Saturday, February 22, 2003

Chalking trial of Becky Johnson in Santa Cruz (2003)

Human Rights abuse in itty-bitty Santa Cruz [link]
Santa Cruz attacks "Food Not Bombs" and other Human Rights advocates [link]

2003-02-22 "Hopscotch Rebellion" 
by Becky Johnson []:
BECKY JOHNSON’s Chalking trial is scheduled for March 14, 2003 in Department 1 at 10:00 AM in the court of Commissioner Irwin Joseph at the Santa Cruz County Courthouse, 701 Ocean St. Santa Cruz, Ca.
I am accused of committing the crime of defacing the sidewalk when I used chalk on the sidewalks of Pacific Ave. in Santa Cruz on July 21, 2002. The ordinance in question, written in 1964, is not clear regarding the issue of chalk writing and the City cannot prove that the ordinance has ever been used against chalkwriting prior to the year 2000. In fact, when I requested 34 years of records, the police only provided me with one month’s worth of records. The Santa Cruz Police Department claims they have destroyed all records prior to January 2001, according to a February 13th memo from the SCPD records department. Only two months before, they told me they only had 10 years of records. (Click here to see photos of Becky’s arrest and chalking [].)
My activities were constitutionally protected acts of free speech and the City had no compelling government interest which overrode my first amendment activities which include speech, written materials, and non-destructive temporary messages.
City Attorney John Barisone disagrees. In a brief filed February 15, 2003, the City says “that the City does have a significant governmental interest illustrating the pervasive and deleterious nature of the graffiti problem in the City’s central business district.” The City claims it it is responsible for “preserving an aesthetically pleasing and economically viable downtown.” Citing the Broken Windows Theory as a source, the City found that “unless graffiti, applied by any medium, is immediately abated the problem will increase exponentially in a very short period of time thereby transforming a moderately damaged are into a substantially degraded area with a higher crime rate and depressed economy,” Lt. Sapone was less subtle. “It’s an eyesore,” she said.
Chalk lines are the easiest, least expensive, least damaging, and most reasonable method to communicate. Since chalk is made of crushed seashells and vegetable dyes, its not a hazard for the Monterey Bay, where it will eventually arrive. Compared to tagging with a permanent marker, chalk is light years milder. On July 21st, I chalked specific extremely time-sensitive information which the entire community had the right to know — information which the public had been prevented from knowing and which was to be voted into law 48 hours later.
I believe that I am being prosecuted more for who I am and for the content of my speech. Hopscotch is not some great harm to society leading to bedlam, the decline in property values, and loss of revenue to the City. Indeed chalk festivals are considered a boon to business generating crowds at minimal expense. At my previous trial on September 13th, 2002, SCPD Sgt. Jack McPhillips, Redevelopment Agency anaylst Julie Hendee, and City Attorney John Barisone in his briefs revealed that the City of Santa Cruz utilizes and emulates the model of policing based on the Broken Windows Theory.
Broken Windows in not about crime. Even the authors of the first 1982 version admitted five years later that they had no evidence that utilizing police methods where very minor “quality of life” citations are used selectively against those who “don’t belong” reduces crime. It is only a way to create the appearance of order and has no statistically relevant correlation to crimes against property or acts of violence.
In other words, if I piss on a sidewalk, I’m not likely to rob a bank. None the less, Cities across the nation including Santa Cruz have adopted this model. Both the Santa Cruz Redevelopment Agency and the Santa Cruz Police Department use the Broken Windows Theory in their pattern of enforcement. Even Mayor Emily Reilly was unaware of this. And this is an unconstitutional manner of police enforcement for it violates the 8th amendment which offers equal protection under the law. For under Broken Windows — a police officer looks up and down his beat and looks for people who belong, such as shop owners, residents, and shoppers and he looks for those who don’t belong. Those who don’t belong get cited for sitting, lying down, or for any one of dozens of ordinances which are all victimless “crimes” for homeless people but just ordinary behavior for the shoppers and the tourists. Somehow people who “don’t belong” tend to be people of color in the wrong neighborhood, young people, people who are living alternative lifestyles, poor people, homeless people, and political activists.
I would put myself in that latter category. But please, do not assume that because I am a homeless activist that I was committing civil disobedience. For I know what civil disobedience is, and this was not the case. I genuinely believed that chalkwriting, due to its impermanent and non-destructive nature and lack of environmental impact was a legal activity if conducted on a public sidewalk. I had plenty of reason to believe this. First, I have been chalking at various events for years, often in front of police officers, and have never so much as received a warning, much less a citation or an arrest. Second, I have read the McKinney decision in Berkeley where not only was the chalker found not guilty, but the City of Berkeley ended up paying a large settlement to the person arrrested. In that case as part of the written decision of the 9th circuit court it states “No reasonable person could think that writing with chalk would damage a sidewalk.” Third: I knew that political messages written with chalk do have constitutionally protections of free speech, provided their is no significant government health or safety interest.
