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Why is Jimmy Panetta criminalizing free speech?


Editor’s note: This piece was written by Glenn E. Robinson and John Walton. A shortened version appeared in the Monterey Herald.

Why is our local congressman, Jimmy Panetta, sponsoring a bill that would restrict free speech in America?  The American Civil Liberties Union (ACLU) is unequivocal in its opposition to HR 1697 and its Senate sister bill S 720: “the legislation would be antithetical to free speech protections enshrined in the First Amendment” and “punish U.S. persons based solely on their expressed political beliefs.”

The free speech that Representative Panetta, D-Carmel, seeks to chill surrounds support for any economic boycott of Israel or its illegal settlements in the West Bank.  Put another way, this legislation would make it illegal to support exactly the kind of non-violent economic pressure that successfully put an end to Apartheid in South Africa in the 1980s.

Does this infringement on free speech rights impact you?  Yes. You would not be legally allowed to call for and act upon a boycott of products made in the hundreds of illegal Israeli settlements in the occupied West Bank.  Or as the ACLU clearly concluded, the legislation would “bar U.S. persons from supporting boycotts against Israel.”  The criminal penalties for violating this law are a fine of up to $1 million dollars and 20 years in prison.

It is not just the ACLU that has raised red flags. The premier scholarly association for the study of the Middle East, the Middle East Studies Association (MESA), has also come out strongly against this bill, calling it a “grave threat to academic freedom” that would have a “chilling effect on the free and open exchange of opinions and perspectives.”

J Street, a liberal Israel lobbying group, has similarly expressed its concern that this legislation would “actually harm U.S. and Israeli interests by extending U.S. legal protections to illegal West Bank settlements that undermine the prospects for a two-state solution to the Israeli-Palestinian conflict.”  The legislation would “erase the legal distinction between Israel and the settlements and place the settlements, in effect, under U.S. protection.”

As analyses of this bill have surfaced, support for it has weakened.  Sen. Kirsten Gillibrand of New York has withdrawn her co-sponsorship of the Senate version, and other representatives have indicated similar discomfort.  Trying to stem the tide of potential defectors, the primary Israel lobbying group in Washington, AIPAC, immediately targeted Gillibrand, trying to pressure her to reverse course.  She has held firm so far.

Panetta and other representatives have made two spurious arguments in defense of this legislation. First, they have tried to downplay its importance as just a technical correction to legislation passed in 1945 and 1979 that does not have any free speech implications.  This is the Ostrich approach, simply denying the obvious infringement on protected speech.  Second is the Red Herring: strongly denouncing “BDS.” The “Boycott, Divestment and Sanctions” movement is a specific attempt by Palestinian civil society to put economic pressure on Israel (bdsmovement.net).  BDS has had only marginal impact to date, despite the sometimes over-heated rhetoric surrounding it.  The marginality of BDS certainly cannot justify putting the First Amendment at risk, so what is really behind this legislation?

There are two main drivers behind this legislation: preventing any kind of two-state solution by normalizing illegal Israeli settlements, and preventing a repeat in the US of what has begun to happen in Europe.  AIPAC, which wrote Mr. Panetta’s legislation, reflects the hardline policies of Mr. Netanyahu and his Likud party.  Netanyahu and the Likud have worked tirelessly to defeat any hope of a peaceful settlement to the Israeli-Palestinian conflict based on the creation of a Palestinian state in the territory captured by Israel in the 1967 war and occupied for the past 50 years.  The steady expansion of Jewish settlements in the West Bank and East Jerusalem has been the primary vehicle for negating the emergence of a Palestinian state.  Again last week Mr. Netanyahu made clear that there will never be an evacuation of settlements on his watch, when he visited the settlement of Barkan: “We are here to stay, forever.  We will deepen our roots, build, strengthen and settle.”

Mr. Panetta’s legislation seeks to normalize the colonization of the West Bank by chilling free speech calling for sanctions against this very settlement drive.  Supporters of a two-state solution – as we are – must both oppose this legislation and support legitimate and non-violent pressure on Israel to withdraw from occupied Palestinian lands.

The second real driver of this legislation is AIPAC’s attempt to pre-empt in the United States exactly what is happening in the European Union.  Both EU member states individually and the EU as a whole have taken steps to economically highlight the border between Israel and the occupied West Bank.  The EU has mandated that Israel not label products that are made in settlements as “made in Israel,” making it easier for consumers to boycott settlement products — and affirm their support for real peace.  AIPAC, and Mr. Netanyahu, do not want Americans to have that same choice.

