Well folks, we hoped we wouldn't have to tell you this, but it's
happening: Berkeley's city attorney, the infamous Manuela Albuquerque,
is trying to get the City Council to officially change the anti-nudity
ordinance from a misdemeanor to an infraction, eliminating our access to
trial-by-jury.
As if that wasn't enough, she also wants to "repeal the exemption for
conduct to which it would be unconstitutional to apply the ordinance"!
In the four-page proposal, Albuquerque trots out her standard concept
that citizens are incompetent to apply the law; that matters of
Constitutionality are too technical for "lay people" to resolve.
I will try to type in the entire proposal and make it available, but for
now the key thing is this:
The X-plicit Players have always claimed that there is widespread
appreciation of public nudity in Berkeley. We believe that the great
majority of local citizens are happy to accept the appearance of naked
people in public. Popular support has sustained us through six years of
legal battles, including five trials, all of which have been decided in
our favor.
When the jury acquitted Deb Moore and Nina Shilling in October 1996,
they spoke for the citizens of Berkeley. It seems the District
Attorney's office heard their voice, because since that time they've
refused to prosecute any of the citations filed against us.
We feel that local law should reflect the shared sensibilities of local
citizens. The attempt to recast the anti-nudity ordinance as an
infraction is a clear-cut attack on this idea. The whole point of the
move is to exclude the voices of Berkeley citizens from the effects of
the law. This must not happen.
Ironically, the City and District Attorneys are in complete agreement
with us on a crucial point: "it would be futile to prosecute any further
nudity cases, involving claimed free speech, as misdemeanor, unless the
ordinance was amended to give the prosecutor discretion to charge the
offense as an infraction." To us, the inescapable inference is to
eliminate these prosecutions; stop wasting the people's time and money.
To the City Attorney, the inference seems to be: eliminate the citizens
from the legal process; silence them completely.
The people of Berkeley have supported us, and we support them. We trust
their judgments about the anti-nudity ordinance, and we are adamantly
opposed to a legal maneuver aimed at excluding those judgments from the
legal process.
We call upon everyone who cares about the just application of the
anti-nudity ordinance to tell the City Council in no uncertain terms:
Don't change the anti-nudity ordinance to an infraction. Hands off the
juries! Make sure constitutional protection remains a part of the law!