Inside Oakland bubble, all free speech isn't equal

 

By Debra J. Saunders
SFGate.com

For all their whining about the "police state" and the city's failure to respect their "First Amendment rights," Occupy Oakland activists have managed to flout the law with regular impunity. Somehow demonstrators have managed to turn Frank Ogawa Plaza into a tent stew and shut down parts of the city in a so-called general strike Nov. 2, and still they think they're victims who have been deprived of their free speech rights.

But if they want to see what it's really like to fight City Hall, they should talk to Walter Hoye. Hoye's offense was to walk up to people with a sign that said, "Jesus loves you and your baby. Let us help." For that he was arrested twice in 2008 and sentenced to 30 days in jail.

The difference here is that Hoye wasn't peddling some amorphous grievances that might be addressed with higher taxes and more government. Hoye's sin - pardon the expression - is that he opposed abortion.

Please note: Police did not arrest Hoye for blocking access to reproductive health clinics. It's always wrong for one group, in the name of free speech, to infringe on the rights of others. And it's a federal crime for anyone to injure, intimidate or interfere with women seeking reproductive health care services. The penalty can be as high as six months in prison and a $10,000 fine for a first-time nonviolent offense.

But that's not tough enough for Oakland. In 2007, the City Council passed an ordinance that created a "bubble" around reproductive health clinics. In the bubble, it's an offense to approach a woman entering a clinic without her consent. The measure actually banned "counseling."

Oakland passed the "bubble" bill, argued Hoye's attorney Katie Short of the Life Legal Defense Foundation, because the City Council had a problem: Hoye wasn't violating any existing laws, so they created a new one.

Later, Oakland tweaked the ordinance to make it appear even-handed. Problem: Oakland police required Hoye to wait for consent before he could talk to Family Planning Specialists patients. There was no such requirement for pro-abortion volunteers - escorts who don orange vests and stand between antiabortion activists and clinic patients. A three-judge federal panel that included the famously liberal Judge Stephen Reinhardt ruled that Oakland did not apply the law in a neutral manner.

"Throughout our nation's history, Americans have counted on the First Amendment to protect their right to ask their fellow citizens to change their mind," U.S. District Judge Marsha Berzon wrote. "Abolitionists, suffragists, socialists, pacificists, union members, war protesters, religious believers, civil rights campaigners, antitax activists, and countless others have appealed to the principle, enshrined within the First Amendment, that in a democracy such as ours, public debate must be robust and free and that, for it to be so, the Constitution's protection of the freedom of speech must extend to the sidewalk encounter of the proselytizer and his prospective convert."

Berzon wrote that there has been no suggestion that Hoye "engaged in any physical obstruction or violence" or even rough language. Yet Oakland arrested and prosecuted him, a jury convicted him, and he served his time in a county jail in 2009.

City Attorney Barbara Parker noted that courts have upheld the ordinance itself. Parker maintains, "It's the same bubble for everyone" - protesters and escorts. She believes in applying the law equally and "respecting public safety, public health and the property rights of everyone."

I don't buy it. Mayor Jean Quan's husband and daughter participated in Occupy Oakland protests. In October, when police removed the tents, Quan invited activists back - and soon there were more tents in front of City Hall than before the police moved in. City Council members embraced the encampment from the start.

Until campers wore out their welcome, City Hall and Occupy Oakland happily resided inside the same bubble.

John Russo, city attorney at the time, also - wrongly I think - defended the "bubble" bill as politically neutral.

Russo, however, scoffed, "The minute they pitched tents, they were in violation of city regulations. ... If it had been 120 tents from the NRA, right-to-lifers, the Boy Scouts, that would not have been tolerated."

I asked Hoye how he feels when Occupy Oakland protesters complain that they are victims whose free expression has been suppressed.

"I don't think they really know what being treated unfairly is," he answered. "I didn't see any of the kind of leniency that they received."

And: "Thank you for thinking of me. People have asked me about that."

E-mail Debra J. Saunders at dsaunders@sfchronicle.com.