No charges for protestors at Bloomington farmers market, says Monroe County prosecutor

Five protesters who were arrested at Bloomington’s farmers market on Nov. 9 last year,  will not be prosecuted for their actions, according to a statement issued Wednesday morning by Monroe County’s prosecutor. They had been given summonses for criminal trespass and disorderly conduct.

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Flanked by two Bloomington police officers on Nov. 9, 2019, after his arrest at the farmers market for a protest against white supremacy, is Forrest Gilmore wearing a purple unicorn costume. (Dave Askins/Square Beacon)

The protest got national attention in part because of the inflatable purple unicorn costume worn by one of the protestors.

In the statement from the prosecutor’s office, Monroe County’s prosecutor, Erika Oliphant, is quoted saying, “My office has evaluated the specific facts and circumstances surrounding these citations, and we have decided that it is appropriate to decline prosecution in this instance.”

The specific facts of the situation included protest activity—holding signs and loud singing inside the market vendor area—directed at the Schooner Creek Farm stand. The owners of Schooner Creek were identified by local activists earlier in the year as having ties to a white supremacist group.

In late July last year, one protestor was arrested for similar activity—holding a sign near the Schooner Creek Farm stand. That protestor was also not prosecuted.

The market rules restrict protest activity to the free speech areas—called Information Alley—on the B-Line Trail side of the venue, away from the awnings where farmers sell their produce.

Does the lack of prosecution mean any protestors at the market this spring will get a free pass from Bloomington’s police department?

No, according to Capt. Ryan Pedigo. Responding to a question from The Square Beacon, Pedigo wrote:

The release from MCPO does not mean that BPD cannot arrest protestors next year if there are similar circumstances. … The Bloomington Police Department will continue to arrest individuals who have violated the law and this decision to not file criminal charges on those arrested at the Farmers’ Market will not deter that from occurring in the future.

One of the Nov. 9 arrestees, a member of the self-monikered “Purple Shirt Brigade,” was Thomas Westgard. His social media posts before that day’s protest indicated it was planned to cause arrest.

Reached by The Square Beacon, shortly after the prosecutor’s statement was released on Wednesday, Westgard said a part of him was disappointed that he would not have the chance to argue his case in court. He considers Bloomington’s parks and recreation department’s approach to restrictions on speech at the market to be violations of the First Amendment.

At a couple of public forums hosted by the city of Bloomington last year, legal experts said that some restrictions on speech are permissible, as long as their confined to time, manner and place. Restrictions are not allowed to be based on the content of the speech. It’s a point also made by Bloomington’s corporation counsel, Philippa Guthrie at a Jan. 9 special meeting of the park commissioners.

At the Jan. 9 meeting, the board of park commissioners decided to keep the Bloomington farmers market under public control. That decision came with some revisions to market operations, which are described in the vendor contract and handbook.

Rules of behavior, meant to confine protests to specific areas, could come up at the Jan. 28 regular meeting of the board. Put off at the Jan. 9 meeting, until the board’s Jan. 28 session, was consideration of a document separate from the contract and handbook, that contains rules of behavior.

A draft of the rules of behavior was circulated at a mid-December meeting of the farmers market advisory council. It includes some added language:

Except in designated free speech areas, the following conduct is prohibited:
picketing, demonstrating, yelling, excessive or unreasonable noise-making, obstructing or hindering the flow of pedestrians or access to a vendor, and other conduct disrupting Market activities.

At the mid-December meeting, Forrest Gilmore, who was among those arrested on Nov. 9, wearing an inflatable purple unicorn costume, questioned the proposed additional rules.

Gilmore first clarified the intent of the language: “You want to ban picketing and demonstrating within the market itself, even when the source of that picket or demonstration is in the market? That’s what you’re going to propose?”

Yes, was the answer that Gilmore got from market manager Marcia Veldman and Barbara McKinney, who’s an attorney and the city’s human rights director.

On hearing that clarification, Gilmore asked: “OK, so you are looking forward to getting a lot of people arrested next year?” Gilmore said he didn’t think that the new rules conform with the legal constraints on time-manner-and-place free-speech restrictions.

When The Square Beacon spoke with Westward on Wednesday morning, he said the prosecutor’s decision meant the courtroom would not be a possible venue to argue against the speech restrictions as unconstitutional. But he was not discouraged, he said: It just meant they’d use other venues—including the farmers market.

The protestors have not made specific plans for next season, Westward said, but “exactly zero of us” have said they don’t want to continue in some fashion.

At the Jan. 28 meeting, park commissioners will not be considering the vendor handbook—it was already adopted on Jan. 9. The handbook includes a restriction on speech that the city considers to be  permissible, but to which one vendor objected at the Jan. 9 meeting.

Susan Welsand, aka The Chile Woman, took the public podium during the commentary period to object to an added sentence in the vendor handbook, approved by the board that day:

Vendors may only display signs, information and/or items at their stands that consist of the products they are selling or that are directly related to their business.

This past season, Welsand’s stall was next to that of Schooner Creek Farm, the vendor that protestors had called on the city to remove due to its owners’ ties to a white supremacist group. She told the board her role was to stand next to Schooner Creek Farm in protest of their beliefs.

“Part of the way I was able to do that was through my signage,” she said.  One of her signs started with the phrase, “Welcome! to all, including people of color…” “There’s no place at a market for me where I am denied my free speech rights. … I can’t be at a market that strips me of my First Amendment rights,” Welsand said.

But according to Daniel Conkle, an emeritus professor of law at Indiana University’s law school, the vendor handbook sentence looks like it passes muster with accepted interpretations of the First Amendment. Responding to a question from The Square Beacon, Conkle wrote:

[T]he Supreme Court’s First Amendment doctrine recognizes various types of governmental property, including places that are “nonpublic forums” or “limited public forums” — places that (like the farmers market) serve specific purposes, including speech —related purposes, but that are not designed to be wide-open public forums for all sorts of First Amendment activity.

That means restrictions can be imposed on the subject matter of a participant’s speech in a limited public forum—as long as those restrictions are “reasonably related” to the purpose of the forum, according to Conkle.

“This reasonableness test is rather easy to satisfy,” Conkle said, “and I think the clause [in the vendor handbook] would pass the test.”

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