April 2010 - Parks & Recreation - 29

By James C. Kozlowski, J.D., Ph.D.

law revie w

Beach Park
Refuses " Alarming "
Pamphlet Display

I

n the case of Pleasant Grove City v. Summum, 172 L. Ed. 2d 853 (U.S. 2/25/2009),
the U.S. Supreme Court held the Free
Speech Clause of the First Amendment did
not necessarily entitle a private group to have
a monument reflecting its views erected in a
public park along with other monuments donated by other groups.
In so doing, the Court noted that the Free Speech
Clause restricts government regulation of private
speech, but it does not regulate government speech.
Accordingly, the Court found the Free Speech
Clause " had no application if government officials
were engaging in their own expressive conduct " :
A government entity has the right to " speak for
itself. " It is entitled to say what it wishes. It is the
very business of government to favor and
disfavor points of view.

Further, the Court noted that " [a] government
entity may exercise this same freedom to express
its views when it receives assistance from private
sources for the purpose of delivering a government-controlled message. "
In the opinion of the Court, " [p]ermanent monuments displayed on public property typically
represent government speech. " As noted by the
Court, " [g]overnments have long used monuments
to speak to the public. " Moreover, the Court found
governments have not maintained " viewpoint neutrality " in constructing a monument on public land.
On the contrary, the Court found government design monuments as a " means of expression " to
" convey some thought or instill some feeling in
those who see the structure. "
On the other hand, the Court recognized that
" the public retain strong free speech rights when
they venture into public streets and parks " which
have " immemorially been held in trust for the use
of the public for purposes of assembly, communicating thoughts between citizens, and discussing

	

Illinois Beach State Park

public questions. " In such " traditional public fora, "
like public parks, the Court found " government entities are strictly limited in their ability to regulate
private speech. "
(See: June 2009 Law Review " Government Controls Donated Park Monument Message " James C. Kozlowski. Parks & Recreation. Jun. 2009 Vol. 44, Iss. 6)

" Scary Tips "
In the case of Illinois Dunesland Preservation Society v. Illinois Department of Natural Resources, 584
F.3d 719 (7th Cir. 10/14/2009), the issue was whether the government had a right to " speak for itself "
and effectively control the nature of pamphlets in a
state park display rack to convey its " government
speech " message, i.e, come to the park and have a
great time on the sandy beaches. In this case, the
plaintiff Illinois Dunesland Preservation Society
(hereinafter referred to as the " Society " ) claimed
the free speech clause of the First Amendment included a right to have their own pamphlet included
in display racks in various buildings in the park.
Defendant Illinois Department of Natural Resources
(hereinafter referred to as " DNR " ) had refused to
display what was described as " a scary two-page
pamphlet that the plaintiff had prepared. The pamphlet was entitled 'Tips for Avoiding Asbestos Contamination at Illinois Beach State Park. "
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 Society is a nonprofit corporation that
helped to create and continues to support the park.

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APRIL 2010

Parks & Recreation	 27
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