Join Dan Kurz, an educator, Jersey resident and Rutgers grad, as he blogs about the issues that connect New Jersey's residents to the world...
Showing posts with label First Amendment. Show all posts
Showing posts with label First Amendment. Show all posts
Wednesday, July 16, 2014
Thursday, March 6, 2014
Anonymous Expression: It Helped To Make America
The First Amendment to the
United States Constitution is one of the heroic marvels of human
freedom. Written carefully by one of America’s greatest legal minds, James
Madison, and widely approved by the First Congress and the original 13 States,
its words toll out as a celebration of liberation and a warning to would-be
tyrants everywhere, particular in
terms of its speech and press freedom provisions:
“Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the government for a redress
of grievances.”
A lot of people – smart
and educated people – do not know that until the establishment of the 14th
Amendment to the Constitution in the late 1860’s, the First Amendment’s
limitations on government only applied to the national level, not the state and local levels. Well up
to and during the Civil War, states, counties and towns routinely censored
newspapers and other media for all sorts of local reasons, from discouraging
slave rebellions to preserving the religious reputations of major leaders of
faith, both living and dead. But with the 14th Amendment’s
provisions requiring states to obey and incorporate the 1st
Amendment, that issue has been long settled, at least in law.
Today, with the explosion
of Internet use, the right to express oneself through publishing has moved to
the forefront. Before the Web the common person did not have the means, or the
interest, to establish and publish a newspaper. Until the 1990’s, the concept
of free expression for most citizens strictly centered around speech, not press. But the online world
has utterly transformed that equation.
One of the most
interesting topics concerning free expression today, not just in
the United
States but also in other huge Internet markets like India, China and Brazil, is the question of anonymous online
expression/publication. It's moved to the front of civil rights controversy. Over
the past two years, both repressive governments and regimes considered to be relatively
free have passed laws, along with corporations that run major websites,
limiting or barring anonymous online publication and expression. Additionally, Google and the Huffington Post have moved towards a “real name” policy,
and this has gotten a lot of Americans upset, and for good reason.
![]() |
| China is cracking down on anonymous writers; should we? |
With the advent of the web
and especially the tween and teen embracing of it, anonymous publishing has
gotten a bad name. Today it seems only cowards and bullies post and publish
without identifying themselves. These people seek to use their words as weapons and not bear any responsibility,
legal, moral, or otherwise, for their ramifications. And yes, as a parent and
educator, I will admit that online bullying is a problem and one that needs to
be challenged with increased education and sensitivity training. Words hurt,
they do; but words also allow us to live, breathe and change.
Many of my readers may be
surprised to learn that, in American law, the right to anonymous publication
and expression is not only a longstanding, enshrined principle, but that much
of the nation’s laws and identity is wrapped up in it.
First, we need to look at
the history. In the years leading up
to the American Revolution, pamphleteers and writers by the thousands engaged
in rigorous, sometimes downright uncouth, rowdy arguments on core issues. Did
the British Parliament have the right to tax the colonists without colonial
representation in Parliament? Do Kings have the right to rule merely due to
their Divinely ordained birth? Can commoners and church authorities alike
interpret the Bible? How should the people of Massachusetts handle
confrontations with British tax collectors? All of these questions were posed
in the years leading up to 1776, and all – most, in fact – were addressed by
anonymous writers and publishers. Benjamin Franklin was Silence Dogood, while other future founders used more
haughty-sounding, Latin-based names like “Publius” and “Brutus”.
Today, the most respected,
written legal commentary on the United States Constitution, The Federalist
Papers, is required reading from high school history classes to law schools.
The Federalist Papers were written in the late 1780’s by John Jay, Alexander
Hamilton and James Madison in order to convince the American people to approve
the then-proposed U.S. Constitution. These works have been utilized in thousands of
court cases on the state and national level and cited as high authority in many
of the United States Supreme Court’s most famous decisions. And what is most
interesting, and important, is that when they were first published in
newspapers not a single commentary contained an actual name. All were first
published anonymously, every one. Jay, Hamilton and Madison - all knew that if
they affixed their names to their works, reputations and petty politics might
get in the way of the expression and debate over the most noble of ideas.
In 1995 the United States
Supreme Court citied such historical examples in the landmark case McIntyre v. Ohio Elections Commission.
