Park District Faces 1A Dispute
"Free Speech Zones" in parks draw the scrutiny of a rights advocacy organization
A First Amendment dispute involving the Downers Grove Park District is about to enter a second round. The Foundation for Individual Rights and Expression (FIRE) said it plans to send a follow up letter this week concerning a 2024 Park District policy which limits free speech in Downers Grove parks.
In a March 6 letter to the Park Board, FIRE expressed concerns about designated “free speech zones” in the parks, which it said infringe upon the right of residents to engage in “expressive activity in traditional public fora.”
The Supreme Court has ruled that parks and sidewalks have been “immemorially” held in trust for public use, including the exercise of free speech, and that access to them for the purpose of exercising First Amendment rights “cannot constitutionally be denied broadly and absolutely,” according to the FIRE letter. The district’s free speech zones violate the First Amendment by converting “a traditional public forum into a non-public forum by fiat,” it said.
The issue was brought to FIRE’s attention by Downers Grove residents Laura Hois, Jeffrey Mack and Mary Mack, who FIRE said “have been adversely affected” by the Park District’s regulations. In a story in the March 14 Chicago Sun-Times, Hois said she was stopped by a Park District employee in July 2024 while attempting to campaign in Fishel Park in advance of a concert. She was told to confine her political activities to the 15-by-15 foot “free speech zone” that had been established in the southwest corner of the park along Grove Street.
Hois, an attorney who has run for the DuPage County Board and other local and state offices, told the Sun-Times that she was upset by the directive, saying “it’s completely un-American.”
Yet, neither Hois nor the Macks apparently contacted the Park District with their concerns. “During last summer’s concert series events, a few attendees asked about the free speech zone at Fishel Park,” said Dawn Hartman, the Park District’s director of marketing and public engagement. “They were given a QR code linking to the policy and offered a follow-up from staff, but none requested it or shared contact information.”
Following the publication of the Sun-Times story, the Park District received only one direct inquiry regarding the policy,” she said.
On the recommendation of legal counsel, the Park Board adopted Policy 4.4.12 in May 2024 as a response to the growing number of demonstrations and protests occurring both locally and nationally. In public discussions, the board developed the policy to “ensure a safe and enjoyable environment for both event and program attendees as well as individuals exercising their First Amendment rights,” Hartman said.
In a response to FIRE, attorney Derke J. Price acknowledged the Park District “is aware that its mission includes providing public spaces for the peaceable and reasonable performance of First Amendment activities on district property.”
“However, the district also recognizes that its primary mission is to provide facilities and opportunities for active and passive recreational activities,” Price wrote, adding that fulfilling that mission “can limit or prevent First Amendment activities.”
The Park District also has a responsibility to protect park resources, he wrote. As a result, certain park properties, such as the Pierce Downer Burial Place, the prairie and buffer areas, artificial turf and the museum buildings “have been declared not to be public for First Amendment activities” because they are “incompatible with such activities.”
Park District staff and the Village of Downers Grove “are authorized and directed to take such reasonable action as necessary to end any attempted First Amendment activities at those locations,” according to the policy.
The policy also designates eight areas as “public forums for the purpose of First Amendment activities,” including the exact locations where such activities are permitted. For example, a demonstration at the Lincoln Center/Constitution Park must be limited to the grassy area along Maple Avenue, while in McCollum Park, it would be limited to the northeast of the park along 67th Street, the area southwest of the park outside the ball diamonds/walking path, and the pavilion west of the ball diamonds on Main Street, according to the policy.
Other parks designated as public forums are: the Downers Grove Golf Club, the Recreation Center, Doerhoefer Park, Marduke Farms, the Administration Center and, of course, Fishel Park. In each case, First Amendment activities are restricted from interfering with programming and other uses of the parks.
“I do not believe that you are advocating that the law requires that the Park District permit a parade or even a single protestor to march through a youth soccer or little league game,” Price wrote.
That conflict—the use of parks for programs and organized activities versus the exercise of First Amendment rights—is the crux of the dispute. “Over the years, Fishel Park has served as a gathering place for protests and demonstrations,” Hartman said. “These activities are welcome at any time outside the designated Free Speech Zone at Fishel Park, provided no concerts, programs or events are scheduled.”
Indeed, the Supreme Court has recognized that First Amendment activities may be subject to “reasonable” restrictions as to “time, place or manner,” although those exceptions must be narrowly drawn in response to a significant government interest, and may not reference the content of speech, according to information on the FIRE website.
Whether or not the Park District has a problem that requires correction remains to be seen. While no changes to the policy are currently under consideration, “the Board of Commissioners regularly reviews all district policies as part of its ongoing governance practices,” Hartman said.
So, where do you think the line should be drawn? Historically, parks have been passive gathering spaces. Today, they are just as likely to be the scene of scheduled sporting events, concerts, classes and other activities. Does it really matter if a lone candidate attempts to pass out literature during a concert? Maybe. How about if a dozen protesters gather in front of the band shell with signs and bullhorns?
The outdoor nature of its mission seems to put the Park District at a bit of a disadvantage. Compare it to the Village of Downers Grove where the new Civic Center has a beautiful plaza in which citizens are virtually invited to freely exercise their right to free speech. But would officials be hospitable to their attempts to picket Village Hall offices?
Lawyers are invited to weigh in.