Public Comment

Commentary: Berkeley Rejects First and Fourth Amendments

By Janet Weiss
Thursday May 08, 2008 - 10:32:00 AM

The Berkeley High Warm Pool is under siege from many fronts. Although the gym is registered on the state and federal registries of historic landmarks, the Berkeley Unified School District is still slated to tear down the pool. Swimmers have been working with the City of Berkeley for nearly a decade, but we have been told that there are no funds to build a new pool.  

Now we have a under siege from another quarter—from the Department of Parks and Recreation itself. Last December all of the notices and newspaper articles that we had collected and posted on the walls were ripped down and we were told that we could not post any materials without it first being approved by the department. 

In response to this I posted a 6-foot by 9-foot sign indicating that our First Amendment rights did not end when we entered the pool and advised swimmers to call both Scott Ferris and Rosemary Fonseca to voice their opposition. 

I thought that this had been straightened out. 

Imagine my surprise when, on April 24, I was forwarded an e-mail from Philip Harper-Cotton indicating that as of May 8 the department would be requiring our swimmers to “sign in” on a city-provided release form before entering the pool, and that they wanted all participants to fill in an emergency card on a yearly basis, so that they have all pertinent emergency and medical information on as many swimmers as possible. 

In other words—these two edicts now threaten our civil rights as well as our access to the pool. We feel that this new policy is an invasion of privacy and violates the Fourth Amendment. In case the department is unfamiliar with the United States Constitution or the Bill of Rights I have brought copies for them.  

First Amendment: “Congress shall make no law . . . abridging the freedom of speech....” 

If there is one right prized above all others in a democratic society, it is freedom of speech. The ability to speak one’s mind, to challenge the political orthodoxies of the times, to criticize the policies of the government without fear of recrimination by the state is the essential distinction between life in a free country and in a dictatorship. 

The One Warm Pool Advocacy Group, relies on postings on the bulletin board to communicate with other swimmers about our advocacy efforts, our meetings, and our future strategies for keeping the pool open. We cannot allow the department to censor us. They may not like our positions or our agenda, but that is what free speech is all about. We sometimes have short timeframes as to when we need people to show up at public meetings, and can’t wait for someone in management to determine, with no criteria that has ever been established, whether they are going to allow us to post our information. We need to put this issue to bed once and for all. 

The privacy issue is perhaps even more important to us. The relevant law is as follows: 

Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”  

Privacy, in its modern meaning, is very much related to individuality, and is a right of the person, not of the group or the society. Privacy, like most rights, relates directly to democracy. 

The makers of our Constitution undertook to assist the pursuit of happiness. They conferred, as against the government, the right of individuals to be let alone—the most comprehensive of rights and the one most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. 

Medical information has long been held to constitute a seminal privacy issue. When the department asks for private and medical information, it does not indicate why it needs this information, how this information will be safeguarded nor who will have access to it. 

We fail to see how acquiring our private data will assist the department in any way in provided first aid, CPR or assist them in dialing 911. 

In addition to being unnecessarily intrusive, it is data that can potentially be misused to our disadvantage. Once a database is created, it is almost impossible to maintain total security over it.  

People are worried that “Big Brother” will know too much about them, and use that information to their detriment. But as much as we are worried about government, we are also worried about threats to our privacy when this information is disseminated in ways that we have not been told or approved of—from other governmental agencies, from persons unknown or even from criminals who may use information collected in any manner—quasi-voluntary or coerced, to harm our interests. Or prey on us because of information gleaned from our medical history shows that we are vulnerable. 

Demanding this information from these swimmers is also discriminatory. Other properties under the Parks and Recs department are also potentially high risk—such as the skate park, the dog run—even municipal buildings. And yet it is only swimmers that are required to provide their private information. 

Finally—exactly what are we being asked to sign? Is this a total waiver of all of the Department’s obligations to us? If so, why go to the expense of hiring lifeguards? This needs to be examined carefully. 

Just because we represent the downtrodden does not give the department leave to trample upon our civil rights.  

I presented this information to the Parks and Recs commission on April 28, but they chose not to take any action. I am hoping that the Berkeley City Council will provide the appropriate action to stop this egregious action before it is implemented. 


Janet Weiss is a user of the warm pool.