In that case the Highest Court in the Land was faced with a controversy that
intersected several points of First Amendment law. The case originated from an
anonymous publication emerging out of a hotly contested school tax election in
the 1980’s. Ohio law required all such publications to contain an author’s
name, but this one didn’t. Ohio fined and the defendant appealed – and won.
In the decision, the
Supreme Court stood up strongly for the First Amendment and its creation of a
“marketplace for ideas.” Specifically the Court stated:
"The interest in having anonymous works enter the marketplace of ideas
unquestionably outweighs any public interest in requiring disclosure as a
condition of entry.”
Further backing this concept, the court directly addressed the controversy of
anonymity:
“Anonymity thereby provides a way for a writer who may
be personally unpopular to ensure that readers will not prejudge her message
simply because they do not like its proponent.”
So to all of the would-be opponents of anonymous
speech I say, stop and withdraw.
Leave this sacred and recognized mode of expression alone. Anonymous expression
made this nation what it is today, and it is worth preserving, and ought to be
rightfully fĂȘted.
Thursday, February 6, 2014
No Need to Visit the Statehouse - Use Email to Make Your Voice Heard!
Regardless of where you stand on the political spectrum, or if you tend to swing all over it, we have all felt the inclination from time to time to make our voices heard –really heard – to our lawmakers. Earlier today I wrote a blog on the importance of the State Legislature, and how, on a day-to-day basis, it is far more involved in our lives than Congress in Washington, D.C.
For a long time exactly what the legislature did and who exactly represented us (as according to our district) was somewhat of a mystery. I remember as an undergraduate at Rutgers, back in the early 1990’s, spending time at the vast Alexander Library going through thick book-length annuals about the legislature to find out such facts. It was all very confusing, and frankly, much of the information was outdated due to election cycles, resignations and other political developments that so typify public office.
Today, none of those problems are roadblocks to civic action. By visiting a few websites, entering in some basic information, we can easily find out what district we reside in. We can find out who exactly represents us, what their political party and committee assignments are, and how to contact them either by U.S. postal “snail mail” or, and this is the major topic of this blog entry, email.
We make our ultimate point to our government on Election Day, without a doubt. It takes some schlepping, to be sure, but if you vote in one of New Jersey’s legislative elections, you’re a member of an elite club. Most never vote in these elections, and when citizens do, the result is shocking but common: a frightfully miniscule proportion of registered voters actually determine the Legislature’s makeup.
With the advent of email, the ease of contacting an exact legislator on a precise issue, for free and from the comfort of one’s home desk, workplace and/or smartphone, has arrived. Upset about the minimum wage? Your property taxes out of control? Concerned over rising tolls at the Hudson River crossings? Don’t wait or delay…send them an email. Just as you might text a teen to come home on time or email your boss a progress report on your next project, you can now contact these lawmakers directly…and they will listen to you. The reasons for this are not just out of civic concern on their part – though this might be a factor – but the plain fact that most of them won their elections by just a few hundred votes. And all of those votes were from people within a five-minute drive of you. So believe it or not, your letter, regardless of length, is important to them. Lobbyists might send money, the Governor’s office might threaten a veto, but only district voters directly place and sustain them in their positions of power, prestige and influence.
Legislators understand another important fact, and they don’t need to pay their political advisors or pollsters to discover it. Whether you are a professional executive or a 16-year-old high school student, if you bother to send in a well, thought-out letter, there are people – voters – who listen to you. As an educator, people in the faculty room at lunch, my wife over dinner, my family over Thanksgiving, constantly ask me where I stand on the issues. Some even ask my advice on whom to vote for. Our legislators know this well.
Email is easy. Email is free. And since the point of writing to a legislature is to get attention, to get some access, it’s the perfect medium to communicate with anyone in officialdom.
I’ve found a single website – a webpage, to be exact, with all of the information a concerned citizen/voter could need to find out who represents them and where to contact them electronically:http://www.njcommunityresources.info/njlegislators.html. This page lists all current legislators by town and district number, and contains all relevant information. It’s short, it’s concise, it’s enabling.
Now what about that letter? How should it be structured? Well, every issue is different, but here are some pointers:
1. Write one email and include all of your district representatives in the address section; there are only three per district – two assembly members and one Senator. No more. No less.
