More Speech, Not Enforced Silence

By Becky O’Malley
Friday February 08, 2008

Sorting out the controversy over the Marine recruiting station will be a long and tedious job, but bear with us, please. 

First, free speech.  

There’s the U.S. Constitution’s guarantee: “Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Subsequently that language has been interpreted to cover government in general, right down to the Berkeley City Council, and similar guarantees have been added to state constitutions, including California’s. Courts have held that it’s OK to set rules regarding the time, place and manner that the right of free speech can be exercised, but the content of speech can’t be regulated.  

Technically, the Berkeley City Council hasn’t done anything to violate these First Amendment guarantees as regards the federal government, the Marine Corps or the individuals who are representing them in the office they’ve rented in downtown Berkeley. The Marines are still there, they’re still saying whatever they please. But what about those who disagree with them? 

Those who piously invoke the tradition of Berkeley’s Free Speech movement on behalf of the Marines have a point, sort of. We’d like to ask the Berkeley City Council and its critics to repeat after us, one more time: “The best remedy for speech you disagree with is more speech.”  

Or, in the more eloquent words of Justice Brandeis: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” (Whitney v. California 271 U.S. 357 [1927]) 

Simply stated, even if you think the Marine recruiters are wrong, dead wrong, they should be allowed to speak, but you should be able to speak up to correct them. And it’s quite appropriate for any government agency, even the Berkeley City Council, to make sure that there is a suitable time, place and manner for dissenters to petition the U.S. government as represented here in Berkeley by the Marine recruiters. 

The paper formerly known as SF’s Major Metropolitan Daily (hereafter the ex-MMD) indulged in a self-righteous editorial on the topic on Wednesday: “While playing up arguments of free speech and organized protest, the council has loaded the deck with insulting language that denigrates the military and embarrasses the anti-war cause. The motion approved by the council includes a number of remarkable statements: ‘The United States has a history of launching illegal, immoral and unprovoked wars of aggression’ and ‘The military recruiters are sales people known to lie to and seduce minors.’ ” 

Well, those two statements might or might not be prudent, but they’re certainly true. Examples for the first one: the Spanish-American War, the Vietnam War, and yes, increasingly obviously, the war in Iraq.  

And I myself can testify to the second one, since I personally snatched a young man, the grandson of a dead friend, away from a dishonest U.S. Army recruiter who’d set up shop in Eastmont Mall. The recruiter clearly lied, consistently and boldly, to the boy, his mother and to me about the “contract” he claimed the kid had signed, and only backed down when I caught him at it, said I was an attorney and threatened legal action.  

If anyone, including the editorial writer, needs more information about what happens to Marine recruits, they should check out the long investigative article by Kathy Dobie in the Feb. 18 issue of The Nation: “Denial in the Corps: A stressed-out Marine Corps sends its troops on repeated tours in Iraq—and then tosses them out when they come back traumatized.” Or they should listen to the many pieces on National Public Radio by Danny Zwerdling and Ari Schapiro about how badly this country treats veterans. Recruiters don’t usually tell their targets about what will happen to them after they serve.  

So let’s not have any pious platitudes about not denigrating the military recruiters. Members of the armed forces are often courageous and self-sacrificing in battle, true, but recruiters often lie. And the Berkeley City Council doesn’t need to be embarrassed about telling it like it is.  

But back to free speech: the idea of zoning the recruiting office out to the edge of town, proposed but not adopted by the council, is a bad one. It does violate basic concepts of free speech, if not the letter of constitutional law. The recruiter who went after my young friend was almost able to get away with it because his office was in a place where kids hang out but adults seldom go. Right in the middle of downtown Berkeley is the ideal place for recruiters to exercise their free speech rights, because that’s where there are people around to keep an eye on what they’re saying. It’s the ideal place for those who criticize military propaganda to set up shop to deliver some counter-speech when needed. 

Some councilmembers are furiously backpedaling at this point, away from what does seem to be a public relations disaster. From a PR perspective, the episode is this week’s candidate for the Planet’s “What Were They Thinking” award. Betty Olds and Laurie Capitelli have attached their names to what’s known in the trade as a repealer: “what we really should have said is...”. Olds, Gordon Wozniak and Kriss Worthington took exquisite care not to vote for the—shall we say—ungracious language in the first place, not that most of the press noticed.  

No one else on the council seems to have been paying attention in Sunday School when the maxim “hate the sin, love the sinner” was discussed. There’s no doubt that each and every councilmember believes that the current war in Iraq is a major mistake, but also that all of them without exception want only the best for those stuck with fighting there. It just didn’t come across that way in the media. This is partly the media’s fault, of course, since the ex-MMD and its would-be rivals are always eager to construct the boilerplate Berzerkely story from any raw material, so much easier than accurate reporting of who said what.  

(The ex-MMD in its confused editorial even got one of the councilmembers’ names wrong in print, though corrected on the Internet. Betty Olds was mistaken for Sharon Olds, no relation, an excellent poet who happens to come from the Berkeley area. We might need more poets on the council, but Sharon Olds moved away years ago.)  

But Wozniak, who voted no on everything, doesn’t seem to get the free speech idea. He said in a letter to his District 8 constituents: “I opposed the second [resolution] because, I felt that the Council favored the antiwar group by giving it a free parking space and sound permit to facilitate their protesting directly in front of the Marine recruiting center. Code Pink has the right to protest, but not directly in front of the Marine center, where visitors can be intimidated.” 

No, no, no. If it’s going to work, free speech needs a level playing field. If the federal government rents an expensive downtown office for its recruiting effort, the least the local government can do is make sure that those who want to petition the feds to stop recruiting for an unjust war have equal time right out there in front. 

But that doesn’t necessarily mean free parking for Code Pink, a gesture which has been widely misinterpreted and caricatured. A much better solution would be to set up some kind of Hyde-Park-like Speakers’ Corner where all opinions can be heard, very close to the office which is being protested. It’s possible that the special parking space was intended to supply this need, but it shouldn’t be reserved for a single organization whose tactics might be too dramatic even for some who agree with them. Just allowing a card-table on the sidewalk to be staffed on a rotating basis during business hours by members of Berkeley’s many indigenous anti-war organizations would do the job without feeding the negative publicity apparatus which is ever eager to jump on Berkeley. 


—Becky O’Malley