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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1635%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2010
- **Citation:** 559 U.S. 1049

## Text

Supreme Court, U.S
FilieEDp

OFFICE OF THE CLERK
at ‘1 he

>upreme Court of the Ginited State:

ie ZA)

| 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
i : il
} vynere fg ermnmes
} nt In eCrroneou ly make Cxpre Si
nducts ib] prope y governme
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

‘

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
bia '
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, ,
wn
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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

VerTTiiil nt aot i ‘ AicA V6
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
isht would b ! interest

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APPENDIX

IN THE
rED STATES COURT OF APPI
FOR THE SEVENTH CIRCUIT

Northern District «
Eastern Division
Elaine E. Buck!

Za

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

' ; ' x .
mages and declaratory relief against the individ
iendant the I ipaciti

:
% I t |
t T\7 * ' 7
4 ¥ ; :
rT] y } ij
+ } A }
iT {
Tif f

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
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1635%3A1. Public record. Not legal advice.