Ironically, Mr. Panetta’s legislation goes well beyond what Israel’s own anti-sanctions law allows.  In Israel, vocal and peaceful calls to boycott Israel and Israeli settlements are still protected speech.

No one, not Panetta nor his AIPAC allies, can explain what good will come of this bill. Representative Panetta would do well to drop his co-sponsorship of HR 1697, reaffirm his support for the First Amendment, and truly support social justice in Israel and Palestine by encouraging – not criminalizing – free speech in support of peace.

Glenn E. Robinson is affiliated with the Center for Middle East Studies at UC Berkeley and lives in Pebble Beach. John Walton is research professor of sociology at UC Davis and lives in Carmel Valley.


New House Building


Fifth District Supervisor Dave Potter is abandoning all pretense of caring about good development in his final months of office. It used to be that Potter would shed crocodile tears about always losing on 3-2 votes for projects in his own district, while quietly making sure – wink, wink, nod, nod – that a majority was in place to approve bad developments. Think September Ranch and Ferrini Ranch subdivisions, or the shopping mall at Corral de Tierra and Highway 68. After having been trounced (I wonder why?) in his bid for re-election, Potter is now going all out to fast track the Rancho Canada subdivision at the mouth of Carmel Valley before his terms expires. Apparently he still owes favors to his developer friends.

The Rancho Canada Subdivision (RCS) application is a fraud being perpetrated by the developers with the active collusion thus far by Monterey County, thanks to Potter. The Planning Commission is scheduled to hear the application Wednesday and the Board of Supervisors in three weeks in the mad rush to get it done.

I don’t take the term fraud lightly, so let’s begin deconstructing the application. Years ago, the RCS developers started an application process, but its environmental impact report was so poorly done that the developers withdrew it and the project died. Lazarus-like, RCS is back, and the developers claim that it must be considered under the old general plan, which was replaced six years ago. Here, then, are the first two parts of the fraud: insisting that it must be considered under a long dead but more lenient general plan, and doing so to try to avoid the county’s binding legal commitments.

In 2012, in order to settle a lawsuit brought by the Carmel Valley Association, the county committed to cap new units created in the Carmel Valley Master Plan area to 190. This is a legally binding commitment that the county cannot simply set aside. During the discussions that reached the 190 cap – I was one of CVA’s negotiators – Rancho Canada was specifically discussed as being included under that cap amount.

By accepting a 281-unit subdivision application, the county is acting in bad faith and risks wasting taxpayer dollars in defending what would be an easy case against it. Simply asserting that it is considering the application under a general plan that was replaced in 2010 is nonsense and would never stand up to scrutiny.

But here is the real play that is going on: the 281-unit subdivision application is a Trojan horse, designed to get into the gate and approved instead a 130-unit “alternative” for the subdivision. A reasonable person may ask: why not then just apply for the 130-unit subdivision under the current 2010 general plan as that would fit under the 190-unit cap?

Here is where the fraud deepens. There are at least four reasons that taking this obvious and correct step would probably not work, and thus why the developers – and Dave Potter – insist on considering the application under the long-dead general plan.

First, even at 130 units the numbers might not work for RCS. Of the 190-unit cap, at least 30 units have already been allocated, leaving at most 160. But the 2010 general plan also specifically allocates 24 of those units to a project at the old Carmel Valley airport, leaving at most 136 units available. But we would need to see a full accounting of the allocated units first to be able to say for sure that 130 units were still even available.

If, in fact, 130 units are not available, then the county would need to make a general plan amendment re-allocating some of those airport units to RCS – and that is the second problem. Making general plan amendments under the current 2010 general plan is much more difficult than under the old general plan, and Potter does not have the time to wait. Under no circumstances could the county make a general plan amendment removing the 190-unit cap.

A third (political) problem would then arise: RCS would use up by itself essentially all the remaining unallocated units from the 190 cap, leaving no one else outside of the airport owners the ability to subdivide. Politically, Potter does not want the heat for effectively denying all other applicants outside of the RCS owners, so the fraud about considering RCS under the old general plan got ginned up.

Fourth, RCS is inconsistent in a multitude of ways with the current general plan, as both the Carmel Valley Association and Landwatch have pointed out, thus the developers have pushed for the friendlier confines of an expired general plan written nearly four decades ago.

