Judge lets Mississippi County farmer go, calls posts free speech

court gavel
court gavel

A circuit judge Thursday cleared a Mississippi County farmer of possible contempt-of-court charges, citing a lack of evidence that the farmer had sprayed dicamba in defiance of a court order.

"I don't care for [the abuse], but speech is still protected in this country," Pulaski County Circuit Judge Morgan E. "Chip" Welch said in clearing Tom Burnham, 56, of the Yarbro community, after a 30-minute hearing.

In his order posted Thursday afternoon, Welch said Burnham had "made certain inelegant and profane comments" about Welch, another Pulaski County circuit judge and others but, without subsequent prohibited action, he was within his First Amendment rights to free speech.

Burnham had taken to social media last week to excoriate Welch for issuing a temporary restraining order against a state Plant Board rule allowing farmers to spray dicamba deeper into this crop season. A May 25 email from Burnham to the state Department of Agriculture and 193 other recipients hinted at intentions to ignore Welch's order and spray dicamba.

That email got Burnham invited to Welch's court to explain why he shouldn't be held in contempt.

Instead, at the start of the hearing, Burnham invoked the U.S. Constitution's Fifth Amendment right against self-incrimination. Burnham's citing of the Fifth Amendment vexed Welch, who said he considered the hearing to be on a civil matter, not a criminal one.

Tim Dudley of Little Rock, Burnham's lawyer noted for his decades of work in high-profile criminal defense cases, disagreed.

"I concede you know more about crimes than I do," Welch said, with a hint of a smile.

Welch has set a hearing for 1:30 p.m. Thursday on the merits of the lawsuit that indirectly took Burnham to court. Conservationists and farmers allege a series of legal flaws in how the Plant Board came to adopt the new rule, now on hold, allowing farmers to spray in-crop dicamba formulations through June 30. Welch's order meant that the May 25 cutoff for the 2020 crop season was back in place.

Another lawsuit against the new rule, filed by Ozark Mountain Poultry of Batesville and various farmers who say dicamba threatens their crops, is pending in Welch's court. It also cites alleged legal flaws by the board.

In a telephone interview last week a few hours after Welch summoned him to court, Burnham said he hadn't sprayed dicamba illegally. He also confirmed that the social-media posts were his. "I apologize that the Pulaski County court was offended," Burnham said. "I run my mouth a lot and got myself into this, but that's no problem. I'm a big boy."

Burnham is both a critic and user of dicamba on his 12,500 acres of crops in extreme Northeast Arkansas and the Missouri bootheel.

After seeing dicamba damage to varieties of cotton and soybeans not tolerant of dicamba in 2017, 2018 and 2019, amounting to losses in the "hundreds of thousands of dollars," Burnham said he began switching to Monsanto's dicamba-tolerant Xtend crop system. "I had to switch to survive," Burnham said last week.

In Thursday's hearing, Dudley also argued that Welch's temporary halt to the Plant Board rule did not specifically order farmers not to spray dicamba. Welch disagreed, later noting in his order, "Mr. Burnham has now been admonished to not spray dicamba until further court orders."

Welch asked Richard H. Mays, a Little Rock attorney whose lawsuit against the Plant Board rule led to the temporary restraining order, for evidence showing Burnham had sprayed dicamba.

Without Burnham's testimony and possible admission of wrongdoing, "I don't have evidence that he did," Mays said, adding that he still believed Burnham was flouting the law. Mays, who was among the 193 recipients of Burnham's email about continuing to spray, filed the motion asking Welch to consider holding Burnham in contempt.

Dudley also referenced the lack of evidence, noting that, among a couple of Burnham's social-media posts filed with the court, "there's nothing in there that says 'I sprayed dicamba."'

Toward the end of the hearing, Welch referred to an anonymous telephone call to his office last week, apparently an abusive or threatening one. With Burnham not testifying, Welch said he couldn't ask Burnham whether he made the phone call. Welch said he could withstand criticism but added, "I won't let my staff be abused."

Meanwhile, Burnham was back on Twitter on Thursday afternoon, posting that he'd learned "a few things" from being in court. A list of five items in the tweet included "Free Speech is expensive."

He also denied, in the tweet and in a telephone call with a reporter, making the call to Welch's office.

Upcoming Events