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Berkeley Anti-Trump Protest

Multiple fights break out between Trump supporters and anti-Trump protesters in Berkeley, California on April 15, 2017. / AFP PHOTO / Josh EdelsonJ

Limits of Free Speech in the “Home of Free Speech”

Republicans are so wedded to “the party” at the expense of the country and its people, that self-destruction in the name of the party has become more important than the “greater good” for the nation. Republicans were never known as devotees of Jeremy Bentham and John Stuart Mill, but Republicans do have a historical devotion to Utilitarianism through philosopher William Paley, who developed a Christian Utilitarianism philosophy inspired by Bentham and Mill.

Trump, DeVos, Pruitt, Sessions and other billionaires in the new administration seem bent on destruction of any and all of Obama accomplishments, because destroying his legacy is more important than education, clean air, water and food for the people who voted for them. Ideology now takes priority over basic human needs – (I can never again use the Fake President’s last name as a transitive verb). Paley actually argued that there was an ethical foundation for the “greater good” and that it lay in science! How ironic is that?

When the Nazis marched in Skokie in the 80’s, the ACLU defended their right to do so. The Nazis chose Skokie because of its high population of Holocaust survivors to optimize their offensiveness. What could be more provocative than Nazis staging a rally for the expressed purpose of disturbing and terrorizing the survivors of the terror they created, with vivid and graphic reminders of same?

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The presence of two pro-Drumpf rallies in the City of Berkeley also painfully tested the limits of free speech. “Berkeley” has been a code word for Fox News and a dog-whistle call to rise up against all things progressive. Sadly, Berkeley city officials play into this typecasting by wasting a lot of time on symbolic ordinances, on many issues outside of its jurisdiction. The city also destroyed any notion of affordable housing under former Mayor Tom Bates over the past 10 years, but that’s another story. The current crop of Berkeley politicians has cruised on the historical accomplishments of their predecessors, while contributing nothing positive to the progressive dialectic. Not “fake” but phony.

Staging a pro-Drumpf rally in this city known for progressive activism is no less provocative than Nazis in Skokie.

Staging a pro-Drumpf rally in this city known for progressive activism is no less provocative than Nazis in Skokie. Berkeley also has a high concentration of Jews (20,000 out of 120,000). The difference is that while Holocaust survivors were not likely to take to the streets, willing to engage in violent resistance; Berkeley and the East Bay is home to hundreds of well-trained (some with military experience) people whose anger about Trump moves them to violence.

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Trump supporters in Berkeley is an open invitation for the equally mindless and destructive Black Block anarchists to bring their own “regulated militia” into town to commit violence against people and property. It’s a recipe for a perfect storm of civil disturbance, so why even allow it? Right-wing thugs came to Berkeley on Saturday from all over the country, summoned by calls to action on numerous alt-right websites. Anti-Fascists groups quickly took note and organized.

When the ACLU defended the Nazi’s right to march in Skokie, prior legal precedents were laid askew. Brandenburg v. Ohio (1969) was a precedent for allowing offensive speech, but also placed restrictions on speech that carried intent of violence likely to cause immediate harm. Brandenburg upheld the right for the KKK to make offensive statements, but held that “government cannot punish speech unless it meets two criteria: first, if it is “directed at inciting or producing imminent lawless action,” and second, if it is “likely to incite or produce such action.” (Bill of Rights Institute – “Skokie & Brandenburg”)

In Masses Publishing Co. v. Patten Judge Learned Hand, argued in 1917 that even dangerous speech was protected against government regulation. But he conceded that government could regulate any speaker who would "counsel or advise a man" to commit an unlawful act. The broad impact of Masses is that it created broad protection for political dissent, and required the Court the government to meet three different criteria to regulate speech. First, the speaker must promote not just any lawless action but "imminent" lawless action. Second, the imminent lawless action must be "likely" to occur. Third, the speaker must intend to produce imminent lawless action ("directed to inciting or producing imminent lawless action"). (Prospect, “Is Violent Speech a Right?”)

By the qualifying terms set by both Brandenburg and Skokie, the presence of Nazis in Skokie may not meet the prohibited threshold only because geriatric Holocaust survivors are not likely to take to the streets with knives, clubs and pepper spray. But in Berkeley or Oakland, that has proven to be a sure thing. Ergo and to wit, local jurisdictions and institutions (UC Berkeley) have a right to prohibit the presence of any individual or organization whose presence is likely to result in imminent violence and destruction.

I came face-to-face with a Nazi demonstration in Ann Arbor in 1983, and there were no riot police between them and me. We had them surrounded when cops in riot gear stepped in. One cop gently put his hands on me, expressed empathy and forcefully told me, "PLEASE GO HOME!" Trump has enabled, empowered and given the all-clear sign for the worst elements of society to come out and act out their Fascist fantasies. Until recently, I wondered why Black Block was not treated as an armed militia and national security threat.

Saturday in the park in Berkeley showed that BOTH sides are arming and preparing for a bigger showdown. Black Block doesn’t claim the mantle of the noble Anti-Fascist who ought against Franco in the late 1930’s, but they are a natural response to the frightening level of organizing and intent by committed Nazi and Fascist forces empowered by Trump.

scott prosterman

 Scott Prosterman

Scott Prosterman is a writer and editor in Berkeley. He was born in the 50’s, grew up in the 60’s, thrived in the 70’s, barely survived the 80’s and regrouped in the 90’s. A graduate of Rhodes College and the University of Michigan, his life was defined by becoming Bar Mitzvah in Memphis six weeks after MLK was killed there.