The People's Republic of Berkeley

by Fred E. Foldvary

On Tuesday, June 9, 1998, the Berkeley City Council will consider eliminating the right to trial by jury and a repeal of the city's obligation to respect constitutional rights. A joke that has been going around is that there are only three places left in the world which practice state socialism: Cuba, North Korea, and Berkeley, California. Berkeley has had one of the strongest rent-control laws in the United States, and taxes are high, but in the area of civil liberties, there was a tradition of respect for free speech.

This may end on June 9. Agenda item 85 on the "Action Calendar" for the city council meeting are revisions to the ordinance banning nudity in Berkeley. The ban was enacted in 1993 as a misdemeanor. A trial of two women for nudity ended in a hung jury in 1997. The city then enforced the law as an infraction, like a traffic ticket, which is not eligible for trial by jury. But a judge ruled in April 1998 that the law did not authorize the city to enforce the nudity ban as an infraction.

With summer approaching, some city officials feel the need to eliminate the threat of bares in Berkeley. To prevent the people of Berkeley from getting naked, the mayor, city attorney, and city manager will on June 9 propose a revision to the Berkeley anti- nudity law, Berkeley Municipal Code (BMC) Section 13.32 (Ordinance No. 6199-N.S.) that will, first, "provide that it may be charged as either a misdemeanor or an infraction in the discretion of the prosecutor." Secondly, the revision will "repeal BMC Section 13.32.020D creating an exemption for conduct to which it would be unconstitutional to apply the Ordinance."

Infractions are violations that are not eligible for trial by jury. These are usually for violating traffic laws, which may be appealed to a judge, but not to a jury of one's peers. It would be costly to have trial by jury each time someone goes through a stop sign or turns left without signalling. But there is a way to preserve the right to trial by jury for traffic laws: allow a jury trial at the expense of the defendant. If the defendant loses, he must then pay the cost of the jury trial. This would eliminate the cost to the city while preserving the rights of the people to a jury trial.

But City of Berkeley may instead go in the opposite direction, extending infractions to laws relating to free speech and property. The Berkeley ban on nudity goes beyond naked folks sitting in a hot tub in their back yard. According to the law, one is in "public view" even inside one's house if there is a window in the room through which somebody could look. Berkeley has a temperate climate most of the year, so most people do not have any air conditioning. When it gets hot inside, some folks just take off their clothes. They then become criminals inside their own home. Even people who just step out of the shower into the bathroom are violating the law if there is a window with the curtains open. A nasty neighbor could call the police and have them cited.

Berkeley officials have been frustrated in the enforcement of the nudity ban. In May 1998 there was even a celebration of the anniversary of People's Park that included a nude performance, and the police did not even bother to cite the performers. By revising the law to enforce it as an infraction, the City will strip Berkeley nudists of their legal right to a trial by jury. Most people are not nudists, and think the law will not affect them. But extending infractions to areas of civil liberties is a dangerous precedent. Once this is established for nudity, the city can then make public protests an infraction, to save costs.

The repeal of exemptions for constitutionally protected conduct is also a dangerous precedent. Once this is established for nudity, the city can then easily claim that its police powers override the rights to the freedom of speech and assembly in general. If people lose their constitutional rights just by removing their clothing, then these rights also do not exist when they are dressed. In addition, constitutional property rights would no longer be respected; the police would be able to crash into somebody's house to arrest them if they suspect that the people inside are naked.

The very idea that the city council can use its police powers to override civil liberties and property rights, enforced without jury trials, violates the whole concept of the rule of law. Trial by jury is the bedrock of our liberty and of justice. It is judgment by our peers, our fellow citizens, rather than by government authority. This is what separates free societies from the totalitarian regimes such as the former Soviet Union. If the City of Berkeley adopts the enforcement of conduct by infraction, it will truly deserve the name, The People's Republic of Berkeley.