The New York Times reports that President Obama has signed the hate crimes bill.
The First Amendment Center discusses a case in which the Seventh Circuit rejected a nonprofit group’s argument that it was entitled to have its pamphlet included in a rack of pamphlets in a public park. The case is Illinois Dunesland and Preservation Society v. Illinois Department of Natural Resources. The opinion was written by Judge Posner. The plaintiff, a nonprofit, had helped create the park. The park included a beach. The pamphlet warned of the risks of asbestos at the beach. The display racks included pamphlets created both by private individuals and by the government. Some of the government pamphlets included warnings about health issues. The circuit concluded that the government could exclude the pamphlet because “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 service. The choice of materials conveys a message that is contradicted by the plaintiff’s pamphlet.” According to Judge Posner, anyone who read the plaintiff’s pamphlet wouldn’t dare set foot on the park’s beach.
The problem of conflicting messages is the doctrinal reason Judge Posner gives for his opinion. However, he continues on to write that there are “compelling practical objections” to a contrary holding. Specifically, “if 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.”
Judge Posner also devotes several paragraphs to setting out the Supreme Court’s baroque public forum doctrine, and then states that “it is rather difficult to see what work ‘forum analysis’ in general does.”