to

the plaintiffs pamphlet in the display racks. But the

mere display of that pamphlet would give it a

legitimacy, a weight, that the defendants are not

obliged to acknowledge; it would suggest that the park

had little confidence in its denial that there was any

real asbestos danger. The display rack would soon be

crowded with angry pamphlets by environmental!

activists, and rejoinders by park and other stats

officials

Which brings us to the compelling practical

objections to the plaintiffs 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. Must every public display rack exhibit on

demand pamphlets advocating nudism, warning that

the world will end in 2012 (see Lawrence E. Joseph,

Apocalypse 2012: An Investigation into Ctvilization’s

End (2007)), reciting the “Seven Aphorisms of

Summum’ (the title of the plaintiffs monument in the

Summum case), or proclaiming the unconstitutionality

of the income tax, together with pamphlets expressing

the opposing view on all these subjects? Or (contrary

to the recent ruling in Sutliffe v. Epping School Dist.,

2009 WL 2973115, at *14 (Ast Cir. Sept. 17, 2009))

must the park on request link its online home page to

every website of an organization or a person who

would like to express an opinion on asbestos fibers or

any other topic that might relate to Illinois Beach

State Park? We can guess what the effect of the

position urged by the plaintiff in this case would be: no

more display racks on public property; no more home

pages for public agencies. See Pleasant Grove City uv

Summum, supra, 1298S. Ct. at 1138; Sutliffe v. Epping

School District, supra, 2009 WL 2973115, at *17 (“the

Town has created a website with the intended purpose

to convey information about itself to its citizens and

others, and it has added a limited number of

hyperlinks to external sites . . . in order to further this

purpose. The public forum doctrine could risk flooding

the Town website with private links, thus making it

impossible for the Town to effectively convey its own

message and defeating the very purpose of the website

and hyperlinks chosen by the Town”). We can avoid

that end by avoiding this beginning

It is not as if the denial of rack space had closed off

the only good avenue that the plaintiffhas for reaching

the patrons of the state park with its message. At

argument the plaintiffs lawyer, repeating an

unelaborated statement in his brief, said his client

would need a “demonstration permit” in order to be

allowed to hand out pamphlets at the entrances to, or

sites within, the park, and implied that such a permit

might be difficult to obtain. One of the park officials

had told him that applying for such a permit “was a

potential avenue for the Dunesland Society to access

the park in a way that might be able to get their

'

Sage ou But he didn’t say it was the only way

ind the district judge noted that the plaintiff “did not

eek to distribute its flyer within the Park by any

means other than inclusion in the display racks.” The

judge added that “no special permit or license is

equired to hand out pamphlets to Park visitors.” The

park authorities cannot impose unreasonable barrier:

to using open public space to convey ideas and opinions

remember that a park is “a traditional public forum”)

ut there has been no showing that they’ve tried tod

4 ed: Wipi x

THE UNITED STATES DISTRICT COt

FOR THE NORTHERN DISTRICT OI!

ILLINOIS EASTERN DIVISION

IEMORANDUM OPINION AND ORDI

I ZUUD, TI lliinois Vunesiand J

Dunesland’) filed a complaint against t

Department of Natural Resourc«s (“IDNR

1 a number of individual claiming that thi

lated [JJunesland Kir ind Fourtes

nam t ment re ip Tt 11S] dis]

l prepar

the Park. Plaintiffs four mplaint seek

icclaratory J idgment _ount nyjunctive rely

ounts LI and III);° and monet

| f . OR? (¢ * |

ive} ] i]

untiffs complaint under Fed. R. Civ. P. 12(b)(6) «

1e grounds that 1) plaintiff has no First Amendmer:

mnt to require the IDNR te display Dunesland

nphlet in the Park’s display racks; 2) both IDNI]