2. Try to keep your letter to one or two specific issues; don’t be long-winded and do limit yourself to a full page or two, single spaced
3. Be polite and professional in your tone; there is no need to be threatening or scream for attention. Your letter and presence as a resident living in-district is enough to catch their eye
4. State your opinion clearly on the issue, but also, if you can,cite examples, precedents and statistics to back up your assumptions
5. Be sure, absolutely sure, to include your home address at the end of the letter to again remind your legislator that you live in- district; if you do not live in-district your letter won’t be as impactful
6. Politely ask the legislator to get back to you with their comments on the issue; always request a follow-up to ensure that your letter is read and processed. You’re not bothering them – communicating with constituents is one of the most important aspects of their job
7. While I would not advise you to write them every day – that’s a bit too much – a few times a month is just fine. Let them know you’re paying attention and holding them accountable on a regular basis
Try it. It’s a clichĂ© but it’s true: don’t just talk the talk, walk the walk. This might seem so easy, but it is citizen activism in its highest form. So start holding them responsible, now.
Trenton Rules, Literally, But So Might You
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| Assembly Chamber, New Jersey Statehouse, Trenton |
All too often history and government courses, both on the high school and undergraduate levels, focus on Congress. On this D.C. stage our most dramatic national performances have been performed. Year after year, and with good justification, we teach our children to remember Congressional laws like The Voting Rights Act, the Civil Rights Act, the Fugitive Slave Act of 1850, The Alien and Sedition Acts of 1798. All very important, all extremely impactful. But when educators focus exclusively on the Congressional setting, we skip the most important instrument of government in our personal lives; it is our legislatures that really regulate almost everythingin our day-to-day affairs.
Consider our legislature in New Jersey…Students are always surprised when I tell them that it is not against U.S. law to drive 100 miles per hour on a highway. This usually provokes a laugh, but technically, it’s true. It’s the State Legislature that ultimately passes all laws, or delegates authority (usually to municipalities, which are also its creation), on speed restrictions.
Our schools, our towns, our police forces, our toilet water, our roads, our universities, our personal relationships, our licenses, our marriages, how we must treat and care for our children and even our pets…these are largely the domain of the Legislature in Trenton. Most people in New Jersey have little or no idea what it is or how it works; for those who do know, they’ll commonly tell you it’s New Jersey’s version of Congress. It’s not, it isconsiderably more.
This is unfortunate, because these N.J. state lawmakers, 80 in the Assembly, 40 in the Senate, are typically elected on slim margins. They are particularly sensitive, whether they like it or not, to the influence of the everyday voter. Unlike Senators on the Federal level, state legislators are not voted in by millions of people. They don’t have tens of millions of constituents (as do U.S. Senators from, say, California or Florida). Frequently the margin of victory or defeat for state legislators comes down to less than 200 votes. Every year, in fact, some legislative elections are decided by less than 20 votes.
The recent Christie crisis has demonstrated the centrality of the Legislature. Christie is a national figure, of course. There are people in Iowa who are, at least according to some national polls, seriously considering supporting for him if he runs for President. But Christie’s present power is vested in a system where he ultimately answers to our state legislators and the voters. If, in the coming months, the Assembly votes by simple majority to impeach him (that’s just 41 votes! Not 41 million votes!), and the Senate tries and convicts him of an abuse of power, Christie isfinished. Even he would probably tell you that. All of his national exposure, his ability to raise money for the national Republican Party machine, his foreign trips to drum up a presidential image, will mean next to nothing.
I’m a Democrat that lives in, at least for now, a district represented by Republicans in the State Assembly and State Senate. But their margins of victory weren’t exactly monumental in the last election, and they know that. I have written many times to them (via email – very convenient) on issues that concern me, and I’m always impressed by their efforts to respond in a thoughtful and meaningful way. Again, they do this not only out of civic concern and duty but because they know that next time they might need my vote, or the vote of the people that listen to me, as I’ve proven to be civically aware.
I am not saying that from the point of view of a state legislator the power of a single voting constituent is equivalent of that to an experienced lobbyist. I’m not that politically naive. But it would be a mistake to conclude that, to these people, I’m completely irrelevant.
So to my readers I say, yes, you should always vote in national elections. It’s important. But arguably it is equally or even more important to vote in elections for our State Legislature, our most impactful “engine of democracy.” Voting for or against legislators and actively communicating with them can, in many situations, make a real difference. Lobbyists don’t elect legislators. Voters do.
Add The Web to Christie's Enemies List
The Web has changed the world. It has transformed education. Since the advent of widespread broadband, childhood and adolescence have been fundamentally transformed. But with the recent happenings and revelations emerging out of the latest Christie scandal here in New Jersey, the Web is displaying another positive characteristic. It’s holding those in power quickly accountable in ways not possible even in the recent past.
