Opinion: The University of California is free to lie — the 28th anniversary of its notorious SLAPP suit

The university filed the suit against people protesting the construction of volleyball courts in People’s Park. For that and other reasons, Berkeley should work to keep the city’s most famous landmark an open space.

Almost 30 years ago David Nadel, the late owner of Ashkenaz, and I joined a non-violent protest in People’s Park. We had never been arrested before sitting peacefully in a circle with 34 others to oppose turning People’s Park into a sports facility for sand volleyball courts. David had been a conscientious objector during the Vietnam War helping veterans in hospitals. I had worked throughout high school assisting others in obtaining conscientious objector status.

Both of us were locked up in Santa Rita during the worst of the violent confrontations after the university sent bulldozers to People’s Park on July 31, 1991. When they released us after three days, we got a piece of paper saying we had no charges, no court dates, we had simply been detained. Imagine our surprise when we were later accused of masterminding riots from behind bars.

A call came early in the morning about six months later. A male voice said I was expected in Alameda County Superior Court the next morning, Friday, Jan. 10, 1992, and that I was being sued. I remember thanking him, bewildered. Then my phone rang again. It was David, asking if I had just gotten a really strange phone call. We were both being described in the university’s legal papers as “key leaders” of a violent conspiracy.

Years afterward, Judge Donald King’s published decision to dismiss the case we filed against the university for defamation argued that government agents, in this case, the University of California, are free to lie about citizens like David and me, applying First Amendment protection to government defendants for the first time in the context of defamation suits. The argument was considered a case of first impression by Bernard E. Witkin, legal scholar and renowned authority on California law. A case of first impression is a case in which a question of interpretation of law is presented which has never arisen before in any reported case. It was Judge King’s assertion, in his own words, that:

“If government is compelled to guarantee the truth of its factual assertions on matters of public interest, its speech would be substantially inhibited, and the citizenry would be less informed.” 

You’d be forgiven if you thought this statement came from someone in the current administration, but you’d be wrong. We’d been dragged through civil court for years by the university, and found no justice. The university was my alma mater, so the shock of being so roundly defamed was only topped by the irony of being described as violent after both of us had spent our lives of working for peace.

Jan. 10th falls on a Friday again this year, 28 years after the phone call that sent our lives into debilitating legal chaos, forcing us to raise over $100,000 just to keep up with the costs of the civil court system, the system where you don’t get a lawyer provided by the state. The case was determined to be a SLAPP or Strategic Lawsuit Against Public Participation and managed to assist in giving birth to California anti-SLAPP legislation.

But it is small comfort, these 28 years later, to hear UC Berkeley Chancellor Carol Christ’s proposal to develop People’s Park, as if it was no more than a vacant lot, or “opportunity site”, instead of a 50-year-old public park, a city of Berkeley landmark with the distinction of having been declared a “quintessential public forum” by Judge Henry Ramsey, Jr. as well as a creative commons, and a monument to peace.

The university is free to tell lies about its citizens and be wrong in its “factual assertions on matters of public interest” as Judge Donald King wrote in a decision which raised eyebrows among legal scholars. But according to Judge Ramsey, a distinguished legal scholar who served as an Alameda County judge, member of the Berkeley City Council and dean of Howard University’s law school, internationally renowned People’s Park is a quintessential public forum, and the university is obligated by his 1987 court order – from that same court – to respect it as such. Having a quintessential public forum without any place to gather is like speaking from a podium in a locked closet.

The city-wide passage of Measure L in 1986, the Berkeley Public Parks and Open Space Preservation Ordinance, requires the City Council “to preserve and maintain the public parks and open space which exist in Berkeley.” It also requires the city “to acquire and maintain public parks and open space in the census tracts and neighborhoods of Berkeley having less than the minimum amount of open space relative to population (2 acres per 1,000) identified in the Berkeley Master Plan of 1977; and to require the city to submit to a popular vote all proposals to withdraw from recreational use public parks or public open space.”

Years ago, former Mayor Loni Hancock did exactly what Measure L requires when she offered to buy People’s Park and maintain it for the public’s use. It’s time for our current mayor to show the same foresight and courage on behalf of future generations who will wonder why this mayor so casually allowed the destruction of our most famous landmark. It should also be done out of respect for the area of our city which has the most city, state, and federal landmarks, eight of them adjacent to People’s Park, but is in the most need of irreplaceable open space, the preservation of which would ensure that architectural sightlines are respected.

We can build housing and protect our parks and landmarks. Our city leaders are currently negotiating with the university over its increased enrollment and impact on city resources. It’s appropriate for them to include a serious concern about the proposed destruction of an internationally respected city landmark in that discussion. Building peace is an active process, and a jubilee year, a 50th-year, is traditionally a year of joy, restitution, and the pursuit of long-awaited justice. Our town has suffered extraordinary, blood-soaked tragedy for planting flowers, and if we come together, we can actively build a lasting peace.

Carol Denney