DETROIT - An 82-year-old farmer who complained to the Michigan Department of Agriculture by voice-mail over its failure to stop a nearby agribusiness from creating a sickening smell, has been charged him with making “obscene” phone calls. The American Civil Liberties Union of Michigan has filed a brief on the farmer’s behalf arguing that his speech was protected by the First Amendment.

“The law is clear that citizens are not required to be polite when they complain to government officials,” said Michael J. Steinberg, legal director of the Michigan ACLU.  “It is disturbing that the state would charge a person with a crime for leaving messages on a complaint line about a legitimate problem simply because he expressed himself in a way that some might find offensive.”

Gerald Henning lives in Hudson Township, Lenawee County, on land farmed by his family for generations, and still being farmed by his son and daughter-in-law.  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 an effort to obtain the help of the Michigan Department of Agriculture (MDA), Mr. Henning began calling an MDA complaint hot line, leaving numerous 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. 

The ACLU has filed a friend-of-the-court brief asking Lansing District Court Judge Frank J. Deluca to dismiss the criminal charges because Mr. Henning’s speech is constitutionally protected.  The motion to dismiss will be heard tomorrow, June 19, at 8:30 a.m. in Judge Deluca’s courtroom at Lansing City Hall, 124 W. Michigan Avenue.