Likewise in People vs. Johnson/People vs. Rinker City Attorney John Barisone argued that in One World, supra, 76 F. 3d at 1012 allows the city to ban giving away tee-shirts for a donation on Beach St. because those activities are allowed on Pacific Ave. But in my case, the ban on chalking is citywide and does not provide a legal public place for chalking. Indeed, if chalking on a sidewalk truly defaces the sidewalk, then this is an activity which cannot be then allowed “on special occasions” for defacement is damage to the public sidewalk and cannot be “allowed” when the authorities feel like. Not unless the law itself is meaningless— to be enforced when the suspect is a poor or homeless person, but completely ignored or even celebrated if its First Night on Pacific Ave. or at any number of chalk festivals which are gaining popularity nationwide with the resulting increase and tourism associated with those chalk festivals at almost no expense.
Barisone argues that “Cities have a substantial interest in protecting the aesthetic appearance of their communities by ‘avoiding visual clutter’. He further says that “it is well settled that the state may legitimately exercise its police powers to advance aesthetic values.’ This language concerns me. Are we saying that we want our police to look for evidence of visual disturbances which are aesthetically displeasing for which to cite and arrest? Since a child’s hopscotch playing is ignored, it must be considered aesthetically undisturbing. Where do we stop with these police powers? A car painted the wrong color? Someones clothing not mended or stained? How about the crime of wearing plaids and stripes together?
And even if Barisone is correct, and the City has a substantial interest in protecting its aesthetic values (demonstrated by installing Pet Smart, Ross Dress for Less, and the River Street Sign?) how can any of this reasonably apply to the chalked lines I drew to show where the safe zones would be for music, political tables, sitting, or begging?
I was in Carmel a couple of months ago. You can’t find a pricyer neighborhood than Carmel by the Sea. I was on Scenic Drive which is perched on the cliffs over the ocean beaches near the mouth of the Carmel river. There was a house there, and hung above it was bright, orange netting covering an area 30 or 40 feet wide and about 15 feet high. I found its bright color, and large shape to be at complete odds with the aesthetic element of the very scenic environment. What I saw, and what I am sure most of you have seen countless times was that orange netting put up there so neighbors, store owners, joggers, community members, and public authorities can all have a little preview of the contruction that is to come. Its best to give people a clue ahead of time of any permanent change that is about to take place.
People need to know what it about to happen to their community that will forever–or for a very long time anyway– change the very look of, the character, and the shape of their neighborhood from then on. That is what I was trying to do on July 21st. The City was about to ban, on a second reading to be voted on on July 23rd and ordinance which would prohibit sitting, playing music, street performers, political tables, and beggars to very tiny zones on a few sidewalks and eliminating those spaces and hence those activities completely on many sidewalks thoughout our City.
That is what I was doing. I wasn’t there to flaunt Officer Phelps authority. In fact, I didn’t even know he was there observing me chalk. I wasn’t there to prove that chalking is a legal activity. Commissioner Irwin Jospeh and I disagree on this point. I believe it is legal and constitutionally protected free speech. And these days we need to fight to keep every avenue of free speech left to us. For if we don’t have free speech, how can we address any other problem?
What I am saying, is that I had a compelling interest to communicate to the citizens and visitors to Santa Cruz. It was not trivial. It was quite serious. I did not “deface” the sidewalk in any manner. My chalk writings were minimally noticable. They were far away from businesses. They were informative. They were, unlike the maps the Redevelopment Agency provided to the public regarding the offensively labeled “opportunity zones” accurate.
Since the maps provided to the City were inaccurate, I had an even more compelling interest to demonstrate to the City just how limiting these ordinances would be to life in Santa Cruz as we have known it for decades. I just don’t know today how I could have more clearly informed the public of the upcoming changes in store for Pacific Ave. Just as the owner of that house in Carmel could not just hand out a flyer to his neighbors showing a before and after picture that would clearly communicate the size and the scale of the changes coming.
On July 21st, I chalked the minimum to convey the information. I was performing a public service. I could not convey this message on a flyer or poster. And I was ready and willing to remove the chalkwriting if asked. I even asked Officer Phelps if he wanted me to remove the chalk marks. He told me “It is of no concern to me one way or another if you remove the chalk.”
If the City were truly concerned about the diminishment of its aesthetic values by the minor amount of chalking I did on July 21st, then the City would have wanted me to clean up that chalkwriting–either by asking me to do it, or at least encouraging me to clean it up when I offered to do so. Does the City of Santa Cruz want to remove me instead?
And remove the content of what I wrote and what I will write next?. Those little chalk lines delineating those tiny little areas where all beggars, all street musicians, all Clowns, all magicians, all political tables must now crowd together. That is what I chalked. That is why I have been cited, and even later arrested, jailed, thrown in the drunk tank, and charged $1000 bail. Because the SCPD cannot stand for the information that I write to stand the light of day.

