University of California vs. People’s Park

Nancy Delaney and David Linn

WHEN THE UNIVERSITY of California began building volleyball courts(1) of redwood and beach sand in People’s Park in July 1991, nobody was surprised that many hundreds of oppositionists took to the streets in outraged spontaneous protest.(2) Both the university and the city were well aware of the parks special value and venerability as a counter-cultural center; they made little secret of the fact that their volleyball project was only the latest in a long line of attempts to gentrify the south-campus community.

The fact that the powers that be expected a spontaneous and militant uprising in the area is amply demonstrated by the fact that many dozens of police units, containing hundreds of officers, were called to the scene from as far away as Los Angeles, before a disturbance occurred.

After two years of low-intensity conflict—millions of dollars later—the mainmoth(3) university seeks to prove today by litigation that the entire oppositional movement was the brainchild of four activists conspiring together. The lawsuit, Regents v. David Nadel et al. is, like the volleyball.

construction project itself, and like the activities of many large colleges nationwide, intended to stifle free speech activities by nonconforming popular elements Such a lawsuit, known as a SLAPP action (Strategic Lawsuit Against Public Participation) is a common tool used today by big corporate and quasi-governmental entities to quash dissent The theory goes that by using overwhelming economic resources and frivolous claims to wear down a movement, the movement can be divided, depleted and destroyed.(4)

Criminal Conspiracy?

UC Community Affairs Officer Milton Fujii denies that the People’s Park litigation is a SLAPP suit He claims that it is a justifiable step by the university to stop a criminal conspiracy. Among the overtly “criminal” acts which UC’s complaint alleges that defendants committed in furtherance of the conspiracy are:

• an allegation that a defendant distributed flowers in the volleyball courts;

• an allegation that a defendant correctly predicted that the redwood center poles of the volleyball courts would be chopped down;(5)

• an allegation that defendants spoke at city council meetings against the volleyball court construction;

• an allegation that a defendant distributed cardboard “hand-saws” in the park, and that another defendant waved one over his head;

• an allegation that an unnamed defendant distributed leaflets asking that construction companies refrain from bidding on the construction project.

Naturally the defense contends that most of the university’s “criminal conspiracy” charges come under the rubric of protected free speech activity, and that all of the rest come under the rubric of nonviolent civil disobedience that they may have participated in, but neither planned nor led.

Divide and Conquer

The four named defendants are more noteworthy for their typicality and representativity of the People’s Park movement than for their leadership of it All four deny being leaders but together they approach representing a microcosm of the movement as it existed in the latter half of 1991. They are:

1. David Nadel. Nadel is the owner of the popular Ashkenaz Music and Dance Cafe in West Berkeley, and as such is the only defendant with monetary assets. He is the defendant with the most economically to lose (beside his chains(6)) and it has fallen to him to foot most of the bill for legal defense. Activists speculate that his inclusion in the lawsuit is intended by UC as a deterrent to other dissident members of the petit bourgeoisie who have contributed to the movement in various ways.

2. Bob Sparks. Sparks, who has been active in People’s Park since 1970, may represent to UC the old guard of oppositionalism on southide. During the 1991 park disturbances, the California Highway Patrol broke Sparks’ ribs with their clubs and left him lying in the street. He describes himself as an anarchist in the tradition of Emma Goldman, with strong Spiritual ties to the park.(7)

3. Carol Denney. Folksinger-songwriter Denney earns her living as a church secretary, and may represent to UC the ecumenical element of People’s Park. She had no political arrests before 1991, but showed great courage during park demonstrations that year. She has helped stage art and music happenings in the park, and is one of the more visible women in the movement, in part because of her musicianship. Denney may also have been targeted by UC for her extensive legal-support work, in which she helped get many other activists out of jail. She was recently diagnosed with Hodgkin’s disease.

4. Mike Lee. Lee is an activist of Asian heritage who is of these four probably closest to the itinerant street community which makes up much of the park’s day-to-day population. The transformation of that street community into a large band of anarchists with Internationalist political consciousness such as Lee’s would be the realization of UC’s darkest nightmare for southside. UC’s one-sided war against the poor would thereby be transformed into a two-sided war.

At the height of oppositional movements such as occurred in Berkeley around the park in 1991, these four communities—progressive shopkeepers, progressive church people, established community-based radicals and transient street-activists–were in harmony. Differences in philosophy and tactics become submerged beneath a commonly felt need to act against evil. But powerful entities such as UC can use tools like a SLAPP suit to divide and conquer, to sharpen class and political contradictions between allies.

Some defendants, for example, may feel uncomfortable with the fact that UC will use the more militant pronouncements (and arrest records for various sit-ins, blockades and vigils) of Lee and Sparks against them before a conservative jury, thereby prejudicing their case. And others may feel uncomfortable with the large amount of funds and energy expended on a legal battle that might be better spent on direct action. All four defendants would probably concur with Sparks’ observation that “the main purposes of a SLAPP suit are to drain resources, energy and time, to strain personal relationships, to scare supporters off and to create negative publicity This, of course, takes its toll on one’s health, home and community stability.”

