City, residents settle first amendment lawsuit

U.S. District Court Judge Victoria Roberts approved a stipulated order between Clinton Baller, David Bloom and the city of Birmingham, Patty Bordman, both individually and in her capacity as mayor of Birmingham, and Timothy Currier, both individually and as attorney for the city, on Tuesday, October 1, without costs and without prejudice, in a lawsuit against the city alleging the free speech rights of the plaintiffs had been violated when the city stopped them from speaking at a July commission meeting.

A stipulated order is an agreement between two parties submitted to the judge for approval. It eliminates the need to go to court and have the judge make a decision about an issue.

The order provides that during “citizen participation” portions of city commission meetings, as defined in the commission's Rules of Procedures, the city will not stop the cable broadcast of commission meetings if a speaker engages in political advocacy and will allow speakers to engage in political advocacy. Per the stipulated order, the city may impose restrictions on speakers set forth in their Rules of Procedures section “Citizen Participation.”

Further, Judge Roberts stated that nothing in the order precludes the city from withdrawing from participating in the Birmingham Area Cable Board, or discontinuing the practice of broadcasting city commission meetings on the government access channel in the future.

The stipulated order followed a four-hour settlement conference. Baller and Bloom had filed suit July 22, alleging their free speech rights had been violated by the city, as well as the state's Open Meeting's Act, when Bordman and Currier stopped them from speaking at the city's July 8 city commission meeting during public comment regarding the N. Old Woodward parking project and upcoming bond vote.

At the July 8 city commission meeting, Baller spoke out on a number of agenda items and attempted to tie in the bond vote to them, with both Currier and Bordman stopping him, asserting that the city's cable contract does not permit “advocating” for a political campaign. During the public comment portion of the meeting, Bloom noted in his suit that he was mid-sentence to “new parking deck on Old Woodward,” and was interrupted by Bordman with “You have to stop.”

Currier instructed Bloom his comments were out of order because a contract existing between the city and the Birmingham Area Cable Board “prohibits political speech.” When Baller sought to speak next, regarding a city mailer on the vote, Currier said they “can't take any political question. Baller in his suit stated he “proceeded to express objection to the body's actions over approximately the next 15 seconds… (and) Bordman declared the meeting adjourned.”

Baller and Bloom alleged that since they were stopped or restricted from voicing their intended comments at a form opened for use by the public, their First and Fourteenth Amendments were violated.

According to the Birmingham Area Cable Board contract, last updated January 2019, under “Public Access,” it states, “Residents of those communities (Birmingham, Beverly Hills, Bingham Farms and Franklin) may use the channel as a forum of free speech and express a diversity of viewpoints as outlined in the 1984 Federal Cable Act.”

As for programming definitions and restrictions, it notes obscene speech is not protected by the First Amendment and can't be broadcast at any time along with indecency; as for candidate and political programming, it states that access channels are not legally obligated to adhere to the FCC's “equal opportunity” rule or the Fairness Doctrine.

The contract does not mention remarking on or advocating for or against city activity.