Happy 50th Birthday, ACLU-NJ. - promoted by Rosi Efthim
Monday was another weird one in Trenton.
It's unusual for the ACLU to testify on the same side as groups like New Jersey Right to Life and New Jersey Coalition to Preserve and Protect Marriage. But on Monday, I had the exceptional experience of testifying alongside Marie Tasy and John Tomicki (of those respective organizations) on not just one bill, but two.
Disclosure or disaster? When censorship wears the disguise of transparency.
In an attempt to address the lack of transparency required of 501c4 organizations that run issue-advocacy ads during election season (think swift boat ads), A2595 goes too far by requiring 501 c4 and c3 organizations doing advocacy work unrelated to electoral politics to reveal their members' private information. While the ACLU-NJ understands the importance of disclosure, if passed this bill would put a stranglehold on our free speech and association rights, and create administrative nightmares for already overburdened organizations.
For example, if the League of Women Voters spent more than $2,100 to provide information in a non-partisan effort to educate voters, under A2595 it would have to disclose names and other information about any donor to the organization who gives over $300. This is true even if the League provided information simply listing the candidates in each district or describing the public questions on the ballot.
Likewise, if the American Cancer Society or Muscular Dystrophy Association wanted to give an award at their annual gala to a legislator for his or her work in their area of interest, and the organization spent over $2,100 in printing programs and invitations containing information relating to the legislator's accomplishments, that organization would have to disclose the names and personal information of any donors giving over $300.
The ACLU-NJ and NJ Right to Life, as well as other non-partisan, issue-oriented organizations across the spectrum, lined up to speak out against this bill. Even the New Jersey Election Law Enforcement Commission (ELEC) objected to including 501c3 and c4 organizations in the bill. Assembly Judiciary Chair and primary sponsor of A2595 Assemblywoman Linda Greenstein decided to take the bill back to the drawing board.
'Adopting' Broad Coalitions in the Fight for Birth Parents' Privacy
After the hearing on the disclosure bill had finished, our motley crew of advocates headed over to the Assembly Human Services Committee for part two of strange bedfellows at the State House. This time, the issue was the privacy rights of birth parents who wish to maintain the confidentiality state law has protected for decades.
For at least 50 years, New Jersey law has required that adoption records be sealed. Currently, anyone seeking adoption records must meet the courts' "good cause" standard to get access (which generally requires a pressing medical need).
Impassioned adult adoptees have formed a lobby to gain access to their original birth certificates, which include the names of their birth parents. The adoptees worked with Senator Joe Vitale to develop a hot messy sausage called S799/A1406, which would open the records so that adult adoptees who requested them could receive their original birth certificates and their birth parents' names (see bullet points on problems with the bill below).
While we are sympathetic to the adult adoptees, the privacy rights of birth mothers who do not wish to have their names revealed must also carry weight.
I have received a number of anonymous letters from women explaining their situations and thanking us for our work on this issue. Several who wrote became pregnant through rape, incest and trauma, and they fear having those parts of their pasts suddenly resurrected by an unexpected knock on the door.
"The state is trying to draw a bright-line rule completely excluding all possibilities," said Daniel Silberstein, a Clark attorney representing the recall committee. "We are not arguing today for Senator Menendez's recall. We are arguing simply for the right to express our dissatisfaction with Senator Menendez."...
While Silberstein argued the case was about allowing "core political speech" by way of New Jersey's secretary of state approving the recall notice, Menendez attorney Marc E. Elias of Washington, D.C., and state Deputy Attorney General Donna Kelly said the parts of a recall cannot be parsed and the whole effort is unconstitutional. They cited the Supremacy Clause of the U.S. Constitution, which says federal law trumps a conflicting state law.
This is ridiculous. Tea Partiers, like anyone, can go gather petitions in person -- or online -- all they like. Petition for Menendez to resign. Petition for him to vote against the budget. Petition for a recall. Petition for Exxon to spend $10 million attacking him. Whatever they like. Having a petition trigger a recall is what is at stake, and that is arguably unconstitutional. Besides the Idaho precedent we discussed before, the U.S. Supreme Court has ruled term limits for Congress unconstitutional, and that is a very similar issue.
With the Citizens United decision, the SCOTUS allowed the direct influx of corporate money into the electoral process. This decision also allowed unions to make the same monetary donations as corporations.
