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Proposed Laws Regarding Noise, Sidewalks Spark Fears Of First Amendment Abuse

By Judith Scherr
Thursday September 18, 2008 - 09:20:00 AM

Some two dozen people, including street preachers, homeless advocates and union activists, came to Tuesday’s Berkeley City Council meeting, the first of the 2008-2009 session, to condemn proposed noise and use-of-sidewalks laws they said would limit free speech. 

The council voted unanimously to delay action on the laws and to hold a workshop on the question. 

One of the proposed laws would regulate placement on the sidewalk of “objects used for noncommercial expression.” The applicant would have to get a permit from the city’s traffic engineer in order to place objects such as books, printed literature, CDs, DVDs, posters, bumper stickers and buttons on the sidewalk. 

The purpose of the law, says the draft ordinance, “is to balance the public interest in free speech with the public interest in attractive, safe and accessible sidewalks and a vital and sustainable local economy, by permitting distribution and display of goods or objects that are inextricably intertwined with noncommercial expression, but limiting the type of such goods to those that themselves essentially constitute speech and do not unduly interfere with other public uses or the general aesthetic appearance of the sidewalk.” 

The second law in question relates to amplification of music and speech. It continues to limit amplified sound with a permit to 65 decibels, but adds a complaint process to the mix. It also limits noise permits to nine for a given public space over the course of one year.  

Councilmember Max Anderson expressed alarm, asking whether the laws might violate the First Amendment. “Did you seek input from the ACLU or Meiklejohn [Civil Liberties Institute]?” he asked. 

Staff said they had not. 

Lawrence Rosenbaum and others from SOS Ministries—the group that has been preaching and singing with amplification on Telegraph Avenue for some two decades—addressed the council, saying he thought his group was targeted by the ordinance. 

“It appears to make our Christian outreach impossible,” he said. “It’s designed to stop our Christian outreach.” 

Business owners, employees and residents living and working near the Telegraph Avenue and Haste Street site, where the group sets up almost weekly, have complained about the noise and petitioned the council to take action. 

Labor activist and author Harry Brill said the new restrictions on amplified speech—which include requirements of a permit for the use of bullhorns—would affect labor rallies, such as the months-long picket at Berkeley Honda.  

“It abolishes the community’s right to be heard,” he said. 

Civil rights activist and homeless advocate Michael Diehl asked the council not to pass the ordinance that night. “It’s a lousy public process,” he said. “The public did not know about this.” 

Only representatives of the business community spoke in favor of the draft ordinances. 

Deborah Badhia, executive director of the Downtown Berkeley Association, said demonstrations at the downtown Marine Recruiting Center have disturbed adjacent businesses.  

“With the current economy, the businesses are more fragile than ever,” she said. “Amplified sound has a huge impact on businesses.”  

Speaking in favor of a strong noise ordinance, Roland Peterson, executive director of the Telegraph Avenue Business Improvement District, called for a “meaningful complaint policy [with] enforcement that has teeth.” 

No date has been set for the council workshop on the ordinances. 


Other items 

At Tuesday’s meeting the council also:  

• Unanimously adopted the formation of a “Sustainable Energy Financing District” with a ceiling of $80 million in indebtedness. This will allow homeowners to borrow funds to install solar panels—or other energy-saving devices in a second phase—and pay for the devices over 20 years through their property taxes.  

Opting into the district and borrowing the funds is voluntary. Staff is continuing to look for a financial institution to partner with and to work out the details of the proposal.  

• Appointed Councilmember Gordon Wozniak to the Waste Management Authority, despite criticism by some 20 people who came to the meeting to support the appointment of Councilmember Kriss Worthington to the post, left vacant by the death of Councilmember Dona Spring.  

Worthington is the alternate to the waste authority. Councilmembers Laurie Capitelli, Linda Maio and Darryl Moore all said they were also interested in the appointment. The vote was 6-1-1, with Worthington voting no and Councilmember Max Anderson abstaining. 

• Unanimously approved a calendar for 2009 with 22 city council meetings. 

• Unanimously approved a contract with the city’s service workers for a 13 percent raise over four years; the contract includes the part-time recreation workers and gives a 3 percent bonus to workers with the city for 25 years or more. 


Stanton Street pavement 

Gregory Harper, an attorney who lives on Stanton Street between Ashby Avenue and Prince Street, brought letters from his neighbors complaining that his street had not been paved since 1976 and did not appear on any list of streets to be paved in the future.