IL Dunesland Preserve v. IL Dept of Natural Resources

Oct 14: In the U.S. Court of Appeals, Seventh Circuit, Case No. 09-1535. According to the Appeals Court, in this suit regarding free speech and First Amendment rights, the Illinois Beach State Park is a large state park abutting Lake Michigan in northeastern Illinois; 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 [i.e. Civil action for deprivation of rights] against state officials involved in its management and the state agency that operates the park, charging infringement of free speech.

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. 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 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 Appeals Court notes that while the beaches do contain asbestos fibers, several cited state and Federal studies have not found levels of asbestos sufficient to menace human health. Additionally, the Appeals Court said, ""In this case, which involves a First Amendment issue, the lawyers have treated us to a barrage of unhelpful First Amendment jargon."

In conclusion, the Appeals Court affirmed the district court ruling and said, ". . .the district judge noted that the plaintiff 'did not seek 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 required to hand out pamphlets to Park visitors.' The park authorities cannot impose unreasonable barriers to using open public space to convey ideas and opinions (remember that a park is 'a traditional public forum'), but there has been no showing that they’ve tried to do this."

Access the complete opinion (click here).