Up against this is Gov. Christie's executive order prohibiting unions from making political donations, ostensibly because unions are exempt from "pay-to-play" rules. In response, CWA District 1 has filed a suit challenging the constitutionality of Christie's executive order. But instead of relying on Citizens United, their basis is that they should not be equated with businesses, since they do not do business with the state.
In my opinion, they would have a better case relying on the Citizens United decision (no matter what one may think about it), which would trump anything on the state level, perhaps pay-to-play rules as well.
This SCOTUS decision may have the effect of striking down "pay-to-play" rules as an abridgment of the free speech of corporations. Who knows what else may be in its path?
The ACLU released their report card yesterday grading Mayor Booker and the city of Newark on four criteria: Immigrant rights, Open Government, Free Speech and Police Practices. The report card is the first prepared by the ACLU on a specific city, and focused on Newark, because it is the state's largest city.
They were very critical of the police practices in Newark and also tough on the city regarding the free speech analysis. You can see the whole report for their concerns and analysis.
Booker last week said he welcomed, "constructive input on how to get better," but said the report card failed to recognize progress that was being made in addressing ACLU concerns. He noted that ACLU had been given a level of access to city officials the agency never had under his predecessor, former Mayor Sharpe James.
"We think we've made some pretty incredible strides," Booker said.
[snip]
Booker said a B grade for open government was "outrageous," after he pushed for reinstatement of a citizen's right to speak at city council meetings.
The city, also under the Booker administration, the mayor said, created a constituent concerns office, has heard residents at open-office-hour events around the city, established the state's first "4311," information line, for non-emergency citizen issues, and even has used the social networking website, Twitter.com, to communicate with residents.
And there was additional criticism of the report:
Julian Neals, Newark's Corporation Counsel, said the low grade on police practices alone was unwarranted because the lawsuits remain unresolved.
"It's like giving somebody a final grade during mid-term season," he said. "I think it's a little bit premature."
I've seen him talk about many of these issues, but the ACLU doesn't feel like the actions have backed up all of his words. Even the Mayor himself acknowledges regularly that there is more work to do, but he seemed pretty disappointed by this report as not giving credit for the strides they have already made. He just doesn't seem to see some of the points as constructive criticism.
The New Jersey Supreme court has ruled that unions may use an inflatable rat at protests. Lawrence Township had fined a union for violating a sign ordinance that banned inflatable signs, except for the all-important purpose of a grand opening. (The union had been protesting at a local health club.) The court ruled that the ordinance "violates the First Amendment right to free speech and is overbroad."
But rather than let the matter be settled, they have decided to try and "fix" the ordinance:
But township attorney Kevin Nerwinski interjected, saying the matter had been upheld in lower courts, and it was a matter of defending the township ordinance that was passed in the early 1990s.
Though only a portion of the ordinance was declared unconstitutional, Nerwinski said he would take a look at the rest of the law. The ban on inflatable balloons had been a public safety issue, and Nerwinski said township officials "want to make sure where protest activity takes place, it doesn't endanger people or property."
So an inflatable rat poses more of a danger than a grand opening balloon for a new business? That prompted this response:
Nick Mellis, a Lawrence resident and chair of the Green Party of New Jersey, questioned how much money the township spent "to defend the undefendable when it was obvious people have a right to protest peacefully." Mellis added, "I can't wait until you revise the First Amendment of the Constitution of the United States."
Maybe there isn't anything else going on that they can just keep spending time and money on this issue. Apparently this matter is still to be continued, despite the ruling of the state's highest court.
The New Jersey Supreme court has ruled that unions may use an inflatable rat at protests. Lawrence Township had fined a union for violating a sign ordinance that banned inflatable signs, except for the all-important purpose of a grand opening. (The union had been protesting at a local health club.) The court ruled that the ordinance "violates the First Amendment right to free speech and is overbroad." The full decision is available as a PDF at the Court website. My favorite part is this:
The Lawrence Township sign ordinance is overly broad because it has almost completely foreclosed a unique and important means of communication. Non-verbal, eye-catching symbolic speech represents a form of expression designed to reach a large number of people. The Township's elimination of an entire medium of expression without a readily available alternative renders the ordinance overbroad.
While the giant rat gives the story a good hook, this is an important decision as local officials try to shut down protests and free speech expressions, from an obscure local gym in New Jersey to the National Conventions.
So now Jerramiah Healy is claiming that his right to free speech was infringed when he was arrested for not allowing police to interview two people involved in a domestic dispute. His claim is pretty stupid. Carried to its logical conclusion, it holds that any random citizen (remember, he claims he was not acting as an elected official) has the right to force a police officer to stop what they are doing and listen to the ramblings of that random citizen. Regardless of whether or not that citizen is drunk or not.
