ACLU-NJ Goes to NJ Supreme Court to Defend Rap Lyrics as Free Speech

April 9, 2014
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TRENTON – The American Civil Liberties Union of New Jersey (ACLU-NJ) appeared before the New Jersey Supreme Court today to argue that an amateur rapper’s rap lyrics should not have been used as evidence against him in a crime.

Rap music, argued Ezra Rosenberg, the ACLU-NJ cooperating attorney who argued the case before the court, is a genre that originated in reaction to the mass incarceration of young black males in United States.

“Whether gagsta rap is an act of ideological insubordination, or an embrace of the stigma of criminality, or simply a cry against the hopelessness of the human condition in our inner cities, it would seem to b a cruelly ironic contribution to the vicious cycle of mass incarceration for this particular art form to be used as a mechanism to lead to further convictions,” Rosenberg said. “At a minimum, more caution is called for.”

In November 2005, police pulled over Vonte Skinner, a Burlington County rapper, and searched his car in connection with the shooting of Lamont Peterson. When they looked in his backseat, they discovered 13 pages of rap lyrics that used violent language and descriptions of violence.

Although all of the lyrics were written before Peterson was shot, the lyrics were treated and admitted into trial as evidence. Skinner, who maintained his innocence, was convicted in 2008.

Skinner appealed the conviction. The ACLU-NJ filed an amicus brief that argued Skinner’s rap lyrics should be treated as protected first speech rather than as evidence. The brief argues that using rap lyrics as evidence of a confession is akin go indicting Johnny Cash for having “shot a man in Reno just to watch him die.

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ACLU-NJ Stands Up for Student’s Free Speech Rights

March 28, 2014
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Mercer County high school prohibited student from flying Confederate flag on truck

NEWARK – The American Civil Liberties Union of New Jersey sent a letter to Steinert High School to Steinert High School Principal Frank Ingargiola this week expressing concerns about the school’s demand for a student to stop flying a Confederate flag from his truck in the school parking lot. When high school senior Greg Vied refused to remove his flag, the Hamilton Township school ordered him to remove his stars-and-bars banner by the time he came back to the campus after serving a separately issued one-day suspension.

“As a civil rights organization, the ACLU-NJ recognizes that for many New Jersey communities the Confederate flag represents a painful history. At the same time, suppression of constitutionally protected speech goes against our founding principles as a nation,” said ACLU-NJ Legal Director Edward Barocas. “As the U.S. Supreme Court has made clear, students' rights don't end at the school house gates -- they also don't end in the school parking lot."

The ACLU-NJ has urged school officials to rescind their calls for Vied to take down the flag. A number of court decisions – federal and state – protect Vied’s right to display the Confederate flag, most famously Tinker v. Des Moines, which allows censorship of student speech only if the administration can prove it would “materially and substantially” disrupt the operation of the school or interfere with another’s rights. The courts have upheld that the potential to offend does not alone constitute a material disruption.

“The First Amendment protects the right to express any viewpoint, no matter how unpopular, and therein lies its strength,” Barocas added. “As soon as we allow the government to silence one unpopular opinion – from the local school district to the president of the United States – the line between acceptable speech and banned types of thinking becomes dangerously blurred.”

In addition to defending the freedom of expression such as the flying of a Confederate flag, the ACLU-NJ fights doggedly for racial justice and equality in New Jersey, including work to end racial disparities in our broken criminal justice and education systems.

“The First Amendment protects the right to express any viewpoint, no matter how unpopular, and therein lies its strength,” Barocas added. “As soon as we allow the government to silence one unpopular opinion – from the local school district to the president of the United States – the line between acceptable speech and banned types of thinking becomes dangerously blurred.”

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ACLU-NJ Raises Concerns about Free Speech Rights at Christie Town Hall

March 19, 2014
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NEWARK – The American Civil Liberties Union of New Jersey (ACLU-NJ) is concerned about news reports that the State Police is photographing critics of Gov. Chris Christie at town hall meetings.

PolitickerNJ reported a plainclothes individual snapping photos of protesters at a Christie town hall in South River on Tuesday. According to the website, the photographer identified himself as a member of the State Police.

The following statement is from Udi Ofer, executive director of the ACLU of New Jersey.

Udi Ofer

"It raises serious First Amendment concerns that the State Police may be photographing protesters at Gov. Christie’s town hall meetings,” said Udi Ofer, executive director of the ACLU of New Jersey. “The State Police must come clean and explain to New Jerseyans whether it has a practice or policy of photographing people engaged in First Amendment protected speech. New Jerseyans must be able to express their viewpoints without having to fear police officers photographing them and creating political dossiers on them."

