Editor's Note: This story has been updated to clarify the city's legal fees to fight the lawsuit are being paid by the insurance carriers for the city and city attorney. It also clarifies that the city agreed to a temporary restraining order that was issued against it by a judge.

It’s hard to imagine a city council or township board announcing words like this: “Members of the public may speak as long as they say nothing political. Otherwise, sit down. You’re out of order.”

Yet that’s what happened recently in Birmingham.

The dispute over who can speak, and when, has put the city in federal court in Detroit, where it has five attorneys defending it from two residents blocked from speaking in July.

The dispute also has one of those residents, along with two of his supporters, threatening the status quo at Birmingham City Hall this fall. The trio is running for commission seats against three incumbents, including Mayor Patty Bordman.

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At Monday night’s City Commission meeting, neither Bordman nor any other official commented on the free-speech controversy, even as they heard public comments from the same two plaintiffs who filed the lawsuit. Clinton Baller and David Bloom, both longtime residents, have charged the mayor, the city attorney and the City of Birmingham with violating the U.S. Constitution and Michigan’s Open Meetings Act.

As Baller and Bloom began speaking into the commission chamber’s public microphone, the city could have said that each was “out of order,” as the mayor declared at the July 8 meeting. Or, the city could’ve turned off the cable-TV cameras that were broadcasting the meeting live, as the city attorney threatened to do at the July 22 meeting, should any member of the public engage in what he called “political advocacy.”

Instead, with the lawsuit pending, the mayor and city attorney this week allowed Baller and Bloom to speak.

There was more than enough time for Baller, and then Bloom, to vilify city leaders for quelling dissent. Although both avoided saying that Baller was seeking a commission seat, Bloom told the audience that he wanted this fall's city election to bring sweeping change in the city's leadership.

Before the two of them spoke, a retired history and government teacher from Birmingham’s Seaholm High School stood up and told the commissioners that they were out of order, in effect, with the U.S. Constitution.

“You’re a political body (and) all speech before an elected body is political,” Mary Taras said, adding: “It should not be — it really can’t be, it seems to me — prohibited."

Baller then told commissioners that he, along with Bloom, had attended last week’s hearing of their case before U.S. District Judge Victoria Roberts. The two of them, along with resident Brad Host, who is allied with them and also seeking a city commission seat, were the only members of the public at the hearing on Sept. 12.

Baller told the commissioners that he and Bloom were seeking an injunction — “that’s an order that the city halt certain behavior,” he said — because they had been blocked from speaking at the July meetings.

“David and I believe that Mayor Bordman and Attorney (Tim) Currier violated, among other things, our First Amendment right to free speech in a public forum. We believe their actions represented a deliberate, premeditated attempt to stifle criticism and that this will have a chilling effect on residents who wish to address this body and on residents who are watching” on the city’s cable-TV public-access channel, Baller said.

Bloom labeled the commission “a lawless body” for blocking his speech without any vote or discussion.

“It is my hope that we will be able to have a new city commission in November and we can then begin to work on restoring public trust,” he said.

Birmingham officials have declined since late July to speak about their public-comment policies at commission meetings. But the city’s lawyers have maintained, in legal briefs and in their words in U.S. District Court, that commission meetings are modeled after what other courts have called a “limited public forum.”

They’ve said that the main purpose of a Birmingham City Commission meeting is similar to that of a business meeting, that they are not equivalent to traditional settings for free speech such as public sidewalks.

“Plaintiffs would have this Court believe that Commission meetings are a ‘free-for-all’ where any attendee can pontificate about any matter without restriction,” they argued.

Birmingham’s lawyers also have stated, in legal filings and in court, that the city's contract with its public-access TV channel prohibits political speech, and that the Michigan Campaign Finance Act bans the city from using any public resources —including its public-access TV channel, over which commission meetings are broadcast — to communicate political advocacy. Thus, the city says, it was forced by law either to keep Baller and Bloom from voicing views that officials felt were political, or to turn off the cable-TV cameras while they spoke.

The residents’ lawyer rebutted those arguments in briefs and oral arguments, citing state laws and legal cases that seem to brush aside any relevance of the Michigan Campaign Finance Act, and pointing out wording in the city's cable-TV public-access policy stating that Birmingham residents "may use the channel as a forum for free speech..."

Two prominent firms in Bloomfield Hills and Southfield have been hired to fight the residents’ lawsuit. A total of five attorneys from the two firms are listed in court documents as counsel in the case. City Manager Joe Valentine says the legal bills —likely totaling hundreds of dollars an hour — are being paid by the insurance carriers for the city and the city attorney.

In contrast, the residents retained one lawyer, who told the Free Press that he is working at no charge from an office in his Detroit apartment, hoping to win the lawsuit and be awarded attorney’s fees.

The dispute began with city officials trying to quell Baller’s and Bloom’s dissent over a ballot measure. The measure requested that city residents approve a multimillion-dollar bond sale, which would've paid for a new public parking deck and allowed significant private development on city land, including a 99-year lease to developers. The measure suffered a resounding defeat in the August election.

In the lawsuit before U.S. District Judge Victoria Roberts, the score so far is Residents 1, City 0. With agreement from the city, Roberts granted Baller and Bloom a rare temporary restraining order on the afternoon of Aug. 5, forcing the city to let them speak at that night’s City Commission meeting, on the eve of the election.

At last week’s hearing, Roberts seemed dissatisfied with the city’s arguments. She repeatedly asked attorney James Tamm whether the city intended to shut off cable-TV cameras at future meetings. Tamm said he was unsure, asking for 14 days to clarify his clients’ position.

“I don’t know if the commission intended to have this be their permanent policy. It may be become their formalized policy going forward,” he said.

An hour after the hearing ended, the court sent attorneys for both sides an email from Roberts’ chambers, bluntly asking whether the Birmingham City Commission “(1) will not stop the cable broadcast of Commission meetings if a speaker engages in political advocacy; and (2) will allow speakers to engage in political advocacy.”

The email went on to say that if both sides "enter into a stipulation" — that is, if they agree — to numbers 1 and 2, “there will be no need for the Court to rule” on the scores of pages of legal briefs. In other words, the lawsuit would be settled in favor of the plaintiffs.

The email concluded: "Please submit the stipulation by next Wednesday, September 18, 2019. If you are not able to stipulate, please let the Court know why in writing."

Based on that wording, and on the reception given to Baller and Bloom at Monday's meeting — when both were allowed to speak as cable-TV cameras rolled — it may be that Birmingham's troublesome lawsuit over free speech could soon end.

Then again, with the incumbent commissioners' pride at stake, along with their five lawyers' legal billings and a city election, the case might continue at least until the election on Nov. 5.

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Video reveals fiery exchange at Birmingham city commission meeting

Contact: blaitner@freepress.com