I don't want to deal with the Constitutional issues here - first, it's ridiculous on its face; and second, you can comment at NJ Voices if you want. I want to focus on the underlying attitude(s) at work here.
This is part two of a situational series about the city of Newark's blockades to free speech. (Part one is here.)
Last night on WBGO, Mayor Cory Booker assured listeners that free speech rights are safe and sound in Newark and that the recently passed city ordinance affecting free speech rights in the city explicitly excepts First Amendment activities from the burdens of permits and fees.
(This dovetails with the efforts spearheaded by Garden State Equality. - promoted by Jay Lassiter)
Over the years when I have talked to people about the work of the ACLU, I often share outrageous stories of poor decision making by government employees that costs the taxpayers big time. And, I usually tell people that of every category of government, no one digs their heels in on the wrong issues more than school superintendents.
Here are just a few of these stories: there was a school district in Washington State that didn't want to pay to mail the ACLU about 11 pages of public records, went to court and ended up writing the ACLU a check for almost $60,000 in attorney fees; or the school that suspended a student for having aspirin at school under a zero-tolerance policy; or the student suspended for having a chain on her Tweety Bird wallet to connect it to her jeans because they considered it a ''weapon.'' I could go on.
Then there is the more recent situation involving the Newark Public Schools, which blacked out the picture of a gay student and his boyfriend kissing in the yearbook -- but wait, fortunately, this one has a different outcome than the others.
In this case, Newark Public Schools Superintendent Marion Bolden, after learning the full facts of the matter and receiving an avalanche of angry phone calls and e-mails generated by our friends at Garden State Equality, reversed the decision to censor the picture -- and reversed it in a big way.
The state Supreme Court today is hearing (right now, actually -- go here) an East Windsor case with widespread implications.
On the surface the case -- which pits a group calling itself the Committee For A Better Twin Rivers against the Twin Rivers Homeowners' Association -- seems a local dispute. But the issues -- whether residents who move into housing developments governed by homeowner associations sign away their constitutional rights as part of the covenenats they sign.
I know Marion. I'd be surprised if she's even 5'4" and as reported, she is 69 years old. She is one of the gentlest people I know. There is no way she was ever a threat to the cop. Here's her story, followed by the AP version:
As most of you know, I am a lifelong Democrat. In my nearly 70 years of living, I have always believed in the ideals of the Democratic party, but I have come to recognize that the local Democrats in Piscataway have long abandoned those ideals in favor of their own political interests...
In my own effort to encourage people to vote the Democrats off the council, I made eight cardboard signs by hand and began hanging them around the township on Wednesday morning. One of my signs was hung at the intersection of Morris Avenue and South Randolphville Road near my home. While driving by not long after hanging the sign, I noticed that the sign had been taken down. I parked my car on the side of the road and walked over to pick up the sign and re-hang it. At this time, I was accosted by a Piscataway police officer, who instructed that I not re-hang the sign, suggesting that re-hanging the sign would interfere with work being conducted by a PSE&G crew nearby. When I protested that I had every right to hang the sign, the officer grabbed the sign from my hand, immobilized me with a grip around my shoulder and proceeded to place me under arrest. He physically forced me to the ground while handcuffing my hands tightly behind my back.
I was transported to police headquarters where I spent the next four hours handcuffed to a wall. Despite my repeated requests to make a telephone call to alert my family and friends of my whereabouts, I was not permitted. The handcuffs were so tight around my wrists that they are now bruised and swollen. After spending nearly five hours locked in handcuffs, I was eventually permitted to call my former husband who came to get me and drive me to retrieve my car which had been impounded.
Wednesday was one of the worst days of my life. No one should ever be subjected to the treatment that I received from our local police on Wednesday. I believe that my arrest was entirely politically motivated and that I was mistreated solely because of my opposition to the current Democrat regime. This is America, and I have every right to express my opinion, orally or on a sign. It is a sad state of affairs when our local Democrats and their police force resort to such ruthless tactics to attempt to silence their critics.
and here's what the AP reporter makes of it:
Elderly woman accused of punching cop
PISCATAWAY (AP) -- A 69-year-old woman who was charged with assaulting a police officer has turned around and filed a complaint against him for the incident, which stemmed from a political sign she had put up.
