April 2010 - Parks & Recreation - 31

indicated that park staff does try " to remove from the beaches material that contains or might contain asbestos. "
According to the court, the existence
of asbestos at Illinois Beach State Park
had " attracted the attention of the media, " including an August 2, 2007 article
in the Chicago Sun-Times entitled " It's
Not Child's Play; Material Containing
Carcinogen Found This Week in Sand
Castle at Illinois Beach State Park. " As
described in this news report, " 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. "
In stark contrast to the Society's
" alarming " pamphlet, prior to 2004, the
display racks in the park had contained
a comparatively innocuous " fact sheet "
prepared by state environmental and
health agencies regarding asbestos in
the park. The fact sheet acknowledged
the presence of low levels of asbestos in
the park's beaches, but denied that they
were a health hazard.
When the supply of copies ran out in
2004, the asbestos fact sheet was no longer available in the park display racks.
DNR claimed it had " prepared and displayed new fact sheets in 2005 and again
in 2006, " but the court found no evidence
of these new fact sheets or their content
in the record.
In this particular instance, the federal appeals court characterized the
brochures and flyers in the beach park
display racks as " government speech. "
Further, to the extent that it furthers the
purpose for which a government-owned
facility was created, the federal appeals
court found that " a government can limit private expression " in a facility to expression that " could be and sometimes
are used for private expressive activities, but are not primarily intended for
such use. " Specifically, the court found
that " [t]he materials chosen for the display racks in the Illinois Beach State Park
are designed to attract people to the
park, and more broadly to Illinois tourist
facilities and services. " In contrast, the
court found " [t]he choice of materials

conveys a message that is contradicted
by the plaintiff's pamphlet " :
Most people who read and believed
the plaintiff's pamphlet would flee the
park forthwith. The message of the
plaintiff's pamphlet is: you think
you're in a nice park but really you're
in Chernobyl [Ukraine site of a 1986
nuclear accident] so if you're dumb
enough to come here be sure not to
step on the sand because that would
disturb or agitate it, and to scrub
under your fingernails as soon as you
get home.

According to the court, " 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. " In the case
of government speech contained in the

display racks at the state park, the court
found that DNR would not be required to
contradict itself by including a counterstatement urged by a private person, i.e.,
the Society's asbestos pamphlet.
In the opinion of the federal appeals
court, there were " compelling practical
objections to the plaintiff's position " that
the Society had a First Amendment right to
be given " access to the racks for its frightening pamphlet. " According to the court,
if the First Amendment compelled access
for private messages, " [t]he display rack
would soon be crowded with angry pamphlets by environmental activists, and rejoinders by park and other state officials " :
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

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APRIL 2010

Parks & Recreation	 29
April 2010 - Parks & Recreation

Table of Contents for the Digital Edition of April 2010 - Parks & Recreation