1983 habilityv unde

1 iT apen ir mune fron 8

doctrine of sovereign immunity; and 3) plaintif

ed ules that ertal | Line ndividu

fendaants were ifficiently involved in the alleges

inted defendants’ motion in part, dismissing IDNI

laintifis claims 1

ional violations upport a § 19835 action

the case and dism!1

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mages and declaratory relief against the individ

iendant the I ipaciti

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Illinois Beach State Park is the most visited state

park in Ilhinois. It is located in Lake County, bordering

Lake Michigan on property owned by the State of

Illinois. IDNR is the state agency responsible for

operating the Park. At several locations throughout

the Park, including locations referred to as the Park

Office, the Gate House, the Interpretive Center (or

Nature Center), the Marina, and the Lodge, IDNR

makes available to visitors a vanety of informational

materials, which are displayed in and around racks or

stands designed for this purpose.“ These materials

typically include visitor guides and maps; pamphlets

about other Illinois State Parks; brochures descnbing

local attractions and recreational activities; and health

and safety information

At times relevant to this action, Robert Grosso, who

was the Park’s Site Superintendent, and Julie Brewer,

who worked in the Park Office, were generally

responsible for populating the display racks with

information they deemed of interest to Park visitors

Some of the information they selected came in the mail

from the Illinois Department of Public Health, the

Lake County Health Department, and the United

States Department of Agriculture. Brewer obtained

Wall-mounted plastic display racks were used at the Park Offic:

[he manner in which informational materials were displayed

evidently varied slightly among the display areas identified in the

complaint. These minor differences are immaterial to the

resolution of plaintiffs claims, and references in this opinion to

racks” or “display racks” are intended to encompass all sucl

iriation

l6a

other literature by visiting sources outside the Park,

such as the Lake County Convention Bureau.

IDNR did not have established policies or

guidelines for selecting materials to include in Park

displays. Grosso and Brewer used their discretion and

common sense to select information they thought was

appropriate and useful to Park visitors. Brewer

testified that Grosso had the “ultimate decision” about

which materials were displayed. She further stated

that material “about the state park and about the

general areas, special events” was’ generally

acceptable, but not “garage sales, personal type

things.” In August of 2004, the Park displays

contained, for example, information relating to: a local

amusement park; a nearby shopping center; a Lake

County recreation guide; train schedules to Chicago;

an Illinois Department of Health pamphlet on E-coli;

a Lake County Health Department flyer on Nile Virus;

and a United States Department of Agriculture Pest

Alert on the Emerald Ash Borer, among other

materials

Dunesland is an Illinois non-profit organization,

incorporated in 1950, whose early members were

instrumental in establishing the Park. Dunesland has

supported and contributed to the Park since its

inception, for example by developing educational

programs for use at the Park’s Interpretive Center and

by producing texts describing the flora and fauna

found in the Park. Over the years, IDNR has generally

included these texts, as well as Dunesland’s

newsletters and membership applications among the

informational materials on display for visitors.

l7a

In March of 2000, the Illinois Department of Public

Health, the Illinois Environmental Protection Agency,

and IDNR jointly developed a fact sheet to

communicate information about the presence of

asbestos containing material at the Park. From 2000

through some time before August 2004, this fact sheet

was displayed at the locations identified in the

complaint and at kiosks throughout the Park. At some

point, however, the supply of these asbestos fact shects

ran out, and they were no longer displayed at the Park

by August of 2004.

Dunesland created its own pamphlet (or flyer) with

information on how to avoid asbestos exposure at the

Park. On August 31, 2004, Dunesland sent a request

to Robert Grosso that “IDNR display the public service

flyers relating to asbestos and protecting the health

and safety of the public.” Specifically, Dunesland

sought “to have IDNR display these handout flyers in

the same areas where other informational and

cautionary flyers and brochures are displayed.” Grosso

sent a fax to defendants Ascardis, Hickmann,

Mayville, and Furr for guidance on Dunesland’s

request.

