Focus of Bloomington’s “fragile” farmers market in 2020: Decisions on time, manner and place

cropped 12-09-2019 farmers IMG_2397
Bloomington’s farmers market advisory council (FMTAC) takes a vote Monday night on a recommendation that the percentage of gross sales that food and beverage artisans pay to the market be reduced from 10 to 5 percent in 2020, with a goal of establishing a fixed fee on par with that paid by farm vendors. FMTAC did not take a vote for or against privatization of the market. (Dave Askins/Beacon)

On Jan. 9 next year, Bloomington’s board of park commissioners will make a decision about the future of the city-sponsored market, which last year featured 121 farm vendors and 17 food and beverage artisans.

The Jan. 9 decision will come after a season of protests this year against a vendor with alignment to white-supremacist groups. The market was suspended for two weeks in late July, amid concerns about possible violence.

At Monday’s meeting of the farmers market park advisory council (FMPAC), held in a crowded conference room on the second floor of city hall, FMPAC members did not take a vote on a recommended scenario for next year’s market. So the board of park commissioners won’t receive a formal resolution from FMPAC.

But FMPAC members expressed individual views that ranged between continued city sponsorship of the market  and the formation of a private non-profit to organize it.

One possible scenario is that the Saturday market will continue to be sponsored by the city at Showers Common, a site with shelters designed specifically for a farmers market, and the place where the city’s market has been held for more than two decades.

Another scenario is that the manner of the market’s organization and the place where it is held both change: The city no longer sponsors the market, but a private non-profit is formed to run a market that’s similar in scale, and it’s held at some location besides Showers Common.

Floated at Monday’s meeting by FMPAC member Cortland Carrington was a combination of those scenarios: Transition the market to a non-profit that leases the Showers Common space from the city. It’s not clear if that scenario would keep enough distance between the city and the non-profit for the non-profit to escape First Amendment requirements.

Advocates of the non-profit scenario see it as an option to exclude the protested vendor, Schooner Creek Farm, from Bloomington’s farmers market. That’s a possibility not available to the city, the city says, due to First Amendment free speech protections. Protesters contend that Schooner Creek Farm has violated market rules that warrant expulsion, like providing accurate names for stall assistants, among other things.

At Monday’s meeting, Marcia Veldman, the city’s parks and recreation staffer who coordinates the farmers market for the city, said that there was not a plan to police the accuracy of stall assistant names with some kind of ID check.

The most recent protest, on Nov. 9, was planned to result in arrests—demonstrators carried signs in an area where the market’s rules say signs can’t be held.

Revisions to rules like those were among the highlights of four draft documents reviewed at Monday’s meeting by Veldman.

Feldman told the three dozen people who crammed into the legal conference room at city hall that staff are preparing the documents for a city-sponsored market—assuming the four-member board of park commissioners would opt on Jan. 9 to continue the market under city sponsorship.

If the agreed-upon general scenario in January is a city-sponsored market, then some specific time, manner and place restrictions are proposed for free speech at the market next year. Part of the added language is this paragraph:

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.

The free speech areas—called Information Alley—are on the B-Line Trail side of the venue, away from the awnings where farmers sell their produce.

At Monday’s meeting, Forrest Gilmore, who was arrested on Nov. 9 at a market protest wearing an inflatable purple unicorn costume, questioned the proposed additional rules. (No charging decision for the half dozen protestors has yet been made by the Monroe County prosecutor’s office.)

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 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, place, and manner” free-speech restrictions.

Based on the discussion by three attorneys who were panelists at a Dec. 7 city-sponsored event, First Amendment case law allows for the government to place “time, place and manner” restrictions on speech, only as long as they are content-neutral. The city would likely contend that confining demonstrations to the Information Alley space at the farmers market is an example of an allowable time, place or manner restriction.

But one of the attorneys on the panel, ACLU of Indiana executive director, Jane Heneger described time, place and manner restrictions can go only so far: They have to be reasonable. Demonstrators can’t be relegated to a place that is so far away from the action being protested that it renders the protest meaningless, Heneger said.

At Monday’s meeting, Gilmore echoed Heneger’s point. “Forcing a person away from the source of their protest, you are in fact making their protest meaningless,” he said. The source of the protest was a particular vendor, so protestors could not be relegated to a spot away from the vendor area, Gilmore said. “You’re exposing yourself to a serious lawsuit,” he said. McKinney told Gilmore they’d have to agree to disagree on that point.

A couple of meeting attendees voiced the view that protestors of the vendor should conduct their demonstrations outside the market, for example, on the courthouse square.

Eric Schedler, of Muddy Fork Farm & Bakery, asked if the new language was meant to reflect a change in policy or if it was intended to put down on paper the way an existing policy had been enforced for the last couple months of the market. Feldman said her understanding is that the new paragraph is the legal department’s attempt to further clarify the city’s existing policy.

A bit later in the meeting, another arrestee from the Nov. 9 farmers market protest, Thomas Westward, laid out his view of the ban on protest in the vendor area in blunt terms: “Everything you’re saying is a clear violation of the First Amendment. You’re not even trying,” he said. Westward added, “I guarantee you, I’ll get arrested, and I’ll sue. You’re gonna get sued for what you’re trying to do.”

Bruce McCallister, who chaired Monday’s FMAC meeting, thought protests at the market early in the year could effectively end it: “This market is extraordinarily fragile,” Mcallister said. “All it’s going to take is a couple of weeks of disruption early in May, and people are going to stop coming, vendors are going to stop coming, and it could go to dust that quickly.”

About the future of the market, McCallister thinks the city has to balance the interest of vendors in conducting commerce and the concerns that many people have about the beliefs held by some vendors.

“I don’t know what to recommend to the city to find that balance,” McCallister said. But if the city does not have a way to manage that balance of interests, he thinks the city should think about not sponsoring the market and allowing a private non-profit to organize a market.

Feldman told FMAC members that the board of park commissioners would be provided a copy of the meeting minutes from Monday’s session to help them decide the future of the market on Jan. 9.

Jan. 9 is not a scheduled date for the board to meet. It’s a special session that was called for the earliest time the board could achieve a quorum, Veldman told The Beacon after Monday’s FMAC meeting.

This slideshow requires JavaScript.