The incident started last Wednesday when Marion Munk, a ceramics instructor at a community college, said she noticed a handmade political sign she'd left on a street corner near her house was knocked to the ground.
Munk said she stopped at the corner, where Public Service Electric & Gas Co. crews were working, to find out why her sign, which was against incumbent Democrats, was down on the ground but two signs in favor of the Democrats were up.
"I asked them, 'Who did this?'" Munk said. "But they just wanted me out of the way."
Munk said Sgt. Wayne Vakulchik, an officer who was there directing traffic, grabbed the sign from her, at which point she "pushed him out of the way."
In the police report of the incident, Vakulchik said Munk punched him in the chest and that the sign was in the way of the PSE&G workers so they took it down, police said.
Munk, who was charged with disorderly conduct and assaulting a police officer, said she was handcuffed to a wall at police headquarters for more than four hours after her arrest. She's filed a complaint with the police department.
Vakulchik "just yanked me around," Munk told the Home News Tribune of East Brunswick.
Capt. Richard Ivone of the Piscatway Police Department said an internal affairs investigation would be conducted on Munk's complaint against Vakulchik, which cites excessive force. Ivone said the utility workers at the scene witnessed the whole incident, "so we should get this wrapped up pretty quickly." ...
The Home News reported that she faces up to 18 months in prison if she's convicted for assault.
After talking with someone who's worked on these issues, I'm calling for the mayors of Highland Park, Edison, Piscataway and New Brunswick to set up civilian review boards with subpoena power and asking for an external auditor from the state.
Assemblyman Peter Biondi (R-Somerset) has introduced a bill (A-1327) that if passed would: 1. Require that every user of this site provide us with their real name and address. 2. Require us to turn over this information to anyone who claims to have had "false or defamatory" information posted about them. 3. Make us liable for any damages if we don't follow the measures in the bill.
There's one small problem: The NJ Supreme Court ruled that banning anonymous online speech is unconstitutional.
This is as ridiculous as it gets, but it displays the total disconnect that many elected officials have with the internet as a medium for speech. The US Supreme Court ruled in Talley v. California (1960) that anonymous postings of pamphlets is legal. Like pamphlets, websites like Blue Jersey are just a communications device, but it's feared because it's so democratic and often uncontrollable. Perhaps people who support these measures have something to hide and would rather it not come out during campaign season.
Assuming the bill were somehow enforceable and that it managed to pass, it would require us at Blue Jersey to spend money to verify the identity of every single person that posts here (currently 377 users). Otherwise, we would be liable for damages. That measure alone is enough to shut down almost all forums and community blogs - the costs would be prohibitive. It's a little more indirect than Chinese-style censorship, but the end result is the same.
Congratulations Mr Biondi: You're the winner of today's Worst Legislation Award!
An appeals court has issued a great decision ruling that the NJ Constitution protects the free speech rights of residents of homeowners associations.
The plaintiffs won the right to post political signs on lawns, have equal access to the community newspaper, and have equitable access to the community room for meetings for dissident members of the homeowner association.
More than one million NJ residents are subject to the actions of their homeowner's associations. Now, these associations will be held to constitutional standards:
"It follows that fundamental rights exercises, including free speech, must be protected as fully as they always have been, even where modern societal developments have created new relationships or changed old ones. Expressive exercises, especially those bearing upon real and legitimate community issues, should not be silenced or subject to undue limitation because of changes in residential relationships, such as where lifestyle issues are governed or administered by community associations in addition to being regulated by governmental entities."
Last year by a vote of 286-130, the House of Representatives again voted in favor of a Constitutional Amendment that would essentially repeal a portion of the First Amendment rights to free speech. The Amendment, which would make desecration of the flag a crime, was introduced by disgraced Congressman Duke Cunningham and was supported in the House by NJ Democratic Congressmen Menendez, Andrews, Pallone, Pascrell and Rothman. Only Congressmen Holt and Payne had the courage to oppose it.
In the Senate, 65 Senators supported the Amendment - two shy of the 2/3rds needed for it to pass the legislature. Both Corzine and Lautenberg were opposed. As today's Trenton Times editorial points out (and Sharon already mentioned), Corzine's decision to move Menendez into the Senate, brings the number of votes "in favor of this frivolous and harmful amendment" to 66. As they point out, if just one member of the opposition fails to show up for the vote, they will have the required 2/3rds, and our nation will move one step closer towards the authoritarian regimes that our flag stands against.
"We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents."
- Justice William J. Brennan in the majority opinion in Texas v. Johnson
