Updated: Free Speech Annoys Berkeley Yet Again...

Becky O'Malley
Friday August 18, 2017 - 11:52:00 AM

It’s no surprise that the iggarunt lackeys of the current crop of white supremacists have chosen to invade college towns like Charlottesville and Berkeley. These folks have always feared and despised the pointy heads, as their ideological granddaddy George Wallace used to call intellectuals, especially liberal intellectuals.

Here in Berkeley, where I’ve lived off and on since 1958, we’re looking forward with annoyance to invasions four and five in the very near future. We are the storied 60s home of the Free Speech Movement, and we’ve been a target of opportunity ever since. Unfortunately, all too often the reaction by bureaucrats, both campus and city, has been to save themselves trouble by trying to restrict speech they (and often we) don’t like, which never works.

The next date when we’ll have to put up with an ugly bunch of bigots will be Sunday, August 27, a little over a week from now. The prospect seems to have provoked Berkeley officials both elected and appointed to unnecessary overreaction.

First, a little history.

Number one in the recent series was the aborted visit of the campy peroxide conservative Milo Yiannopoulos, who was supposed to speak on the University of California campus under the sponsorship of the Young Republicans. Tremulous UC Berkeley administrators blew that one big time, first cancelling his talk and then allowing truculent campus cops to get into a brouhaha with the Black Bloc, a bunch of masked self-styled anarchists, mostly testosterone-poisoned young men with sticks who came spoiling for a fight and broke a few shop windows downtown.

The next round, in March, billed as a post-election rally of Trump supporters, was held in Martin Luther King park next to City Hall. Most or all of them came from out of town spoiling for a brawl. The Black Boys also hoped for fist fights, and scored a few, but nothing much of consequence happened except a few arrests.

After that, the Young Republicans tried to schedule the shrewish blonde Ann Coulter. She bailed in a controversy over dates, but when she didn’t show up the rowdy rightists had another even smaller get-together in MLK park, with even fewer fights.

I went to both of the last two encounters, and can report that nothing describes the alt-right attendees as well as “a basket of deplorables”—sad inconsequential losers. A few among them were clearly striving to get recognized as armed-and-dangerous celebrities, but they didn’t do much but posture. The city of Berkeley police showed admirable restraint, breaking up actual fights but otherwise just marching around looking stern.

As the old joke has it, two Jews, three opinions. Here, it’s five Berkeleyans, 50 opinions. The question of the appropriate response to the upcoming visitations has been endlessly debated in the arenas of choice, which includes list-servs maintained by progressive organizations, Facebook, the UC student newspaper and various online news sites like the Berkeley Daily Planet and berkeleyside.com.

The writers seem to sort out into a few repetitive groups. First out of the gate was the idea that Berkeley’s city government should somehow ban what’s called “hate speech” within the city limits. That happens to be a particular bugaboo of mine, since the Planet was unfairly chastised for it at enormous length by a few people who mistakenly believed themselves to be friends of Israel. Let’s just say it’s a slippery slope.

A recent advocate of this theory cited as his authority a 1942 Supreme Court case, Chaplinsky v. New Hampshire, where a Jehovah’s Witness street preacher who called a city marshal a " damned racketeer" and "a damned fascist" in a public place was arrested and convicted under a New Hampshire law of breach of the peace.”

For context: that’s the same 1942 Supreme Court, remember, that upheld the internment of Japanese-Americansin the Korematsu decision, since discredited and repudiated. Also, the Chaplinsky case seems to have turned on whether the preacher’s cuss words created an immediate danger to the marshal, which of course they didn’t.

We should be careful what we wish for. Geoffrey Stone, in his 2004 book Perilous Times: Free Speech in Wartime, says this about Chaplinsky:

“…it would be very dangerous to allow the government to pick and choose which false statements in public debate it will prosecute and which it will tolerate. The opportunities for selective prosecution and political abuse are obvious, and the prospect of using federal courts to decide on the truth or falsity of such statements in the absence of any concrete harm should give us pause.”

Would we like Chaplinsky to set the standard for Berkeley? Especially, of course, with this federal government, this Supreme Court?

The Berkeley city administration, progressive council or not, seems no more qualified than the federal government to decide which speech can or should be restrained, especially prior to when it’s uttered.

But if we forego prior restraint on the content of the proposed speech, per established constitutional norms, what else can Berkeley do about the online threats from the White supremacists? It’s ordinarily assumed that government can regulate the time, place and manner of constitutionally protected speech, if not the content. Oddly, the facebook page of the August 27 rally organizers is entitled "No to Marxism in America", which seems to be exactly the kind of speech content protected by the First Amendment. It's true that the CPUSA generally stood up for racial justice, but that's kind of a stretch.

Mayor Jesse Arreguin in an August 16 press release said he was exploring, with city staff’s aid, tools available to prevent the kind of mayhem which happened at Charlottesville.

(Here we might pause to acknowledge the ingenuity of UC Berkeley, finally using some smarts to deal with threatened alt-right invasion number 5, the latest annoyance offered by the UC College Republicans, a talk by Ben Shapiro, an oxymoronic “conservative intellectual” twerp. According to the Daily Cal, he’s being offered the 2,000 seat Zellerbach Auditorium for his talk, which should effectively swallow up his little claque, which I hereby predict will be fewer than 200 idiots. Let’s all stay home from this dreary prospect. )

There still remains the question of how righteous Berkeleyans should deal with the August 27 crowd. One tempting stance could be called “Just Say No”, or perhaps “The Silent Majority”.

