In response to my email yesterday, Pat Kernighan replied that she, and in her opinion, most of the other council members had voiced opposition to the ongoing encampment. Here is my response:
Thanks for reiterating that you oppose the encampment. However, I indicated in my email that “many” public officials want to openly support the Occupiers. I didn’t say “all.” Notably, Nancy Nadel sponsored a Resolution that was the subject of the long meeting last week. Did you or any of the other council members sponsor a Resolution condemning the encampment, the violence, the blight, the loss to business, the assaults on police, the burden to taxpayers, and demanding an immediate removal of the encampment? No, you did not. Rather, you allowed the Nadel Resolution to be the sole topic of conversation. And many of our elected officials did, in fact, seem supportive of this absurd and overtly illegal Resolution (Ms. Kaplan and Ms. Brunner). And while Ms. Quan didn’t go so far as to endorse the Resolution, she certainly hasn’t taken any action to have the encampment removed, which is, in essence, a move in support of it.
Attached is a link to a blog posting about the apparent (serious?) discussion of moving the campers to alternative locations, including the Rockridge Safeway parking lot, or Woodminster. I sincerely hope that the email prompting this post was a hoax! Please, tell me it was a hoax! The City can’t seriously be considering these locations as an alternative? http://blog.sfgate.com/abraham/2011/11/07/occupy-oakland-update-schaaf-not-in-favor-of-move-plan/
To the extent that the Nadel Resolution is still on the table, and to the extent that the City would be insane enough to consider simply relocating the Occupiers to spread the misery around Oakland, let me emphasize that allowing the encampment to remain ANYWHERE on public space is blatantly illegal. As I have previously indicated earlier, the U.S. Supreme Court held years ago that camping is not protected speech. But regardless of that fact, the Resolution, on its face, endorses a particular viewpoint (I.e. the sentiment of the Occupiers), and proposes allowing the campers to stay indefinitely solely because of the (presumed) endorsement of this viewpoint by the City of Oakland. The Resolution, therefore, on its face constitutes content and viewpoint discrimination, which has repeatedly been denounced by the U.S. Supreme Court in multiple decisions as a violation of the Equal Protection Clause of the Constitution. See Police Dept. of Chicago v. Mosley (1972) 408 U.S. 92; Carey v. Brown (1980) 447 U.s. 455; U.S. v. Playboy Entertainment Group, Inc. (2000) 120 S. Ct. 1878.
“To allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for the political truth.” Consol. Edis. Co. v. Public Serv. Commn. (1980) 447 U.S. 530, 538. And to allow the government to target (or promote) particular views or subjects permits the government to greatly distort the marketplace of ideas. Kenneth L. Karst, Equality as a Central Principle In the First Amendment, 43 Univ. Chicago L. Rev. (1975).
Viewpoint restrictions “pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion.” Turner Broadcast Sys. Inc. v. FCC (1994) 512 U.S. 622, 641. Most recently, the Second Circuit upheld summary judgment against a city for trying to require a $1 million liability insurance policy for a peace rally at a public park, but imposed no such requirement for a group espousing a different “viewpoint.” See Alexandra Coe v. Town of Blooming Grove & Village of Washingtonville (2nd. Cir. 2011).
Applying the law above, allowing the Occupiers to stay, or simply moving them around so that other districts are equally burdened with the blight and crime, or to ensure that their message continues to be “heard,” is blatantly illegal, particularly under the proposed Resolution, which proposes such accommodations for this particular far left-wing group. Are you prepared to offer such accommodations for the Ku Klux Klan, the Tea Party, the NRA, the Right-to-Lifers, or the Prop 8 Supporters? If not, prepare to get sued. And lose.
Today, I was contacted by somebody who was interested in retaining me for this purpose. Unfortunately, I can’t, due to existing conflicts with my regular job, but I’ll definitely try to refer her. By the way, I hope you have checked out the ACLU’s webpage - they already have you in their cross hairs. In the meantime, I urge you to immediately draft a resolution condemning the encampment and demanding its immediate removal.