No Constitutional Right to Leave Pamphlets in Government Parks

Judge Richard Posner's legal opinions don't interest me.  Nevertheless, it seems that everyone has a crush on Judge Posner; and everyone loves the First Amendment.  Thus, you might enjoy Illinois Dunesland Preservation Society v. Illinois Department of Natural Resources, No. 09-1535 (7th Cir. Oct. 14, 2009) (here).  

The facts:

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.”
***
The beaches do contain asbestos fibers, possibly as aresult 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 stateagencies have not found levels of asbestos sufficient tomenace human health.
Slip op. at *2-3.  After a brief discussion of First Amendment forum doctrines, Judge Richard Posner wrote:
It is difficult to see what difference there is between such restrictions and the selection that the director of astate 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 thedifferences among the different types of site.
Slip op. at *7.  In other words, Judge Posner doesn't like the First Amendment forum analysis cases.  Neither do I.  Still, the cases exist.  Do something with them.

Instead, Judge Posner decides against the plaintiffs on pragmatic grounds:
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 otherareas 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 rackexhibit 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 linkits online home page to every website of an organizationor 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 Cityv. Summum, supra, 129 S. Ct. at 1138; Sutliffe v. EppingSchool 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.
Slip op. at *10-11.  Judge Posner's legal opinions are overrated - at least if you care about the law rather than Judge's Posner's opinion of what the law should be.

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