Ilickmann, Furr, Yonkauski, and Mayville

considered Dunesland’s request, then instructed

Grosso to inform Dunesland that IDNR would not

display Dunesland’s asbestos pamphlet in the

requested display areas. Dunesland did not seek to

distribute its flyer within the Park by any means other

than inclusion in the display racks. No special permit

or license is required to hand out pamphlets to Park

visitors.

lSa

[T.

Summary judgment is proper when the record

reflects that there is no genuine dispute as to any

material fact, and that the movant is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c);

Celotex Corp., v. Catrett, 477 U.S. 317, 322 (1986). The

moving party bears the initial burden of identifying

undisputed facts in the record that it believes

demonstrate the absence of a genuine dispute. Scaife

v. Cook County, 446 F.3d 735, 739 (7 Cir. 2006). If the

movant meets this burden, the non-moving party must

then go beyond the pleadings and “set forth specific

facts showing that there is a genuine issue for trial.”

Id. (quoting Vitug v. Multistate Tax Comm'n, 88 F.3d,

506, 512 (7™ Cir. 1996)).

In evaluating the parties’ respective positions, |

must consider the record as a whole and draw all

reasonable inferences in favor of the party opposing

summary judgment. Fisher v. Transco Services

Milwaukee, Inc., 979 F.2d 1239, 1242 (7 Cir. 1992).

Nevertheless, a mere “scintilla of evidence” favoring

the nonmovant is insufficient to defeat summary

judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 252 (1986). If the record “could not lead a rational

trier of fact to find for the non-moving party,” the

non-movant has failed to demonstrate that a genuine

factual dispute exists. Matsushita Elec. Indus. Co.,

Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Local Rule (“L.R.”) 56.1, which requires certain

filings in support of and in opposition to summary

judgment motions, was adopted to assist district courts

in sorting out which facts, if any, are genuinely in

dispute. Portis v. City of Chicago, 510 F.Supp. 461, 463

(N.D. Ibl., 2008). Specifically, L.R. 56.1(aX(3) requires

that the moving party provide a statement of materia!

facts that it contends are undisputed and entitle it to

judgment in its favor. Jd. The opposing party must

provide a concise response admitting or denying each

of the movant’s statements, and in the case of any

disagreement, must cite to specific facts in the record

that it contends demonstrate a genuine dispute. /d.;

L.R. 56.1(b3). The non-movant may also include a

statement of additional facts and supporting citations,

in separate numbered paragraphs, that it contends

defeat summary judgment. Portis, at 463; L.R

56.1(b)(3).

Plaintiffs L.R. 56.1 submissions defy both the letter

ind the spirit of the Rule. In 334 statements of fact

(many of which contain multiple assertions and/or

state facts with no apparent relevance to the issues

presented), and eighty-two pages of meandering and

argumentative responses to defendants’ nine page

ubmission, plaintiffeffectively obfuscates, rather than

clarifies, any genuine factual disputes

| am entitled to demand strict adherence to L.R

6.1, and 1 may refuse to consider assertions presented

in a manner that does not comport with the rule

Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643

(7 Cir. 2008). Indeed, I may deem admitted any fact

not properly disputed in the manner provided by the

Rule. Tulley v. Tharaldson Enterprises, Inc., No. 99 C

50238, 2001 WL 1002406, at *1 (N.D. Ill. 2001 August

29, 2001 citing Jupiter Aluminum Corp. v. Home Ins

Co., 225 F.3d 868, 871 (7" Cir. 2000)). Nevertheless, it

is apparent from my review of the parties’ briefs and

iuthorities cited that resolution of these cross-motion:

ts upon legal questions that can be resolved with

2U0a

reference to relatively few facts.” Accordingly, I have

considered plaintiffs L.R. 56.1 submissions, regardless

of their impropriety, to the extent necessary for an

understanding of the narrow factual landscape. The

narrative in the previous section reflects the material

facts as to which I find there is no genuine dispute

1]

