Judge Dismisses "Obscene" Phone Call Charge Against Frustrated Farmer

February 20, 2004

DETROIT -- An Ingham County judge has dismissed the “obscene” phone call charges against an 82-year farmer who left voicemail messages on the Michigan Department of Agriculture’s complaint line complaining about a sickening smell emanating from a nearby agribusiness. The farmer, Gerald Henning, was represented by the American Civil Liberties Union of Michigan.

“The judge’s ruling sends a message to the state officials that they cannot charge a citizen with a crime simply because they are not polite when criticizing the government,” said Michael J. Steinberg, Legal Director of the ACLU of Michigan. “The prosecution of Mr. Henning was particularly disturbing because he left complaints on a hotline that was established for the sole purpose of receiving complaints.”

Ingham County Circuit Judge Paula J.M. Manderfied ruled yesterday that Mr. Henning could not be prosecuted for the voicemail messages because the speech was protected by the First Amendment.  She held that while Mr. Henning was “disgruntled” and his language was “somewhat feisty” and contained some profanity, the complaints were not threatening or obscene and they did not constitute “fighting words.”  Judge Manderfied’s ruling reverses the order of a lower court judge who refused to dismiss the charges.

“The only reason I called the hotline was to get the government to enforce the law and stop the stench coming from farm next door,” said Henning.  “It’s good to know that I am free to speak my mind.”

In an effort to obtain the help of the Michigan Department of Agriculture (MDA), Henning, who lives in Hudson Township, Lenawee County, began calling an MDA complaint hot line to leave voicemail messages.  The MDA’s failure to respond resulted in increasing frustration on the part of Mr. Henning, leading him to use increasingly strong language. 

Mr. Henning’s farm is surrounded on three sides by an enormous agribusiness.  Mr. Henning says that the agribusiness has sprayed liquid manure for more than two years without incorporating it into the soil a manner that is inconsistent with state law.  The liquid manure emits a putrid smell that can cause serious health consequences.

According to Mr. Henning, state investigators have observed the infractions of Michigan law, yet have not fulfilled their responsibility to ensure compliance on the part of the agribusiness, and to protect Mr. Henning and his family.

In addition to Steinberg, Henning was represented by ACLU Cooperating Attorney Sarah Zearfoss.

To read the transcript of the phone calls, go to: http://aclumich.org/sites/default/files/file/pdf/briefs/henningtranscriptofprosecutorstape.pdf

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