2002-12-13 "First Amendment attacks are always offensive"
by Becky Johnson []:
NOTE TO READER: I am the woman defendant this article refers to. Contrary to what is stated, I am not homeless but I am a homeless advocate, and the words I wrote in chalk that day "Sleep is NOT a Crime!" did express my outrage at how our progressive, liberal town criminalizes homeless people for the innocuous act of sleeping despite the fact that we have 1500 homeless people and shelter space, at best, for 150. Read on for my embedded comments.
Read the article without commentary: 2002-11-26 "Offensive speech isn't always free or protected" by Norah Vincent from "Los Angeles Times" [].

Attention must be paid. And it will be, if the chalkers have anything to say about it. That's the message coming from college and university campuses across the country these days, where a controversial form of political protest is stirring up a rumpus.

BECKY: Actually there is nothing new about using sidewalk chalk at political demonstrations.
This is a time-honored practice that only recently has come to the attention of law enforcement.

The practice, in which students use colored chalk to scrawl often deliberately lewd -- though purportedly
consciousness-raising -- slogans and drawings on campus walkways, came under fire at Wesleyan University
last month.

BECKY: The author's reference to "lewd" speech is a red herring. Certainly students could print up a lewd flyer if they chose and distribute it. The author is stating that because messages sometimes are lewd, (and lewd is often in the eye of the beholder) ALL messages written in chalk should be banned.

College President Douglas J. Bennet, who previously had tolerated fairly racy scribble on his sidewalks,
declared a moratorium on chalking after he saw pornographic references to faculty members.Predictably,
many students and professors have protested the ban, while others have applauded it as long overdue.

 BECKY: What is that old expression? I do not agree with what the speaker has said, but I will defend to the death their right to say it. This can only be content-based banning of first amendment expressive speech.

In the last few years, similar debates have arisen on other campuses, including the University of Southern
California, the University of California, Berkeley, Swarthmore and Williams, but most administrators
haven't forbidden the practice. They should.

BECKY: Right! Lets have less free speech rather than more.

Chalkers defend their pranks by invoking their right to free expression. This is a bogus claim, primarily
because chalking doesn't necessarily qualify as protected speech but also because even if it did, chalkers
couldn't defend it as such for the simple reason that they don't really believe in free speech.

BECKY: In order for the University to ban students chalking political or embarrassing messages regarding faculty members, they must ban 8-yr-olds, girl scouts, kid's drawings, and hopscotch --- and to do so would make the world a little less colorful and a lot more sterile and head towards a police state.

An argument made recently in a chalking case in Santa Cruz may help explain why chalking isn't always protected speech. City Attorney John G. Barisone argued that police did not violate a homeless woman's right to free speech when they arrested her for chalking a sidewalk. According to California case law, he said, regulating speech in public venues doesn't violate the First Amendment if the restriction is based on the method of expression rather than the content and if alternative methods of expression are available.

BECKY: Barisone did not base his case on any current law which forbids chalk-writing. Instead, he argued that I could have used a flyer, spoken out, or placed an ad in a local paper. Yet the law is very specific when it comes to banning free speech. The City must present a compelling argument that some greater harm would befall the community if the speech were allowed. The argument Barisone presented was that chalking leads to graffiti, vandalism, and shop-lifting, discourages shoppers from shopping, and leads to the decline in business and loss of revenue to the the City --- a chain of events that is neither credible nor was it proven. The City presented no evidence that revenues on Pacific Ave. were higher before I chalked and lower after I chalked.