Plaintiff docs not dispute that if the literatur:

displayed in the Park display racks constitutes

government speech, it has no right to have its flyer in

the displays. “It is well established that when the

government speaks, ‘it is entitled to say what it

wishes.” Choose Life Illinois, Inc., v. White,---F .3d---,

2008 WL 4821759, at *5 (7% Cir. 2008\quoting

Rosenberger v. Rector & Visitors of the Univ. of Va

515 U.S. 819, 833 (1995) and citing cases). Indeed, if

the messages conveyed in the display racks are the

government's own, no private speech rights are

implicated by its choice of content. Choose Life, at *5.

To prevail at summary judgment based on the theory

that the display racks coistitute government speech

defendants must first establish facts that support that

legal conclusion. Even if they meet this initial burden,

however, they are entitled to summary judgment only

if plaintiff cannot either controvert defendants’ fact:

with specific evidence in the record, or establish

additional facts to support a contrary legal conclusion

Because the same factual and legal issues govern the partie

cross-motions, and because the movant bears a higher burden

than the non-movant on summary judgment, [ focus my

discussion on the grounds for granting defendants’ motion

Largely the same analysis explains, a fortiori, the basis on which

[ deny plaintiffs motion

Defendants also argue that the Supreme Court

‘speech forum” doctrine is inapplicable to this case

regardless of whether the display racks are purely

government speech. To prevail based on this theory,

defendants must establish (again based on

uncontroverted facts) that the IDNR’s exercise of

discretion in deciding what private speech to make

available in the Park’s display racks is inappropriate

for analysis based on public forum principles. See U.S

v. American Library Ass’n, Inc., 539 U.S. 194, 205

(2003). Assuming defendants meet this burden,

plaintiffs may still survive summary judgment by

controverting defendants’ factual assertions with

specific record evidence, or by identifying additional

facts that support the application of the speech forum

doctrine. As to the latter burden, plaintiff must

present sufficient evidence from which to conclude that

the display racks are either a “traditional” or a

‘designated” public forum, or that they are a nonpubli

forum frum which plaintiff was unreasonably

excluded.* See Cornelius v. NAACP Legal Defense &

Nd. Fund. Inc... 473 U.S. 788. 802 (1985)

lhe exact contours of the “government speech

loctrine are a bit nebulous and appear to be in a stats

f flux at present. See Pleasant Grove City, Utah

mmum, 128 S.Ct. 1737 (2008) (granting writ

é “

Aitnougn dete ndants contend that peer Nn torum prin ples a

napphicablie, they argue in the alternative that these principl

ipport a judgment in their favor. Because I agree that speecl

rum principles are inapplicable, [ need not discuss defendant

lternative irgument af lenot}

22a

certiorari).” For example, the Court of Appeals for the

District of Columbia noted, in People for the Ethical

Treatment of Animals v. Gittens, 414 F.3d 23, 28

(D.C.Cir. 2005)“PETA”), that a compilation of

third-party speech is itself a “communicative act”

(citing Arkansas Educ. Television Comm'n v. Forbes,

523 U.S. 666, 674), then held that such an act by the

government, at least in the context of public libraries

and government-sponsored art exhibits, constitutes

government speech. (“Those who check out a Tolstoy or

Dickens novel would not suppose that they will be

reading a government message. But in the case of a

public library, as in the case of the Party Animals

exhibit, there is still government specch.”) Yet, most of

the cases on which the PETA court relied held the

forum analysis inapplicable without explicit reference

to the government speech doctrine.