If you haven’t been reading the news or watching TV or if you’ve been hiding under a rock for the past two weeks, you’d know that the hard-charging governor of New Jersey is in real trouble. Without a doubt, staffers in high positions in his Trenton office used the power of the state to punish an entire community and every commuter in September of 2013 by choking approaches and lanes in and around the George Washington Bridge. These delays and jams caused loss of property, slow responses from emergency personnel, the death of an elderly woman and a school bus accident. Christie also called New York’s Governor’s office to slow the investigation and learn more about those looking into the situation. And that’s what we know right now.
Was the governor, who is now questionably denying all knowledge of the illegal operation, involved? Did he clearly call the shots? We’re not exactly sure yet, but it doesn’t look good from even this present standpoint.
How did these revelations, and that’s the best word to describe them, come out so fast and with such precision? In the past, such a scandal could have been delayed, or entirely avoided, by ‘losing’ memos, denying conversations and roughing up potential witnesses in the back of a 7-11. But no more.
Today, at least in government, almost every memo, every letter, ever instant message, official or not, goes over email and text. Yes, the private conversations of the governor and perhaps his staff are still privileged and rarely recorded, but official communications? They’re stored in government computers (several) and readily available.
Take former Deputy Chief of Staff Bridget Kelly’s “smoking gun” letter to officials in the Port Authority. A single sentence, albeit fresh and full of arrogance, sunk her and perhaps within weeks the governor as well. Let’s review it:
“Time to make some traffic in Fort Lee.”
There’s more, but that’s enough for me. After this “order” was emailed out, the disastrous events soon followed. And a Pandora’s box was opened for the entire Christie administration.
Here’s another example. Christie called the governor of New York to find out more about the investigation, though publically he said he didn’t care about it. Did Governor Cuomo state that? Yes. Are there phone records? Definitely. This simple act could itself be a serious felony known as “obstruction of justice.”
And what about the accidents on the bridge? The 911 calls? Written and digitized reports from emergency responders? Record of death of an elderly woman? The TV reports of the magnitude and longevity of the traffic crisis? The furious emails raging between Port Authority officials who were well aware they were committing a serious crime (or crimes)? Check. Check. Check. We got them. And therefore, we got them.
Have these sorts of things being going on in American politics? Sure. Absolutely. Perhaps the best example is former president Lyndon Johnson, who in the 1960’s used to rough up his opponents and threaten others who tried to stop his legislation. In this day and age, if one of his furious, profanity-laden conversations was played for the public via YouTube, or found in an email, it would doom him, instantly. And J. Edgar Hoover? Forget it. One could only imagine how email could have sunk and incriminated him, if the Web had existed at that time.
Christie’s present problem is that only he knows, right now, if there is a “slam dunk” email or recorded conversation or message incriminating him. If it’s “floating” out there, yet to be discovered, he’s got to be sweating, because he denied everything. Everything. If such a document comes to light within the next few days, you can forget about this political career…the Feds may be escorting him from the Statehouse in cuffs.
But even if there is no direct record found linking the Governor to the manufactured crisis, for most New Jerseyans it really doesn’t matter. The fact that he surrounded himself with these sorts of appointees, and allowed them to exercise this level of power without his oversight, is enough to label him incompetent. But we know Christie is not incompetent, and that’s the most worrying factor at work right now.
The other web factor that needs to be examined and, dare I say,celebrated, is the instant burst of civic connectivity and expression that’s been more than apparent since the start of the scandal. Almost immediately New Jersey citizens were emailing, blogging, posting, counter-posting, letter writing, Tweeting, Facebooking and uploading videos to express their thoughts on the matter. Trenton legislators, long isolated from the public due to their relative lack of fame, are finding their inboxes flooded with angry emails from constituents (not lobbyists) demanding clean government. The degree of public outrage simply is not subject to denial. A lot of people – millions of them - are furious about this, regardless of where they stand on the Governor’s future.
So here we are with our first email scandal, at least on a state and national level. Yes, the Web has had a lot of bad press lately…NSA surveillance, hacking at Target stores, high school bullying, etc. But have no doubt; the age of the “lost memo,” the “phone call that never happened” and the “witness that has no power to publicize and thus was forced into silence” is over.
Democracy Under Siege in...Jersey City?