Hopefully not lost in the fraud surrounding the application is that the 130-unit “alternative” itself is just straight up a bad project. It represents the worst of leap-frog, sprawl development that we have seen too much of in California. As well, the one commendable item in the original 281-unit application – 50% of the units were allocated to workforce housing – has been put aside in lieu of the county’s bare minimum standard of 20% affordable housing. There is nothing compelling about this subdivision application at all once that 50% workforce housing element was removed. It would also violate policy CV 1.6a that gives preference to projects that include “50% affordable housing units.” It is just another run-of-the-mill bad sprawl development with nothing to recommend it.

Potter’s support of RCS will undo his one really good achievement during his time as supervisor: the building of the “climbing lane” on northbound Highway 1 up Carmel Hill. Traffic congestion was utterly horrible at the mouth of Carmel Valley before the climbing lane was built. Part of Potter’s marketing of the climbing lane as found in various county documents is that it would be “no growth inducing” and was meant only to relieve extant congestion. But this was more than a marketing pitch; it had legal consequences. By framing the issue as “no growth inducing” Potter was able to bypass CEQA and not do an EIR for the project. Can anyone imagine RCS being contemplated with the congestion we had before the climbing lane? By considering RCS now, the county is violating its legal and moral pledge to the community that the climbing lane would not be used as an excuse to approve more development.

The Planning Commission should not be party to Potter’s rush to approve RCS. Compel the developer to return with a suitable project that is consistent with the current general plan and the legal commitments that the county has. The Planning Commission would do well not to be complicit in the RCS fraud.

Robinson is a professor who has long been active in Carmel Valley land use issues. See the update on the Rancho Canada subdivision and its clarification on the use of two general plans.

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Retired Judge Terrance Duncan introduces Mary Adams, who hopes to knock Dave Potter off the Monterey County Board of Supervisors

The seeds of Mary Adams’ campaign for a seat on the Board of Supervisors were planted, figuratively at least, in the sugarcane fields of Cuba or perhaps during a tour of one of the country’s farming co-ops.

It was on a trip to Cuba in the spring of 2014 that a group of politically active Monterey County women started pushing the idea of an Adams campaign against seemingly entrenched Supervisor Dave Potter.

Making the trip were 15 members of the Democratic Women of Monterey County, among them Supervisor Jane Parker, Judge Susan Dauphine, former Supervisor Karin Strasser Kauffman and trip organizer Priscilla Walton. Though Potter is a longtime Democrat, he has lost most of his support from the progressive side of the political ledger, which accuses him of failing to protect his District 5 from unwanted development. He has also rankled the left by his behind-the-scenes support for the hugely controversial Monterey Downs racetrack development.

Potter beat back a strong challenge four years ago from another former county supervisor, Republican Marc Del Piero, a relatively recent convert to the slow-growth side, who received considerable support from environmentalists. To at least some degree, however, Del Piero’s campaign was hampered by lingering concerns about whether his political transformation was complete.

Del Piero, now a registered Democrat, said Wedneday that he is undecided about running against Potter in the upcoming election.

With Del Piero uncommitted, political insiders for the past couple of years have mulled over many names as Potter’s replacement. Adams said recently that she was totally surprised, but ultimately flattered, by the suggestion that she take on such a challenge.

“I hope I know what I’m doing,” she said.

Potter’s district includes most of Monterey, Pacific Grove, Pebble Beach and, of particular importance, unincorporated Carmel Valley. Dissatisfied with the county’s land-use decisions affecting Carmel Valley, valley residents mounted an ambitious but ultimately unsuccessful effort late in the last decade to form a city. Among the strongest supporters of that effort were Walton and Strasser Kauffman, who were on the Cuba trip. Also highly active were Amy Anderson and Glenn Robinson, who were present for Adams’ campaign kickoff announcement Wednesday.

Potter’s name was never mentioned during the speechifying, but many of the candidate’s comments were pointed right at him.

“As I meet with neighborhood groups, community leaders and people on the street, I have heard complaints and frustrations,” Adams said. “Frustrations about the actions, and also lack of action, by supervisors, by a tone of secrecy that seems to prevail, with the dismissal of community input and a lack of progress o pressing needs.”

Adams continued, “People are tired of being disrespected and no longer want to accept the creeping stagnation compounded by decisions that seem to cater to special interests rather than the will of the people.”

Retired Judge Terrance Duncan helped introduce Adams along with Margaret D’Arrigo Martin of Taylor Farms. Other notables in the crowd include water activists George Reilly and Ron Weitzman, LandWatch officials Amy White and Chris Fitz, philanthropist Morley Brown, and Monterey Downs opponent Bill Weigle.