In what Posner characterized as a “frightening” and “scary” two-page pamphlet called “Tips for Avoiding Asbestos Contamination at Illinois Beach State Park,” the Illinois Dunesland Preservation Society warned beach-goers 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.” The pamphlet advised readers to “wash your whole body including hair, ears, and under fingernails. Pets should also be washed down prior to leaving the beach.”
Park officials refused to display the asbestos pamphlet next to other brochures and leaflets, including maps, tourist ads, park guides and lists of nearby resorts.
Posner noted that the beaches do contain asbestos fibers, possibly from their proximity to a plant that once made building materials containing asbestos or from beachfront homes that long ago washed into Lake Michigan. But he said studies have found that the asbestos levels aren’t high enough “to menace human health.”
Until 2004, the racks also displayed a “fact sheet,” prepared by state environmental and health agencies, acknowledging low levels of asbestos in the park, but denying any health hazard.
The fact sheet “is as anodyne as the plaintiff’s pamphlet is alarming,” Posner said.
The preservation group, which helped create the park, argued that state officials can’t censor its pamphlet while allowing the fact sheet and other forms of speech.
Lawyers on both sides debated the type of forum that the park racks constituted: traditional public, designated public, nonpublic, or limited designated public (“what Shakespeare’s Polonius would have called a ‘vile phrase,'” Posner said in reference to the last category).
Posner downplayed the differences among forums and stressed their constant: “that regulation is not to be used as a weapon to stifle speech.”
But because the pamphlets are a form of government speech, he said, park officials don’t have to endorse anything that contradicts their message.
“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,” Posner wrote.
Displaying the pamphlet “would give it a legitimacy, a weight, that the defendants are not obliged to acknowledge,” he concluded.
The Chicago-based appeals court affirmed the lower court’s dismissal of the claims.
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