"Throughout our nation's history, Americans have counted on the First Amendment to protect their right to ask their fellow citizens to change their mind," U.S. Circuit Judge Marsha Berzon wrote. "Abolitionists, suffragists, socialists, pacifists, union members, war protestors, religious believers, civil rights campaigners, anti-tax activists, and countless others have appealed to the principle, enshrined within the First Amendment, that in a democracy such as ours, public debate must be robust and free and that, for it to be so, the Constitution's protection of the freedom of speech must extend to the sidewalk encounter of the proselytizer and his prospective convert."
Berzon wrote that there has been no suggestion that Hoye "engaged in any physical obstruction or violence" or even rough language. Yet Oakland arrested and prosecuted him, and a jury convicted him. And he served his time in a county jail in 2009.
City Attorney Barbara Parker noted that courts have upheld the ordinance itself. Parker maintains, "It's the same bubble for everyone" -- protesters and escorts. She believes in applying the law equally and "respecting public safety, public health and the property rights of everyone."
I don't buy it. Mayor Jean Quan's husband and daughter participated in Occupy Oakland protests. In October, when police removed the tents, Quan invited activists back -- and soon there were more tents in front of City Hall than there were before the police moved in. City councilors embraced the encampment from the start.
Until campers wore out their welcome, City Hall and Occupy Oakland happily resided inside the same bubble.
John Russo, city attorney at the time, also -- wrongly, I think -- defended the "bubble" bill as politically neutral. However, he scoffed: "The minute they pitched tents, they were in violation of city regulations. ... If it had been 120 tents from the (National Rifle Association), right-to-lifers (or) the Boy Scouts, that would not have been tolerated."
I asked Hoye how he feels when Occupy Oakland protesters complain that they are victims whose free expression has been suppressed.
"I don't think they really know what being treated unfairly is," he answered. "I didn't see any of the kind of leniency that they received."
And: "Thank you for thinking of me. People have asked me about that."