In the Santa Cruz case, both conditions were satisfied, and the woman was convicted of defacing public property.

BECKY: Unfortunately Commissioner Irwin Joseph has a low opinion of the value of the First Amendment. My case is on appeal. By the way, Barisone also believes its legal and okay to ban the act of sleeping out of doors from between 11PM and 8:30AM anywhere out of doors or in a vehicle, even if the law is exclusively enforced against homeless people.

Apply this reasonable standard to campus chalkings and First Amendment objections likewise disappear.
The content of what is being expressed needn't be an issue;....

BECKY:  Excuse me! Didn't this writer start out by objecting to lewd comments? If the students had chalked "We love our School!" would there even have been an issue raised?

... sensible objections to campus chalking can be made on purely aesthetic grounds. Chalking is graffiti, it's ugly,...

 BECKY: Ah! Now its the aesthetic police! Whats next? Banning dreadlocks? Banning wearing plaids with stripes? How about a ban on ugly people? Some people think that colorful chalk is more beautiful than an ugly, dirty, grey sidewalk. That is why this is such a slippery slope. Even the City of Santa Cruz hosts a chalk festival every First Night in which they provide the sidewalk chalk and encourage people to draw on the sidewalk. If that doesn't "deface the sidewalk" my simple expression "Sleep is NOT a Crime!" doesn't either.

and it should be illegal on campus for the same reason that it's illegal in most other places. It diminishes quality of life, and if everyone did it, college idylls would become as squalid as subway tunnels.

 BECKY: This is the "decline of western civilization" argument. That chalking leads to graffiti, to vandalism, and to a society out of control. Also, chalking is NOT illegal most places. The ordinance I was cited under says nothing about sidewalk chalk, and the ordinance has been on the books since 1964 and has only been enforced since the year 2000 and only against activists. Ironically, it has not, to my knowledge, been enforced against anyone who wrote lewd expressions.

Certainly, alternative methods of expression are available on campus. Students can publish their views in college newspapers. They can print pamphlets and hand them out at student unions or even on campus walkways.

BECKY: The fact that other means are available does NOT mean that one means of first amendment expression can be banned. Case law is clear here. The issue is, does the government have an over-riding public interest to protect that is significant, and not limited to a minor cost of clean-up.

They need not deface college property. By this reasonable definition, chalking isn't really protected speech at

 BECKY: Defacement should apply to more permanent applications such as paint, permanent markers, and the like. It should not apply to a substance that is made up of crushed seashells and vegetable dye, wears off, blows away in the wind, and washes off at the first sign of rain or when nearby greenery is watered.

But for argument's sake, let's say that the California standard is hogwash and that chalking should enjoy First Amendment protection. If students want to make this case, they're going to have to accept one particularly inconvenient truth about free expression. It applies to everyone, not just your friends and co-conspirators.

BECKY: I do agree with this. Anyone should be able to chalk, even kids playing hopscotch.

 Naturally, though, chalkers don't see it this way. The same students who shriek loudest in defense of their right to deface sidewalks with intentionally offensive "speech" are usually those who campaign hardest for enforcing Draconian politically correct "hate speech" codes. They're also often the same people who pilfer entire print runs of conservative campus newspapers when those papers run objectionable commentaries.

 BECKY:  I have never argued for "hate speech" criminal codes though I will condemn hate speech every chance I get. I also have never in my life stolen stacks of newspapers, regardless of their content, and do not approve of theft. The author here is dead wrong and needs to manufacture some negative "outcome" of chalking in order to make her point.

Not exactly civil libertarians, are they? Nope, just the usual wilding packs of self-entitled, sophomoric pranksters falling back on high principles when it suits them. It's time they get the spanking they deserve or start living up to what free speech really means.

BECKY: In my case I am a 48 year-old mother of three with a college degree and a teaching credential. Sorry, I don't fit your description of your typical chalk-criminal! The first amendment has always been subject to attacks, mostly from governmental interests who are challenged by its messages, and sometimes by merchant associations who believe they, and not the general public, own the public sidewalks. It is our duty as citizens to actively support freedom of speech and especially those whose messages are unpopular, for popular, non-controversial messages rarely are attacked. And if we don't have freedom of speech as a society, how will we be able to check government abuse the next time around?