IL Dunesland Preservation Soc v. IL Dept of Natural Resources

In the

United States Court of Appeals
For the Seventh Circuit

No. 09-1535

ILLINOIS D UNESLAND P RESERVATION S OCIETY,

Plaintiff-Appellant,
v.

ILLINOIS D EPARTMENT OF N ATURAL R ESOURCES, et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 2880—Elaine E. Bucklo, Judge.

A RGUED S EPTEMBER 11, 2009—D ECIDED O CTOBER 14, 2009

Before E ASTERBROOK, Chief Judge, and P OSNER and
W OOD , Circuit Judges.
P OSNER, Circuit Judge. 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 against state officials
2 No. 09-1535

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 plaintiff’s only purpose in seeking
such relief in this case was to establish liability for the
past infringement of its rights so as to entitle it to dam-
ages. 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 dis-
missed.
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 “asbes-
tos fibers can be found wherever beach sand can go,” the
No. 09-1535 3

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 amuse-
ment 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 con-
taining 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 Regis-
try, “Health Consultation, Exposure Investigation
Report on Illinois Beach State Park” (Oct. 19, 2007),
www.atsdr.cdc.gov/HAC/pha/IllinoisBeachStatePark/
IllinoisBeachStatePark(EI)HC101907.pdf; Illinois Dept. of
4 No. 09-1535

Public Health, “Public Health Assessment, Asbestos
Contamination at Illinois Beach State Park” (May 23, 2000),
www.atsdr.cdc.gov/HAC/pha/illinoisbeach/ibp_toc.html;
see also University of Illinois, Center 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 Illinois 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 Environ-
mental 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 Ac-
tion,” 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 supply of copies of the fact sheet ran out. The defen-
No. 09-1535 5

dants 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 plaintiff’s pamphlet is
alarming.
Lawyers in federal appeals invariably frame their
arguments in language taken from Supreme Court opin-
ions. In this case, which involves a First Amendment
issue, the lawyers have treated us to a 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 “desig-
nated 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 U.S. 37, 45-46
(1983).
A traditional public forum is a street or park, or some
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 leafletting. A
designated public forum, illustrated by a public theater,
6 No. 09-1535

Southeastern Promotions, Ltd. v. 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 like the Justice Depart-
ment’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 & Educational 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
No. 09-1535 7

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 46 n. 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); Steinburg v. Chester-
field 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 outsid-
ers—were allowed to give talks.
It is 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 groups
clamoring for access to the stage. Indeed it is rather
difficult to see what work “forum analysis” in general
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 demon-
strations 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,
8 No. 09-1535

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] necessarily 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 Piarowski v.
Illinois Community College Dist. 515, 759 F.2d 625 (7th Cir.
1985)? In all three cases the management of a govern-
ment 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 capacity.
The defendants argue that “forum analysis” is inap-
plicable (more precisely, that it does not support the
plaintiff’s 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
No. 09-1535 9

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 plaintiff’s 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 plaintiff’s.
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 the Illinois
Beach State Park are designed to attract people to the
park, and more broadly to Illinois tourist facilities and
10 No. 09-1535

services. The choice of materials conveys a message that
is contradicted by the plaintiff’s pamphlet. The message
of the publications in the display racks is: come to the
park and have a great time on the sandy beaches. The
message of the plaintiff’s 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
scrub 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 resur-
recting their old fact sheet and placing it next to the plain-
tiff’s 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 pam-
phlets by environmental activists, and rejoinders by
park and other state officials.
Which brings us to the compelling practical objections
to the plaintiff’s 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
No. 09-1535 11

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 Civilization’s End
(2007)), reciting the “Seven Aphorisms of Summum” (the
title of the plaintiff’s 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
(1st 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
v. Summum, supra, 129 S. 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 plaintiff has for reaching the
12 No. 09-1535

patrons of the state park with its message. At argument
the plaintiff’s lawyer, repeating an unelaborated state-
ment in his brief, said his client would need a “demon-
stration permit” in order to be allowed to hand out pam-
phlets 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 message out.” But he didn’t say it was the
only way, and 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.
A FFIRMED.

10-14-09