Defending Freedom of Speech in Berkeley

It is absurd that the Downtown Berkeley Association, representing the wealthiest property owners in town, is taking public money to pay a private patrol to tear down the posters of poor artists, activists and community groups. We’re paying them to tear down our posters — and rip up the First Amendment.

by Carol Denney

John Caner, CEO of the Downtown Berkeley Association (DBA), made his third public apology in less than a year, this time for having the DBA’s “ambassadors” rip down legally placed fliers and posters — in a city where the Free Speech Movement defended free speech and dissent.

Caner first apologized about a year ago when his 2012 election campaign in support of his anti-homeless measure, “Berkeley Civil Sidewalks—Yes on S,” was fined $3,750 by the Berkeley Fair Campaign Practices Commission for not reporting more than $5,000 in cash payments to homeless people to hand out deceptive fliers advocating making sitting down a crime.

Next, Caner apologized again earlier this year when two of his DBA ambassadors were videotaped attacking and brutally beating two homeless men. Caner characterized this violent assault as an isolated incident, yet several homeless people had previously reported similar encounters with DBA ambassadors.

Now, Caner has apologized once again, on October 13, 2015, when community members spoke in favor of a motion by Berkeley City Councilmember Kriss Worthington asking the city manager to “examine whether any constitutional questions arise if DBA Ambassadors take down fliers placed on poles that appear to comply with Berkeley Municipal Code.”

Once again, Caner characterized the DBA’s practice of employing their private patrol to rip down fliers as an isolated incident which he was hearing about for the first time.

Caner said, “Sometimes ambassadors make mistakes. Sometimes our ambassadors don’t know all the nuance. I invite (the public) to give us a call. I was not aware of it. We’re trying to keep downtown neat and clean…. I would welcome the opportunity to sit down with the councilmembers in affected districts … before we eat up a lot of staff time. I’m sorry that you had that problem.”

A DBA ambassador tore down this protest flier posted by Carol Denney. This is precisely the type of political speech that is protected by the Bill of Rights.

A DBA ambassador tore down this protest flier posted by Carol Denney. This is precisely the type of political speech that is protected by the Bill of Rights.

But the Downtown Berkeley Association had already heard about the problem as far back as 2012, in letters from me. I had first placed health department stickers in places legal to post, which were left undisturbed by the DBA’s private “ambassador” patrols. I then returned two weeks later with a photographer, a videographer, and fliers with my own political message. The fliers were immediately ripped down.

The DBA ambassadors grabbed my arms in an effort to stop me from replacing the torn-down posters and even called the police, who at least seemed to know that content-based prohibitions on speech are unconstitutional.

I had alerted the Berkeley City Council about the issue — and got no response. I received a letter from DBA staff member Lance Goree, who affirmed that the “ambassadors” were just keeping the downtown tidy, and that only official city communication was allowed. According to Goree, what the DBA’s private patrol was doing was policy.

DBA Ambassador Jamie Bush tears down a flier saying, “Restricted Area—Wealthy People Only.” This kind of political message is protected by the First Amendment. Carol Denney photo

DBA Ambassador Jamie Bush tears down a flier saying, “Restricted Area—Wealthy People Only.” This kind of political message is protected by the First Amendment. Carol Denney photo

John Caner also heard about this issue directly from the East Bay Media Center’s Paul Kealoha Blake, who also spoke at October’s council meeting and has videotape and photos of the poster removal.

John Caner, CEO of the Downtown Berkeley Association, apologizes on October 13, 2015, to a local theater troupe for having his employees rip down legally posted public signs.

John Caner, CEO of the Downtown Berkeley Association, apologizes on October 13, 2015, to a local theater troupe for having his employees rip down legally posted public signs.

 

The most eloquent speakers were from a local theater group who sat patiently through a long zoning adjustments hearing to document their own experience having their fliers removed and were compelling on the point of why it mattered.

The community that appreciates their art and theater work was slowly built to its current strength over the years through patiently putting up fliers, and their group has even had performance spaces opened to them through the poster outreach. They knew their fliers were legal. But it has taken years for at least one member of the City Council to give the matter a listening ear.

I tried to find legal help from local attorneys, since bringing the poster tear-down issue to the attention of the DBA and the Berkeley City Council got no response, but none of them were interested. The issue may look small to attorneys swamped with cases of evictions and the wholesale theft of homeless peoples’ belongings by the police. But fliers are how we organize about those things.

The DBA has over $200,000 of public money and a huge budget of over a million dollars to advertise its point of view. The public pays for the DBA’s website and its shiny fliers. But people on the streets, local political and arts groups, don’t get public subsidies to organize, and fliers are one of the cheapest ways to communicate directly with the public.

It is beyond absurdity that the DBA, representing the wealthiest property owners in town, is taking our money — public money — and paying a private patrol to tear down the posters of poor artists, musicians, activists, and community groups. We’re paying them to tear down our posters.

City Councilmember Jesse Arreguin, whose district includes the downtown area, rushed to imply that a complaint process now exists, and I’m not the only person in the audience that night who winced. Several of us had insisted at Homeless Task Force meetings in the spring of 2015 that only an independent complaint process was workable, given the difficulty many of us had experienced in trying to get assistance directly from DBA staff and supervisors.

Arreguin had agreed at the time. But the crucial word “independent” seems to have slipped out of his vocabulary:

Councilmember Arreguin: “I recall there is a complaint process…”

John Caner: “We have on our website a complaint and compliment process…”

The DBA has a complaint form on its website if you want to complain — to the DBA! Assuming they don’t blow you off or beat you up (as the two homeless men were beaten by DBA ambassadors), you might at least get a letter like the one I received from Mr. Goree telling you that whatever you’re complaining about is either policy or an isolated incident.

The Berkeley City Council can request a copy of Goree’s reply to my complaint about having my posters torn down if they really want the nuance. He insisted that what was happening was just the way things are: The City is allowed to put up fliers, but not the rest of us.

But don’t wait for the Berkeley City Council to hand your rights to you. Don’t wait for the city manager or some lawyer or anyone else, because you may be waiting a long time. A search through the current city policy on fliers is full of ridiculous assertions about how “posters create the appearance of a fragmented and decaying community.”

Your posters and fliers are not garbage. Your artwork is not blight. The expression of your point of view, however different from the powerful business interests controlling downtown and most of the Berkeley City Council, is protected by the Constitution.

If they tear down your poster, do what I did on August 19, 2012. Put up another one. If the DBA ambassadors grab your arms and try to prevent you from replacing the poster, remain nonviolent, but keep putting up the poster. And when they call the police, as they did to me, just keep putting up the poster.

Berkeley isn’t the home of the Free Speech Movement because there ever was any respect here for free speech — quite the opposite. It was the University of California’s and the City of Berkeley’s repression of free speech that sparked the now legendary popular revolt. It’s

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