In the context of this case, I find it unnecessary (as

well as imprudent, in light of the pending Pleasant

Grove case), to decide whether the “compilation of the

speech of third parties” in the display racks amounts

to purely government speech. Instead, I rely on the

analyses discussed in Cornelius v. NAACP Legal

Defense & Ed. Fund, Inc., 473 US. 788,

802)(describing types of forums), and U.S. v. American

Library Ass'n 539 U.S. 194, 206 (2003)holding forum

analysis inapplicable to public hbraries’ provision of

One of the issues the Supreme Court has been asked to decide in

Pleasant Grove is whether a “compendium of private speech”

displayed on government property constitutes government specch

Though monuments--not flyers--are at issue in Pleasant Grove, it

is possible that the Court’s analysis will affect whether the

contents of the display racks in this case can be considered

government speech

gj9.

soa

Internet services), and conclude that forum analysis 1:

inapplicable to the Park’s display racks

In Cornelius, the Court explained that a forum is

defined with reference to the access sought by the

speaker. Cornelius, at 801. The Cornelius court held

that “the government does not create a public forum by

inaction or by permitting limited discourse, but only by

intentionally opening a non-traditional forum for

public discourse.” Cornelius, at 802. The Court

continued, “not every instrumentality used for

communication...is a traditional public forum or a

public forum by designation.” Id., at 803

In American Library Association, the Court

revisited these principles in upholding’ the

constitutionality of a statute that requires public

libraries to use Internet filters as a condition to

receiving federal subsidies. Speaking for a plurality of

the Court, Chief Justice Rehnquist explained,

A public library does not acquire Internet terminals

in order to create a public forum for web publishers

to express themselves, any more than it collects

books in order to provide a public forum for the

authors of books to speak. It provides Internet

access, not to “encourage a diversity of views from

private speakers,” but for the same reasons it offers

other library resources: to facilitate research,

learning, and recreational pursuits by furnishing

materials of requisite and appropriate quality

American Library Ass'n, Inc., at 206 (plurality opinion)

(distinguishing Rosenberger, 515 U.S. at 834).

Likening public libraries to public broadcasters, as in

Forbes, and to funders of the arts, as in National

.

|

he plurality concluded that

incompatible with the librari fundamental!

ission of “furnish rial f requisite an

hich requirt

ippropriate qual Ly

4

’

'

hat plaintiff sought only to di:

to hand them out

;

|

’ ‘ ager

I splay raCKS not

listribute then anywhere

Accordingly, my inquiry li:

ipplicable to the display rac

4

Park generally

,

racks, jus unquesti

not among the

or the use of the publi

ed ior purposes of assembly, communicat

citizens, and discussing public qi

Court has cautioned

iditional public forums may not be «

,

I ft

vernment speech, defendants

ports ad

contained a combination of solicited and unsolicited

materials, and the primary selection criteria were

whether the information would “assist visitors and

give them information about other ways to spend their

time in the area,” would not be “inconsistent with any

other message [IDNR] was trying to express,” and, in

the case of public health advisories, would provide

information visitors “would need to know about.”

[hese facts demonstrate that IDNR’s intent in

creating and maintaining the display racks was not to

“create a public forum for [private speakers] to express

themselves,” American Library Ass’n, at 206, but

rather to facilitate the recreational pursuits of visitors

to the park. Jd. Creating an “instrumentality used for

communication” is not tantamount to opening a public

forum. Cornelius, 473 U.S. at 803

Plaintiffhas not identified any evidence from which

to conclude that IDNR affirmatively decided to use the

display racks as a forum for public debate or discourse.

tather, uncontroverted evidence shows that the IDNR

intended to designate certain well trafficked areas of

Park property as centers for providing useful

information to Park visitors.” In essence, IDNR created

ire clearly supported by the record, sometimes restating witns

testimony verbatim. Moreover, defendants’ citations do not

controvert plaintiffs on this issue. Nevertheless, under my

analysis, these citations ultimately support defendants’ case, not

plaintiffs because “the government does not create a public foru:

by inaction.” Cornelius, at 802

Plaintiff is correct that the inquiry into intent “is not merely

matter of deference to a stated purnnse.” Air Line Pilots Ass'n

Pi

Intern. v. Department of Avation of u.e City of Chicago, 45 F.3d

26a

a minilibrary of resources for the public, and it

necessarily made “editorial” judgments about which

materials to include. As the American Library

Association plurality concluded, “public forum

principles...are out of place” in this type of context. 539

U.S. at 205. IDNR had broad discretion to select

materials that would “facilitate...recreational pursuits

by furnishing materials of requisite and appropriate

quality.” /d. at 206. That is what the record shows it

1144, (7 Cir. 1995). Plaintiff relies heavily on Air Line Pilots,

emphasizing the Seventh Circuit’s requirement that two factors

be considered to ascertain intent: 1) the government’s policy and

practice, and 2) the nature of the property and its compatibility

with expressive activity. /d., citing Cornelius, 473 U.S. at 802-03.

Consideration of these factors does not save plaintiff from

summary judgment in this case. Although IDPH lacked formal

policies governing the selection of material for display, it is

undisputed that in practice, Brewer and/or Grosso excluded

materials they considered inappropriate. This distinguishes the

instant case from Planned Parenthood Ass’n v. Chicago Transit

Authority, 767 F.2d 1225(7™ Cir. 1985), in which the government

had a general policy of open access for “almost anyone willing to

pay,” as explained by the Air Line Pilots court. 45 F.3d at 1153.

Nor is the nature of the displays compatible with unbridled access

for any and ali expressive activity; surely visitors cannot be

expected to forage through an infinite range of literature in hopes

of finding, for example, a map of the Park. Plaintiff's reliance on

Atr Line Pilots is unavailing for the additional reason that the

judgment in that case reversed a motion to dismiss, not a motion

for summary judgment. The Seventh Circuit has often discribed

summary judgment as the “put up or shut up moment in a

lawsuit,” see, e.g., Springer v. Durflinger, 518 F.3d 479, 484 (7"

Cir. 2008), and plaintiff has offered no meaningful! evidence to

suggest that the government’s policy was anything other than the

one asserted: to assist Park visitors by providing useful

information.

did, and plaintiff has no First Amendment right

. . . |

injunctive relief

In the absence of a First Amendment right t

display its flyer in the racks, plaintiffs Fourteenth

Amendment claim founders. As plaintiff acknowledges,

where no interference with fundamental rights is at

issue, a challenged government action need only

survive “rational-basis scrutiny.” Vision Church v

Village of Long Grove, 468 F.3d 975, 1001 (quoting

Locke v. Davey, 540 U.S. 712, 721 n. 3 (2004)). Under

this standard, plaintiff must demonstrate “malicious

conduct” on the part of government officials that is

unrelated to any legitimate state objective. Vision

Church, at 1001. Plaintiff falls far short of the mark

In fact, other than the conclusory statements that

[DNR’s actions “cannot withstand ecither level of

scrutiny” and that no legitimate state interest is at

issue, plaintiff makes no serious argument that

My factual finding that the government did not intend

designate a public forum means that even if public forun

principles applied. the display racks could only be considered a

nonpublic forum. In nonpublic forums, restrictions on speech need

only be reasonable and ma» not discriminate on the basis of

view point. Air Line .)lc's, 45 F.3d at 1151 (citing Perry Education

Ass’n v. Perry Loca! Fa ‘ors’ Ass'n, 460 U.S. 37, 46 (1983))

Even assuming that clusion of plaintiff's flyer was viewpoint

based (though this is far from clear), | find that because 1)

Dunesland was not prohibited from distributing its flyer within

the Park by means other than inclusion in the displays, and 2) the

IDNR has a legitimate interest in limiting the materials in the

displays to those it considers appropriate and useful to visitors,

any restriction on plaintiff's expressive activities was consistent

with the First Amendment. See Cornelius, 473 U.S. 788 at 809

(restriction on access to nonpublic forum need not be narrowly)

tailored, nor must government interest be compelling)

