Bloomington prevails in lawsuit filed by vendor over anti-white-supremacist protests at farmers market

On Wednesday, a U.S. District Court judge delivered a summary judgment in favor of Bloomington, in the lawsuit filed against the city, the mayor and two staff members, by the owners of Schooner Creek Farm (SCF).

Six protestors against Schooner Creek Farm, including one in a purple unicorn costume, were arrested on Nov. 9, 2019. None were charged.

The summary judgment means the case got a ruling without a trial. It also means the court agreed with Bloomington that there were no relevant disputes about the facts of the case, and that it could be decided just based on application of the law.

The court found that Bloomington did not violate the constitutional rights of SCF’s owners, as they had claimed. According to the city of Bloomington’s news release, which came late Friday, SCF’s owners  have 30 days to file an appeal with the Seventh Circuit Court of Appeals.

Schooner Creek Farm (SCF) was a Bloomington farmers market vendor during the 2019 season. SCF drew protests that year from local activists over its ties to white supremacist groups and views. On two occasions, protesters were arrested by Bloomington police, but charges were not filed.

The lawsuit claimed that the city had not enforced the market rules against the protesters in the same way it had enforced rules against SCF—which is a constitutional equal protections issue. SCF also claimed that its constitutional rights of free speech were infringed by the city’s response to the protests.

The initial response to the ruling by some of those who protested against SCF and supported the protests, has been critical of Bloomington mayor John Hamilton’s decisions at the time. Protestor Thomas Westgård told The B Square the ruling shows SCF could have been removed from the market based on the “welcoming environment” clause of the vendor contract.

Westgård wrote in a Facebook post, “As the federal judge ruled today, the city had the power all along to enforce its contract. City authorities had the opportunity to take a firm stand against the Neonazis, Oath Keepers, and Three Percenters. ”

Indiana University professor of law Steve Sanders, who teaches constitutional law, responded to an emailed question from The B Square by writing, “There was no basis for the court to speculate about the legality of other, different actions the city might have taken, such as removing the vendor. That did not happen, and if it had, it would be a different set of facts calling for its own legal analysis.”

In the city of Bloomington’s news release, mayor John Hamilton is quoted as saying, “We are gratified that [the ruling] confirmed the City’s actions during the 2019 market season were appropriate to protect the integrity of the market, the safety of visitors to the market, and the constitutional rights of everyone involved—including strong voices of activism within our community.”

SCF is currently listed as a farmers market vendor on the city of Bloomington’s website.

SCF made six separate claims under the U.S. Constitution: two involving free-speech, one under the free association clause, one under the equal protection clause, and two under the due process clause. A seventh claim was made by SCF under Indiana’s state constitution, on free speech grounds.

In his ruling on Wednesday, U.S. Southern District judge Richard Young granted Bloomington’s motion for summary judgment in its favor, and against SCF, on each of SCF’s claims.

The basic background to the lawsuit, from the court’s recitation, starts in early June of 2019, when Bloomington activists discovered the membership of SCF owner Sarah Dye in Identity Evropa and the American Identity Movement. Not long after that, Bloomington community members formed No Space for Hate to oppose white supremacy and Schooner Creek’s presence at the Market. The first protestors showed up at the Market on June 8, 2019, according to the ruling.

According to the ruling, No Space for Hate set up a protest outside the market boundaries on the B-Line Trail, not in the market’s Information Alley. Because Bloomington did not waive a fee for No Space in the market’s Information Alley, and SCF did not try to register for a space in Information Alley, the ruling concludes that this could not be argued to be viewpoint discrimination.

In addition, the ruling finds there was no viewpoint discrimination in Bloomington’s request that political signs not be displayed by vendors, because it was a request made of all vendors.

The ruling also points to Bloomington’s regular enforcement of the market rules: Market staff would ask protestors to disperse when they violated the market rules by disrupting commerce or yelling and causing a scene, the ruling states. There were no instances in the factual record where protestors disrupted commerce without intervention by market staff, the ruling states.

The ruling also says that the market staff would “be no more legally entitled to evict individuals wearing ‘Boycott Schooner Creek’ shirts than it could evict someone wearing a shirt with ‘Fuck the Draft’ printed on it.”

The city’s request of all vendors that they not display political signs at the market could not be analyzed as “prior restraint” of free speech, according to the ruling, because SCF never requested or attempted to bring a sign to the market.

The ruling also says that the city’s request that SCF not bring a particular stand assistant to the market was not an infringement of the right to freely associate. There was no demand by the city that SCF disassociate from the stand assistant in question, the ruling says.

But even if the city had demanded that SCF not bring that stand assistant to the market, the activities that the stand assistant was supposed to perform did not involve activities protected by the First Amendment, according to the ruling. Those activities were to document and photograph the protestors, bag produce and get change.

SCF’s equal protection claim contended that protestors were allowed to pass out political materials in SCF’s vending space, while SCF was prohibited from doing that. In reasoning that there was no equal protections violation, the court said SCF was not “similarly situated” to the protestors.

According to the ruling, what made SCF’s situation different was that SCF—like other vendors—had signed a contract that stated they would comply with the Market rules and collaborate with the city to “creat[e] a welcoming environment for all who attend the Market…” The protestors were not subject to that requirement because they did not sign a contract, according to the ruling.

It’s the ruling’s citation of the “welcoming environment” clause that Westgård, the protestor, sees as significant. Westgård told The B Square the city did treat SCF in disparate fashion. Examples he gave included making requests of SCF to not bring a particular stand assistant to the market and asking SCF to participate in mediation sessions. What justified that disparate treatment was the “welcoming environment” clause of the vendor contract Westgård said. And that disparate treatment could have been extended to SCF’s removal from the market, Westgård contends.

About SCF’s due process claim, the ruling states that the market rules are not unconstitutionally vague. The rules prohibit the “interruption of commerce” and interrupting the market by “yelling or causing a scene.” The ruling says that the market rules give enough guidance to staff, vendors, and patrons “such that those of common intelligence need not guess at the rules’ meaning or scope…”

The ruling also says that SCF was not deprived of property, when they were not allowed to rent the same stall in 2020 as they had in 2019. That’s because the stall was chosen by another vendor with more points in the market’s system for allocating stall space. SCF was able to rent their second choice, which was next to their old space, according to the ruling.

The ruling also found that Bloomington was entitled to a summary judgment in its favor on the state constitutional claim, even if the ruling rejected a technical argument by the city based on the kind of damages sought.  The ruling states that Bloomington did not restrain the free interchange of thought and opinion or restrict the SCF owners right to speak under under Indiana’s state constitution.

The ruling also found that the market manager and the director of parks and recreation, who were named in the lawsuit, were protected by qualified immunity. In support of the ruling on qualified immunity, the ruling states: “The record demonstrates that Bloomington officials faced a challenging situation throughout the summer of 2019. A reasonable official facing the particular facts of this case could reasonably have believed that their conduct was permissible.”