Practical Effects and Lessons

What are the tangible stakes in Regents v. Nadel eta!? The university’s lawsuit seeks both monetary damages and an injunction. The monetary damages are a threat mainly to Nadel since they are, from a practical standpoint, enforceable only against him. With one major exception, the proposed injunction forbids only acts, like vandalism, that are already illegal. For most of the movement, the real stakes of the SLAPP suit lie in this exception, which is the injunction’s threat to user-development of the park If UC were not attempting to enjoin user-development, the lawsuit would probably be settled.

Much of People’s Park current and historical value lies in the fact that it is a community-developed park, created not by the government, but in spite of it. Although the university bulldozed the original user-developed park in the riots of 1969, the community took the park back, and recreated it, in 1972.

In 1979, the parking lot on the west end was turned into a garden, and a university agreement with the user developers ratified this even after the fact; in 1981. Although the university consistently destroyed swingsets and public bathroom facilities built by the community in the 1980s, it eventually ratified (also after-the-fact) the creation of a sound-stage,(8) a free-box, a bulletin board and various gardening projects.(9) The proposed injunction in Regents v. Nadel would forbid the four named defendants (but nobody else) from bringing tools or construction materials to the park, as well as from creating any new user-developed projects in the park.

While the four diverse defendants prepare, with whatever degrees of cooperation and acrimony, for their September trial against the litigation behemoth(10), others continue through the summer of ’93 to commit acts of resistance to the university’s plans to ultimately destroy the park, including material attacks upon the still unpopular and much reduced volleyball courts. These acts of resistance tend to be spontaneous, leaderless and conspiracy-less. While activists may differ on the most effective response to SLAPP suits, few would dispute the importance of not forgetting what one came to do in the first place.

For further information, or to contribute to legal defense, write Ashkenaz Defense Committee, 1317 San Pablo Ave., Berkeley, CA 94702; call 510-525-5054.

Notes

1. The volleyball construction project was part of UC’s Long Range Development Plan (LRDP) for expansion through the year )05, first released in 1989. It includes forty major land-acquisition and construction projects in Berkeley. People’s Park was one of several local historical landmarks slated for destruction under the LRDP.
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2. The People’s Park site was acquired by UC in 1967 under an earlier LRDP, at a time when the area was used by hippies, bohemians and activists students for low-income housing. Under the pretense of intending to build dorms, UC acquired the land by eminent domain, destroyed the homes and let the land lie fallow for two years until the community built a park there. In the complaint filed by UC in 1991, the university finally admitted that they never had an intended use for the park site. Activists contend that since UC used a fraudulent eminent domain action to acquire the site, its title to the park is now in serious doubt.
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3. The combined enrollment of UC’s nine campuses makes it the largest institution of higher learning in the United States, and the second largest in the world. It has the largest budget, by far, of any educational system anywhere. The Berkeley campus is the largest employer in Alameda County, and many local judges are either alumni of the system, or are otherwise economically beholden to it. In some senses, Berkeley is a company town.
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4. University of Denver Law Professor George Pring and Sociology Professor Penelope Canan were among the first to identify the elements of SLAPP suits, and have confirmed that Regents v. Nadel appears to be one. Academics have also identified the use of SLAPP suits against environmentalists attempting to save Northern California’s first-growth redwoods, against the League of Women Voters in Beverly Hills trying to stop runaway development, against the TV show 60 Minutes for an anti-pesticide piece, and even against a Texas citizen who wrote a letter to the editor complaining about a nearby landfill.
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5. Alameda County’s elected sheriff, Charles Plummer, upset about UC’s request for county help in guarding the volleyball courts, also correctly predicted the demise of the center posts. Plummer was not named a defendant in the action.
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6. Nadel is accused of chaining himself to a tree to delay volleyball construction.
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7. Sparks once fasted for forty days in the park in support of aboriginal land rights.
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8. The university wanted to destroy the stage in 1987 but was enjoined from doing so in a court action that year. The original volleyball construction plans of the LRDP also involved destruction of the stage, in violation of the injunction. The stage still exists in usable form, thanks to community pressure.
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9. In a well-publicized photo opportunity of the late 1980s, Berkeley mayor Ilona Hancock helped dig the foundation for one of the community bathroom projects that the university later bulldozed. In 1992 the city, with university blessings and some community opposition, built a combination bathroom and de facto police substation in the park.
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10. The university’s counsel includes the 130-lawyer firm of Crosby Healey Roach & May, plus a large undisclosed number of in-house counsel. Denney and Nadel share the counsel of community-activist attorney Dave Beauvais, while Sparks has hired personal-injury lawyer Michael Sorgen. Mike Lee represents himself at this time, although he may associate counsel prior to trial.
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September-October 1993, ATC 46