The Berkeley City Councils January 29 decision to ask Marine recruiters to get out of town as univited and unwelcome intruders and to give a group protesting the Marines presence a free sound ordinance permit and parking space in front of the recruiting office is arousing the predictable reaction from everyone who does not blame the Marines for the Iraq war. Some of the reaction is pre-Cro-Magnon, some is as mis-targeted as the street protest, and some is informative and noncommittal.
But none so far has mentioned the constitutionally suspect material support provided the protesters at the councils direction. At the request of two council members, the body approved
the waiver of a sound permit ($36) every Wednesday from 12:00 pm - 4:00 pm for the next six (6) months (February 6, 2008 - July 30, 2008) and designate one (1) parking space on Shattuck directly in front of the Military Recruiting Station at 64 Shattuck Square for Code Pink. It is recommended that Council approve the permanent tagging of the one parking spot and designate it with signage "No Parking from 12:00 pm - 4:00 pm every Wednesday, for six (6) months from approval of this request, and that Code Pink be allowed permission for one table and chairs that may not obstruct the 10-foot access for public-right-of-way.
It is settled law that, as the California Supreme Court observed in Stanson v. Mott, 17 Cal. 3d 206, 219, the First Amendment precludes the government from making public facilities available to only favored political viewpoints; once a public forum is opened, equal access must be provided to all competing factions.
The only way to invoke this principle squarely would be to have a group supportive of the Marine recruiters, for example, apply for the same waiver and space license at some time other than the Wednesday afternoon period. If the council refused the application it would be open to a civil rights lawsuit in which the council members could be personally liable in damages, in addition to the citys exposure to a court order to grant the application for at least the same period of time granted to Code Pink.
Meanwhile Mayor Tom Bates (pictured in the pink beret) and the other council members who voted the special support for the recruiter-bashing should be sent to their rooms and not allowed to play outside until they have read two booksby a conservative and a liberal, respectivelythat make the fundamental point: Nat Hentoffs Free Speech for MeBut Not for Thee (1992) and Anthony Lewis's just published Freedom for the Thought That We Hate.