The idea would be that everyone with any principles would simply avoid MLK Civic Center Park, where the unpermitted ravening hordes are threatening to gather. Berkeley’s a city of ~125, 000, so we could claim that there are a lot of counter-protesters who just aren’t showing up. The argument goes that this would prove that they’re Wrong and we’re Right…er, Correct.

A corollary to this theory would be the very real worry that the right will show up armed and dangerous.

People who advance this point to a scary VICE news segment featuring lots of footage of what happened in Charlottesville.

An unsigned press release distributed from the City of Berkeley’s City Manager’s office by the “Press Contact” asked us all to stay home to make things easier for the police: “The best response for those seeking to safeguard our community is to stay away… Please do not create alternative events near downtown Berkeley. Even if peaceful, nearby counter-events take police officers away from those intent on committing violence or damage.”

The City Council is on its summer break, so it’s not clear whose idea this is, if indeed it’s backed by any of the Electeds, but it’s presumptuous at best.

I feel their pain, but at least for those of us who came up in the civil rights movement, staying silent in the face of what looks a lot like Fascism seems to be what’s dangerous.

Especially with the recent addition of blatant White supremacy to the Trumpist armory, it’s incumbent on those of us who are White to do what my young African American friends call “represent” –to speak truth to power, as my Quaker friends would say. I don’t need to tell African-Americans what to do.

I won’t even waste the pixels to talk about what a dumb idea it is to show up with sticks and shields as some self-styled Antifas like to do. But silence gives consent, so the rest of us should speak up, literally or symbolically, albeit non-violently.

In this category a variety of alternative actions have been proposed. FormerBerkeley Mayor Shirley Dean, thorough as always, has a whole compendium of them which can be seen here.

Rob Wrenn reports that a non-violent rally is planned for the morning of the 27th at the UC campus entrance on Oxford.

A number of proposals for what seem to be wickedly satirical counter-protests are floating through the electronic ether, including one which seems to involve a huge inflated chicken which looks like Donald Trump. If and when I get a specific plan from this group, I’ll let you know what it is.

At the time of writing (Friday noon), however, city staff seems to be throwing a major spanner in the works.

It appears that the newish City Manager is asking for a panoply of extra powers to be voted on at a hastily called “Emergency” meeting this afternoon for this afternoon at 3

. It is immediately obvious to any of us who has ever participated in a spontaneous protest that laws like this could be applied against all kinds of demonstrations.

This is what’s proposed:

"13.45.020 City Manager Authorization. The City Manager or his or her designee is authorized to issue such regulations and take such other actions as are necessary to preserve public health, public safety and property on City streets and sidewalks during street events planned or proposed to be held in the City and for which no permit has been obtained pursuant to Chapter 13.44 of this Title, including the prohibition of certain items and activities or restriction of them to certain times and/or locations. Failure to obey any directive issued by the City Manager or his or her designee pursuant to this section shall be a violation of this chapter."

Osha Neumann of the East Bay Community Law center has written an excellent letter to the City Council explaining what’s wrong with this proposal which can be read here.

I’ll go to the meeting and let you know what happens.

UPDATE at 7pm on 8-18-17

I went to the “Emergency” City Council meeting this afternoon and learned a few things.

First, it wasn’t much of an emergency. I chatted with a Brown Act maven on the way out, and she thinks that creating the ground rules for an event that might need them in more than a week would not pass the Act’s test for a properly noticed meeting.

However. The real emergency, if there was one, was that District 4 Councilmember Kate Harrison is supposed to leave the country for three weeks tomorrow, and she saved the day. Without her, her colleagues might have plunged into a deep constitutional morass, but they managed to avoid it with her guidance.

A roomful of the usual suspects came loaded for bear. They (rightly) perceived the proposed ordinance as a blank check that could be used as a weapon against future protests by people who were not the alt-right, and in the public comment period that preceded the discussion they made that abundantly clear.

But by the time the draft got to the meeting, it already had a number of amendments clarifying its scope, proposed by Harrison with advice from the ACLU. Before the public spoke on remaining deficiencies in the new draft, the Mayor explained what it was supposed to do: to give the City Manager on behalf of the police the ability to create new rules on what might be prohibited potential weapons and defining the perimeter within which they could be banned, in the context of a large gathering which didn’t have a permit. The only problem, as the first public commenter said, was that the language of the draft, even as amended, didn’t say that.

As the meeting progressed, Harrison, with occasional help from Sophie Hahn and strong support from Cheryl Davila, managed to significantly tighten it up, so when it finally passed (that was inevitable) it was largely defanged. A New Year’s Eve sunset clause was added and the specifications of what constituted weapons and how the area covered was defined were narrowed to an acceptable scope.

I’ll wait until the city clerk releases the official language as ultimately amended to report on exactly what it ultimately says, but I think it’s okay now, not the real danger to Berkeley’s cherished freedom to raise hell that it was originally.

By the way, many commenters, including me, took the opportunity to complain that “the city”, whoever that might be, was inappropriately telling them to stay home. Jack Kurzweil of the Wellstone Democratic Club said that about a hundred organizations had already signed on for the morning counterprotest.

And when I got home I was bemused to see an email from Pro Publica, an “investigative” journalism group in New York City, with an article asking if police could prevent another Charlottesville. The writer reported that “The alert the city [of Berkeley] sent out Wednesday was direct: ‘The best response for those seeking to safeguard our community is to stay away.’ “ Source? The city manager’s PR guy, Matthai Chakko. Maybe he should have let the council or even the Berkeley public weigh in on that before issuing his press release, and maybe Pro Publica should watch out for single source reporting.

If the comments at today’s council meeting meant anything, what Matthai Chakko and/or whoever his principal is asked for is not what’s going to happen.