Earlier this month the Jersey City Board of Education passed, in a 6-0 vote, what amounts
to a licensure and notification requirement for any person who would like to address their meetings during the public commenting period. When asked by the press to justify the new policy, Board President Sangeeta Ranade responded that the changes:
“are part of an effort to streamline board meetings, which can begin well after their scheduled start time and feature lengthy, often raucous public comment sessions with…comments from the public that are sometimes out of bounds.”
As citizens, we need to step back for a moment to give this statement, and the Board’s action in general, their due consideration. We need to look at them in historical context, because these limitations and attitudes present a very serious divergence from this nation’s most cherished Democratic practices and values. And because it was taken on the part of a school board – a panel in which the education of our children is entrusted – it is all the more grave.
As public officials who are usually unpaid, Board of Education members in our state have to be given some credit. They must invest countless hours of their time reviewing papers, arguing with peers, hiring top administrators, making and reviewing local policy and showing up to numerous meetings that exceed hoursbeyond their scheduled times. In fact, such observations are probably accurate in describing about 99 percent of all municipal and county level elective offices in this nation. In return, of course, these elected officials get a degree of power, prestige, respect and influence. That doesn’t make them aspiring dictators; it’s just human nature. Our own Founding Fathers – Madison and Hamilton in particular - wrote prodigiously on this topic when they were justifying the U.S. Constitution, and the limits it places on officials - in The Federalist Papers in the late 1700’s.
But let there be no mistake here. There is a set of principles that stand far above the efforts of such elected politicians to make their jobs easier or more “manageable.” It is the principle that, literally, the buildings, proceedings, papers and decisions of democratic proceedings are the property of the people. And in these proceedings, there is nothing more valuable than vigorous, and even sometimes “ raucous” discourse. History has proven time and again that this discourse might be messy, it might be loud, it might look disorganized, but it’s what keeps us free. In a democratic system, the idea that a public official is somewhat fearful of vigorous discussion is a good thing, not a bad one.
As children and teens were are all taught in schools, public, private and religious alike, that we need to get along, that we need to work together as a team and in all situations maintain courtesy and avoid confrontation. In personal situations, most people would agree with such values. But historically, Americans know that it is because of their loudness, because of their plain old “problem with authority” and natural distrust of those in power that they live in one of the freest societies – at least in terms of expressing ideas - in the world.
Politics is a tough game. It’s not for the meek or polite. Government, especially boards of education, deal with serious questions and policies that deeply affect our children every day. And sometimes these policies even touch upon life and death itself, as our boards continue to grapple with school visitor, security and “lockdown” issues. So perhaps we need a little yelling, some straight-talking, some unsettling and, dare I say, even “raucous” questions posed between those in authority and those that they serve.
The idea of public participation in political meetings is an iconic one. How many of us recall, provided above, the stirring painting by Normal Rockwell during the early, terrifying years of World War II? In his work “Freedom of Speech,” we see the image of a workingman, a commoner, rising at his town meeting to address his elected officials. This standing man, with his chest out and his face forward, commands the attention of his fellow voters and citizens nearby. What is he saying? It’s not as important as who he is saying it to: people in power, be they town council members, county freeholders, or yes, board of ed members.
Rockwell classics aside, it heartens me that our legislators in Trenton – the people who really make the rules that all towns and boards must follow – have noticed this. Assembly Bill A523 wouldrequire these local boards to reserve time – at least 3 minutes for every speaker - for all interested members of the public to comment on issues. And the most compelling part of the bill (from its interpretive statement) is quoted below:
“Should the portion of the meeting dedicated to public comment exceed the scheduled length of the meeting itself, no vote shall be taken on the subject of the comment until the next meeting, at which time the public comment shall resume until all interested members of the public have had opportunity to comment on the subject.”
How’s that for putting power back in the hands of the people? If this bill is passed into law, not only will elected boards of all kinds have to make time for public speakers, if they don’t adequately address the public’s concerns, such boards won’t be permitted to vote on contentious issues at all. The message is clear: the process (that being, open public debate) is just as, or perhaps even more important, than the finished product (a board’s decision).
Democracy is not meant to be streamlined, at least, not in most instances. Boards of Ed and other policymaking bodies are the domain of the people, and if you don’t like people, or aren’t willing to put up with their nonsensical demands for liberty and respect, you don’t belong in a position of power in the first place.
Support Democracy. Support Dynamic Public Discourse. Support Assembly Bill 523.
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