VITED STATES DISTRICT COUR

RTHERN DISTRICT OF [LLINO

ASTERN DIVISION

PPENDIX

ITED STATES COURT OF APPEA

FOR THE SEVENTH CIRCUIT

Chicago, Illinois 60604

No. 09-1535

Filed November

LINOIS DUNESLAND

RESERVATION SOCIET"

Plaintiff-Appellar f

NOIS DEPARTMENT OQ

ATURAL RESOURCES, e7

Defendani Appellee

FRANK H. EASTERBROOK. C/

RICHARD A. POSNER, Circuzt

IANE P. WOOD. Circutt Judge

: : \ T) :

» United States Distri

ict of Illinois. East

+?

WY, plalnti

ippt

tition for rehearing and petition for rehearing

unc. All the judges on the original panel have voted t

ny the petition, and none of the active judges h

quested a vote on the petition for rel

evs: P — DENTE

ad

—

APPENDIX D

STEPS TO MINIMIZE ASBESTOS

EXPOSURE AT THE BEACH

ha

IN

Avoid Eating, Drinking and Smoking While on

the Beach!

Asbestos fibers can contaminate your hands,

food, and containers. Eat in picnic areas away

from the beach. According to the USEPA,

cigarette smoking greatly increases the

likelihood of a person developing lung cancer

as the result of asbestos exposure.

Avoid Touching Rocks on the Beach!

Many pieces of asbestos have been tumbling

along the shoreline for years. These worn

asbestos pieces have the visual appearance of

shoreline rocks but contain asbestos fibers.

The Park has placed signs on the beach that

warn the public to avoid handling asbestos

and to contact the park office if asbestos is

discovered. The USEPA has the following

recommendation for homeowners who may

have found similar asbestos materials at their

homes: “Don’t touch it, but look for signs of

wear or damage such as tears, abrasions, or

water damage. Damaged material may release

asbestos fibers. This is particularly true if you

often disturb it by hitting, rubbing, or

handling it, or if it is exposed to extreme

vibration or air flow.”

#

33a

Microscopic asbestos can be released from the

sand when agitated. Disturbing the sand can

cause asbestos to become airborne. According

to the USEPA, “Sometimes the best way to

deal with slightly damaged material is to limit

access to the area and not touch or disturb

it.” The Illinois Department of Public Health

states “... removal of sand and other materials

by the public should be prohibited.”

4. Shower Off and Clean Belongings Prior to

6.

Leaving the Beach!

The asbestos fibers can be found wherever

beach sand can go. Wash your whole body

including hair, ears, and under fingernails.

Pets should also be washed down prior to

leaving the beach.

Carefully Clean or Isolate Clothing, Shoes,

Blankets, Towels, Coolers and Other Items

Used at the Beach!

“Don’t track material that could contain

asbestos through the house.” (USEPA) Take

care when shaking out towels and blankets

that may have come into contact with sand.

Remove all beach clothing prior to entering

your car or home. Launder beach clothing,

blankets, and towels separately. Store shoes

and other hard to clean items outside of the

home.

Avoid Certain Cleaning Methods!

Do not dust, sweep, or vacuum debris that

may contain asbestos. According to the

USEPA, “These steps will disturb tiny

34a

asbestos fibers and may release them into the

air.” The use of High Efficiency Particulate

Air (HEPA) filtered vacuums is recommended

for cleaning up dust and fibers. Asbestos

fibers can penetrate the filter of a regular

vacuum cleaner causing the fibers to become

airborne.

Copyright: Illinois Dunesland

Preservation Society, 2004

WHY IS ASBESTOS ON A PUBLIC BEACH?

Illinois Beach State Park has a long history of

asbestos contamination. There is a federal

asbestos Superfund clean-up site on the Johns-

Manville property adjacent to the south end of

the park’s Nature Preserve. This Superfund site

contains one million tons of asbestos waste. A

discharge pipe from this Superfund site empties

into Lake Michigan and periodically spews as

much as 22 million microscopic asbestos fibers

per liter of water into Lake Michigan, some of

which washes up on the park’s beaches.

