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What Pric e Free Speech?

January 25, 1987|DOUGLAS BOOTH | Douglas Booth is a Los Angeles attorney representing the Greenpeace defendants.

Six members of the environmental group, Greenpeace, are in a different kind of preservationist struggle these days, one that has an ominous message for civil disobedience and the exercise of free speech.

Last May, to protest the activities of Occidental Petroleum, they appeared at the site of its annual meeting, the shareholders' sentimental occasion for observing chairman Armand Hammer's birthday. They brought a "birthday present" consisting of 20 barrels of rainwater taken from a storm drain adjacent to the Stringfellow acid pits, the notorious toxic dump in Riverside County. The rainwater was not from the dump; the demonstrators used the Stringfellow reference only to symbolize what they consider Occidental's assaults elsewhere on the environment, especially its plans to drill for oil in the Pacific Palisades.

It should have been obvious that no true emergency existed, for the demonstrators were not wearing respirators or protective clothing. But before they could even unload the barrels, the six were arrested and the barrels were confiscated. Now the state is demanding that they be required to pay restitution for $53,245 in "testing," "transportation" and "storage" costs incurred by the Department of Health Services.

Considering that the combined gross income of all six demonstrators for 1985 was about $60,000, this demand would clearly discourage civil disobedience once and for all (except, perhaps, by persons of similar means as Mr. Hammer's).

The essence of our right to free speech was best enunciated by Voltaire in 1770: "I detest what you say, but I will defend to the death your right to say it." Acts of civil disobedience have been found to be "symbolic speech" and therefore protected, but the evolution of this concept has been a long, slow process.

In 1798, eight years after the adoption of the First Amendment, 10 men, most of them journalists, were imprisoned for violating the Sedition Act, which proscribed "false, scandalous and malicious" statements against the government. That law had a short life, and over the years the courts secured the First Amendment. In 1919, Justice Oliver Wendell Holmes wrote that, absent a "clear and present danger" of unlawful action, speech was protected. In 1927 Justice Louis Brandeis held that even fear cannot alone justify suppression of free speech: "Men feared witches and burned women," he wrote. "It is the function of speech to free men from the bondage of irrational fears."

In the wake of Vietnam War protests, the definition of "speech" saw its broadest interpretation. Protesters who wore black armbands in violation of dress codes or burned draft cards successfully defended their acts as symbolic speech--freedom of political statements, civil disobedience.

But is civil disobedience essential as a means of First Amendment expression? Did we need the Boston Tea Party? Did we need John Brown or Henry David Thoreau? Did we need Rosa Parks to refuse to sit at the back of the bus? And what of environmental activism as "speech"--is it necessary here in California?

Forty years ago, Santa Monica Bay was a thriving biosphere with thick kelp beds and mussel clusters growing on the piers. Now it is an endangered habitat for many species, including human beings. Los Angeles is the only city on the West Coast that continues to dump sludge--the solids skimmed from sewage--into its own bay. Environmental protection is not an issue of aesthetics but one of life and death, and we should value those voices that sound the alarm.

The Greenpeace six, charged with committing a public nuisance, are willing to accept punishment commensurate with their acts, but they are not willing to acquiesce to intimidation by the state of California.

These days, the state seems disinclined to appreciate their message. Perhaps the state's own poor record on toxic controls made the Department of Health Services particularly sensitive to the Greenpeace protest. Just five months ago, an Assembly report charged that all six of California's toxic waste dumps fail to meet state and federal standards.

Greenpeace presented the barrels of rainwater for the sole purpose of focusing public attention on the pernicious environmental policies of Armand Hammer and Occidental Petroleum.

In 1849, Frederick Douglass wrote: "Power concedes nothing without a demand . . . it never did and it never will. . . . Those who profess to favor freedom, and yet depreciate agitation, want crops without plowing the ground."

We must all decide whether nonviolent actions, such as those by Greenpeace, are valuable to us as a nation. If not, then put on the birthday party hats and take the consequences.

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