By Meg Peters
The largest daily newspaper in Michigan is suing Orion Township for $5 million after the township demanded the Detroit Free Press stop delivering its weekly newsletter and shopping guide Select to residents who do not want this free service.
Select, delivered to about 2,500 residents in Orion Township, is a mix of editorial content, advertising and coupons, and arrives in a pink plastic bag along driveways on a weekly basis.
Detroit Free Press attorney Herschel Fink filed the civil rights lawsuit in federal court May 12 after the Free Press received two $800 littering fines from Orion Township.
The township warned the Free Press in a letter February 4 that the “leaving of unrequested and undesired newspapers and/or flyers circulated by your company” would result in the township fining the newspaper for littering. The Free Press has not yet paid, and will appear in court June 29 to address the littering violations.
Fink said it was the Free Press’s constitutional right to deliver the newsletter, whether it was wanted or not.
“They can’t do this, it is absolutely outrageous. $800 per issue?” Fink said.
Fink sent them a response letter listing “all the federal appellate courts and several US courts of appeals” that unanimously ruled in almost identical cases that newsletters like Select are “absolutely protected” by the First Amendment.
“I warned them that using the littering statue was violating the Free Press’s rights, and that it was an ill-advised course in conduct. If they pursued it, it would result in me filing the civil rights lawsuit,” Fink said.
Fink said he was more surprised that the township proceeded with the two littering fines even after they were advised of the Free Press’s constitutional rights.
Although other communities and individuals have occasionally complained about receiving Select, Orion Township is the first community “that has actually gone ahead and started prosecuting the Free Press,” Fink said.
Orion Township has 21 days from May 12 to respond to the lawsuit.
Since the news broke that the Free Press filed suit with the township, Supervisor Chris Barnett said he has received hundreds of inquiries “thanking me for doing this.”
He also said that Fink has not done his homework, and that the township would defend its position.
“Mr. Fink would be well-served to figure out the real issue, which he has admitted on TV interviews, that the Free Press’s ‘opt-out’ clause admittedly needs improvement. That is the issue here, not claiming free speech and this frivolous lawsuit in federal court.”
Fink argued that everyone who receives Select has requested it, but admits the opt-out system has its issues.
“It’s not a perfect system, and I believe that we could probably do better and are trying,” he said. “But the law is we don’t have to ask permission. We do [ask permission] because we want people to desire this.”
For anyone who doesn’t desire it, Fink said the Free Press takes steps to ensure that people receiving Select who do not want it can opt out. Twice a year the newsletter includes sticky notes explaining the opt-out process.
“The fact is that they cannot call it litter, and cannot ticket as such,” he said, stating the township had no case.
Unlike the The Lake Orion Review, Advertiser, Penny Pincher and Save on Everything newspapers that are placed in residents’ mailboxes, Barnett said the Select is thrown onto driveways and often ends up on the main roads, in rivers or creeks, and even have been sucked up into snow blowers.
Barnett said he has called the Free Press 800 number four times requesting to be opted out of the free service.
“They said my address has never been a subscriber. Our residents have tried to do the same, and continue to receive them. It’s a safety issue, and that’s what my job is, to listen to residents’ complaints.”
Receiving Select has been the number one complaint Barnett’s received since last fall, he said, especially when residents go on vacation and come back to several Selects in their driveway, which shows the homeowners are gone and could tip off thieves.
The two littering tickets, issued April 20 and May 26, were based on fact from residents that they received the paper unwillingly, giving the township grounds to issue the littering tickets, he continued.
“We have ordinances in the books that allow us to do exactly what we did,” Barnett said. “The First Amendment protects their right to free press and free speech, but it does not allow them to distribute them [the newsletters] any way they want.”
By Meg Peters