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The upcoming celebration planned for a local arts icon has Berkeley city officials scrambling to avoid a potentially embarrassing free speech controversy. 

Late last month, Acting Manager of Economic Development Thomas Myers turned down a request from the Berkeley Symphony Orchestra to hang 30 banners in the downtown area commemorating the 25th anniversary of Kent Nagano as symphony conductor. The request was made in conjunction with the Downtown Berkeley Association, and would have temporarily replaced banners currently hung by the association. 

The anniversary celebration concert is scheduled for Sept. 29. The banners would read “Berkeley thanks Kent Nagano for 25 years,” and would include a picture of Nagano and a small replica of the Berkeley Symphony Orchestra logo. The symphony’s name would not appear on the banners. 

Regardless, Myers said that “an effect of the [Nagano] banner[s] [would be] to market and promote the Berkeley Symphony Orchestra and Mr. Nagano,” which he said was contrary to a Berkeley city policy that “prohibits [the hanging of banners in public places] to promote private activities or organizations.” 

That brought a quick proposal from Councilmember Dona Spring to change city banner policy to allow the Nagano banners to be hung, along with a pointed note that “the City of San Francisco has a much more liberal policy with regard to banners in the public right-of-way. … [P]erhaps the City Attorney’s office can check with the City of San Francisco regarding this matter.” 

Spring did not return calls requesting a comment for this story. 

At the Sept. 2 Council Agenda Committee meeting, Mayoral Chief of Staff Cisco De Vries tried to get Spring to pull the item from the Sept. 9 agenda, saying that he had worked out an arrangement in which the banners could be hung without changing existing city policy. But Spring, who participated in the Agenda Committee meeting by telephone conference call, said she preferred to hold the issue on the agenda until an agreement had actually been reached, and the executive director of the symphony said later that while he was hopeful an arrangement could be worked out, he was not aware of the details. By mid-week, the issue had been moved to the Sept. 16 Council agenda. 

De Vries insists that a compromise is close at hand. 

“City policy says that banners can only be hung to advertise city-sponsored districts or events,” De Vries said, explaining that there is a distinct difference between an event that the city “sponsors” and one that it merely “endorses.” “The Symphony is a private organization; it’s not the city,” he continued. “But if the city were to hold an event for Nagano in conjunction with the Symphony’s celebration—say, a reception where we present a proclamation—that would constitute an official city event, and the banners could be hung.” 

Symphony Executive Director Gary Ginstling said it’s up to the city to decide what compromise would be acceptable in order to hang the banners. “If sponsoring an event is what they think is suitable, then we’ll support it. If they want to have musicians to play, we’ll provide musicians to play. If that’s what it takes for them to give permission to put the banners up, I just hope it happens sooner rather than later.” 

De Vries said that he was cautious about writing loopholes into the banner policy for specific events or organizations, warning that the practice could lead to unintended consequences. 

Such a consequence was suffered last year by the California Department of Transportation. When the department allowed American flags to be hung from freeway overpasses as a statement of patriotism following the Sept. 11 terrorist attacks, two Santa Cruz women hung an antiwar banner reading “War. At What Cost? $200 billion. 10,000 dead.” When police had the banner removed, the two women sued in federal court where and a federal judge ruled—and the 9th Circuit concurred—that the Department of Transportation could not selectively decide which political sentiments could be hung from overpasses and which could be not. The Department of Transportation eventually had all flags and banners removed from freeway overpasses. 

A quick survey of city banner ordinances around the state showed that Berkeley’s was among the more restrictive. San Francisco allows banners for “any non-profit, cultural, promotional or civic organization located in San Francisco,” and allows logos on the banners. San Jose only requires that banners be non-political, with no private or commercial advertising. San Diego allows street banners “to promote cultural or civic events, or activities of general public interest,” and only prohibits banners that are “political or religious in subject matter” or those “used for advertising a specific product or corporate entity.” 

Los Angeles has perhaps the most liberal of all of the state’s city banner policies. Revamped in 1999, the policy allows banners for community events, charitable events, non-profit events, city events, and “public service or civic announcements or recognition of the existence of the diverse neighborhoods throughout the City of Los Angeles.”