(Documented by the USEPA in May, 2002.) The

Johns-Manville lagoon system leaks asbestos and

other contaminants into the Nature Preserve

where it flows into the Dead River which

empties into the federal and state navigable

waters of Lake Michigan. The Greenwood

Avenue fishing pier has been closed for over a

year due to extensive asbestos contamination.

Old homes at the northern end of the park were

demolished and some of the debris was buried.

Erosion of the shoreline and the lake bottom,

3aHa

along with the construction of the North Point

Marina, have now exposed this debris which may

include ACM (asbestos-containing materials) and

washes onto the beach.

Authorized by the Illinois Department of Natural

Resources and the IEPA, dredging operations

offshore of Midwest Generation (ComEd) and

adjacent to Johns-Manville have transported

this contaminated, dredged material by barge or

truck north to the park and have deposited it on

the park’s beaches for beach “nourishment” to

offset erosion. The Army Corps of Engineers has

also dumped dredged material contaminated

with asbestos (and other contaminants) which

was taken from the Waukegan Harbor approach

channel and deposited on the Park’s beaches.

The original source for most of the asbestos

contamination (microscopic and pieces) appears

to be from the Johns-Manville Superfund site.

Visible asbestos continues to appear on the

public beaches even though several tons of

asbestos have been removed over the last 6

years. The Illinois Department of Public Health

stated on August 1, 2003, “Occasional handling

of ACM may occur by children collecting shells,

rocks and other materials along the beaches or by

adulis who remove sand for gardening or

construction purposes.”

The llhinois Department of Natural Resources’

asbestos consultant describes the asbestos found

on the beach as “commonly discovered during

weekly surveys.” (Report dated 7/12/04.) More

recently, “friable” (damaged pieces where fibers

3oAa

can easily become airborne) asbestos was

discovered. (Report dated 8/17/04.) No efforts

have been made during this time to clean up the

cancer and disease- causing microscopic

asbestos on the beach.

The inside of this pamphlet contains practical

actions families can take to minimize asbestos

exposure while at the beach. Other

recommendations provided by the U.S.

Environmental Protection Agency, Illinois EPA,

the federal Centers for Disease Control and

Iilinois Department of Public Health will help

families learn how to protect themselves and

prevent potential microscopic asbestos

contamination from affecting their families, pets,

vehicles, and homes.

TIPS FOR AVOIDING

ASBESTOS CONTAMINATION

AT ILLINOIS BEACH STATE PARK

safe level of asbestos exposure has yet to b«

established by the government. However, it is

impossible to avoid breathing any asbestos fibers. The

Illinois Department of Public Health made the

following statement regarding visible asbestos found

by the public at Illinois Beach State Park on August 1,

2003:

“To reduce exposure to the public, warning signs

about the possible presence of ACM (asbestos-

containing material) should be clearly posted,

children should be actively discouraged from

collecting ACM from beaches, and removal of

sand and other matertals by the public should be

prohibited.”

precaution, we are recommending _ the

commonsense approaches on the inside for minimizing

exposure to you and your family from asbestos

contamination while at the beaches of Illinois Beach

State Park

Provided as a Public Service by

[llinois Dunesland Preservation Society

The society is a not-for-profit environmental

organization that helped found the park over

fifty years ago. It was the first nature preserve in

the United States. Our goal is to preserve the

environment at the state park and _ the

surrounding areas. The society also helped

found the Illinois Nature Preserve Commission.

For volunteer and membership information or to

make a donation, please contact:

P.O. Box 466, Zion, IL 60099

Phone Number: 312 332-3377

FAX Number: 312 332-3379

Asbestos References

SEPA: http://www.epa.gov/opt/asbestos/asho

me.html

http://www.atsdr.cdc.gov/asbestos/asbesto

effects. html