Local critics of an affordable housing project in Berkeley won an impressive victory recently when a federal court judge ruled in a summary judgement that the Department of Housing and Urban Development violated their first amendment rights by threatening them with fines and prosecution for voicing their opposition.
"The first amendment is not very popular when you get right down to it," commented Richard Graham who, along with neighbors Joe Deringer and Alexandra White, were targeted as vocal opponents of the project on the grounds that their objections violated the Fair Housing Act. The complaint against them, filed by a housing rights group, was sustained by local officials in San Francisco, who offered not to prosecute them if they would cease speaking and writing on affordable housing issues.
Graham credits Oakland Tribune writer Bill Brand for being the only local writer willing to cover the initial story, coverage which eventually led to interest from CNN, the Wall Street Journal, and 60 Minutes. But most local reporters and politicians avoided the controversy; opposing a housing project was politically perilous, and supporting the project's opponents' free speech rights was further than most politicians and reporters were willing to go.
Former Assistant Secretary of HUD Roberta Achtenberg dropped the complaint against Graham, Deringer, and White at the Washington level in 1994, issuing a policy statement urging HUD officials to respect the free speech rights of project opponents. But the damage was done, according to Graham, who remembers the project's neighborhood critics being threatened with a lawsuit at the first public hearing in front of the Berkeley City Council. When asked if the HUD investigation "chilled" his sense of freedom to speak, he answers "absolutely," and says his neighbors were intimidated as well.
The group pressed on in court with the help of the Washington, D.C.-based Center for Individual Rights, buoyed by support from similarly targeted groups all over the country who felt that a HUD policy change, although a significant victory, was not enough. U.S. District Judge Marilyn Hall Patel apparently agreed, issuing a strong ruling last month that four HUD officials are liable as individuals for "chilling" the residents' First Amendment rights, including the right to petition the government.
Berkeley and free speech are synonymous in the popular imagination, an imagination which often forgets that it was the repression of First Amendment rights on campus in 1964's free speech movement which created the association in the first place. A majority of Berkeley voters supported an unconstitutional anti-panhandling law in the 1994 elections, and anyone who has tried to express an original, perhaps unpopular perspective at a public hearing knows firsthand how loathe both ends of the political continuum are to simply allow the illustration of a different point of view. The University of California sued four community activists in 1992 (including this writer) for a quarter of a million dollars for speaking out against its plans for People's Park, a suit which continues today to threaten those who might be inclined to express critical views of the university's policies. Blacklisting and SLAPP-suits (Strategic Lawsuits Against Public Participation) continue to be part of the local landscape.
Patel's ringing decision on behalf of Graham, White, and Deringer gives observers an opportunity to reflect on the value of an unfettered public debate. At least one housing official has conceded that the criticisms and suggestions from the neighbors played a role in improving what is now a successful housing project, which implemented the neighbors' on-site social services suggestion, a priceless irony since HUD supported the same concept over the city's objection. Graham sits on an advisory board for the project, stating that "it hasn't been a bad scene at all" in a neighborhood which has had its share of trouble.
But the larger value of dissent is broader than improving any one project. The tendency toward conformity in any community engenders as much weakness as strength. The critical voice may be the only key to that weakness and its eventual repair.
What is the state of free speech in Berkeley? The lack of local coverage of Graham, White, and Deringer's recent victory suggests that for many, the right to express one's opinion depends on its content. No community is healthy unless it is capable of creating a climate in which the original, unusual, perhaps unpopular point of view is equally honored.
Carol Denney is an administrative assistant with Senior Medi-Benefits and a contributor to "Survival Guide for SLAPP Victims" published by the California Anti-SLAPP Project and the First Amendment Project.