Federal case against Orion Twp. continues

By Jim Newell
Review Staff Writer
The attorney for the Detroit Free Press paid two $800 littering fines in district court on Thursday, but that does not end the fight, and the federal case and the $5 million lawsuit against Orion Twp. will continue.
Herschel Fink, attorney for the Free Press, submitted the personal checks in the 52nd District Court in Rochester Hills Sept. 22.
“The Free Press admitted responsibility to littering and paid two $800 fines to Orion Twp. That’s a fact,” said Orion Twp. Supervisor Chris Barnett. “Herschel Fink handed to our attorney two $800 personal checks to pay for the tickets, and he signed the back of the tickets admitting responsibility.”
However, in an interview with The Lake Orion Review, Fink said rather than fight the littering fines, he paid the tickets to remove that issue and focus on the first amendment case.
“We removed the technical block that the township argued. Now the federal case continues,” Fink said. “Our position is that it violates our constitutional rights. We are continuing, there’s no question about it.”
At issue is the Free Press weekly publication Select, a mix of editorial content, advertising and coupons, that arrives in a plastic bag along driveways on a weekly basis and is delivered free of charge to households, including about 2,500 homes in Orion Township since 2012.
Barnett said he’s received hundreds of complaints from residents who don’t want Select delivered to their homes, and that the Free Press opt-out option isn’t working.
“I literally spend dozens and dozens of hours, mostly in the wintertime, dealing with residents’ concerns,” Barnett said. “People don’t want them (the Select).”
Barnett said residents’ concerns are that they go on vacation, the paper piles up in the driveway and it says to thieves, “Hey, come take a look at my house if you’re up to no good.”
He also said that residents have complained about the paper ruining snowblowers when the papers become buried in the snow, and that the papers pile up in driveways, blow into streams and lakes and are a general nuisance.
“So we sent them a warning letter saying please stop delivering to the people who don’t want them, we never said don’t deliver at all in Orion, and that’s what they’re trying to make this case now … that we’re violating their first amendment rights,” Barnett said.
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 township issued two littering tickets on April 20 and May 26.
Fink has admitted in the past that 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 to The Lake Orion Review in May. “But the law is we don’t have to ask permission. We do [ask permission] because we want people to desire this.”
Fink filed the civil rights lawsuit in federal court May 12 after the Free Press received two $800 littering fines from Orion Township.
“The law is very clear: the state district court cannot declare a law, an ordinance, to be unconstitutional,” Fink said. “The question for the federal court is: Is the ordinance itself constitutional, with leaving it at someone’s house without their permission?”
“What I feel like is happening is that the argument is shifting from what it originally was to now, and I feel like they’re trying to bully us,” Barnett said. “And we can’t simply just say, “Okay, well, we’ll stop this thing because we are the ones that are the defendants, they sued us, not the other way around.”
Fink said the Free Press’ position is that dropping its newspapers off at someone’s house is the “same as if someone wants to leave campaign literature at your house without your permission…this has broad implications. The application of littering ordinances to constitutional rights is everyone’s battle.”
“So, it’s going to probably last a long time, and it’s going to cost a lot of money,” Barnett said.
“Personally, I think that’s unfortunate. But at the end of the day we have had people reach out to us literally from Downriver to Lansing to Lapeer on this issue, saying “we’ve been fighting this, we’ve been having our city hall trying to help us, our village council, our township board, we’ve had other attorneys from local municipalities, other mayors, other colleagues of mine saying we get these same complaints, saying please don’t give up this fight, this is intriguing to all of us, how this is going to play out,” Barnett said.
Barnett said the free press offered previously to come to terms, but the township refused.
“Two months ago their offer to us was to pay them $48, 000 in legal fees and essentially write an apology saying we were wrong and we’ll drop this case,” he said.
“Well, that’s an absolute waste of taxpayer dollars,” Barnett said. “I don’t think we’re wrong, so we said ‘no thank you,’ which took us to this court date.”
When asked if Orion will seek reimbursement for its attorney fees, Barnett said that’s a decision the township board will have to make as a whole.
“I would say, personally, absolutely, unequivocally, yes,” Barnett said, adding that if Orion Twp. wins in court, “they should pay our attorney fees. It shouldn’t cost our taxpayers money. We don’t have a choice but to defend ourselves at this point.”
Fink, however, has said that the township’s ordinance is unconstitutional as applied.
“Government has no business drawing those lines, that’s what this case is about,” Fink said. “You can’t make ad-hoc decisions that one type of speech is protected and one isn’t.”
“This is a fight for freedom of speech, freedom of expression,” Fink said.
For now, the township has stopped citing the Free Press for delivering its publication to residents who do not want it.
“Our board actually passed a resolution saying that until this gets resolved in court we won’t issue anymore tickets. Kind of like a gentlemen’s agreement,” Barnett said.