ACLU-NJ and Montclair Board of Education Reach Settlement over Subpoenas

December 17, 2013
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Montclair Board of Education Montclair Board of Education

NEWARK – The Montclair Board of Education has agreed to resolve the lawsuit filed by the American Civil Liberties Union of New Jersey (ACLU-NJ) on behalf of an anonymous internet commenter, known as “Assessmentgate.”

The settlement, approved by the board on Dec. 16, requires that the board withdraw subpoenas seeking identifying information about anonymous internet critics and take affirmative steps to notify anonymous internet users if the board subpoenas identifying information about them. As part of the settlement, “Assessmentgate” has agreed to respond to questions from the board without revealing who he or she is.

“While I’m glad this matter is resolved, I’m also frustrated: I would have responded to questions if the board had simply emailed me,” said “Assessmentgate,” the ACLU-NJ client. “Instead, the board chose to waste valuable time and tax dollars on an unconstitutional hunt for their critics instead of investing in our schools.”

On Dec. 4, the ACLU-NJ obtained a court order from the Essex County Superior Court that temporarily quashed subpoenas the Montclair Board of Education had issued to learn the identity of the ACLU-NJ’s client and that prevented the board from issuing additional subpoenas for similar information.

The board issued subpoenas seeking the identities of anonymous critics after copies of assessment exams were discovered to be posted to a public website days before they were to be given to students. The tests have been the subject of intense debate in Montclair. The ACLU-NJ’s client, “Assessmentgate,” has criticized the board for the tests anonymously on various community websites, but is not involved with the security breach.

“The school board overstepped its bounds in issuing these subpoenas. Our client’s answers to their questions will show that the board could not reasonably believe that Assessmentgate had anything to do with the release of the tests,” said Jeanne LoCicero, deputy legal director for the ACLU-NJ. “We all have the constitutional right to engage in debate about matters of public concern, and to do so anonymously.”

The board agreed to withdraw the subpoenas it issued to Google and to BaristaKids seeking identifying after it receives information from “Assessmentgate.” It also will reimburse the costs of filing the court action.

ACLU-NJ Wins Order to Temporarily Quash Subpoenas Issued by Montclair Board of Education

December 4, 2013
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School board issued subpoenas to Google and BaristaKids to learn identities of anonymous critics

NEWARK – A Superior Court Judge in Essex County issued an order temporarily quashing subpoenas issued by the Montclair Board of Education regarding an anonymous online poster represented by the American Civil Liberties Union of New Jersey (ACLU-NJ). In addition, the judge ordered that the board of education may not issue any additional subpoenas seeking the poster’s identity until the judge makes a decision on whether to permanently quash the subpoenas.

Another hearing on the issue is scheduled for January 9.

The ACLU-NJ filed a complaint on Dec. 3 and requested a court order to quash a subpoena the Montclair Board of Education issued to Google to learn the identity of an online poster who has criticized the district. The ACLU-NJ learned through a public records request that the district has also issued a subpoena to the popular community news site, BaristaKids, seeking the identity of its client and other anonymous critics.

The subpoenas were issued after a copies of assessment exams were discovered to be posted to a public website days before they were to be given to students. The tests have been the subject of intense debate in Montclair.

The ACLU-NJ is representing one of the anonymous posters, who uses the user name, “Assessmentgate,” who has denied having any involvement with the security breach. The Montclair Board of Education issued a subpoena to Google on Nov. 7 seeking identity of “Assessmentgate,” who uses a Gmail address.

“They have no justification for believing our client is responsible for the security breach, other than the fact that our client has been vocally critical of assessment exams,” said Jeanne LoCicero, deputy legal director for the ACLU-NJ. “Speculation and unsubstantiated beliefs can’t outweigh a person’s right to speak anonymously. Regardless of where you stand on the assessment exams, we should all respect the constitutional right to free speech.”

The ACLU-NJ is asking the Essex County Superior Court to block the Google subpoena and to stop the district from issuing subpoenas that seek to uncover “Assessmentgate’s” identity. The ACLU-NJ argues the subpoenas are unconstitutional because the board of education does not have the legal authority to issue subpoenas unless it is conducting a hearing regarding a school law dispute. It further argues that the subpoenas violate the well-established right to anonymous speech and to privacy.

On Thursday, Dec. 5, the ACLU-NJ will appear before the Honorable Thomas R. Vena of the Essex County Superior Court to argue that while its request to quash the subpoena is pending, that all subpoenas issued by the school board seeking identifying information about its client be temporarily quashed and that the school board be ordered not to issue additional subpoenas about its client’s identity.

On Nov. 1, the Montclair Board of Education adopted a resolution authorizing an investigation and hearings into the security breach. The resolution called for an investigation into leaked exams and into other “incidents of conduct contrary to the board’s best interest.” One week later, it sent the subpoena to Google for information about “Assessmentgate,” who has posted critical comments about the district on the community website Montclair Patch and created Facebook and Twitter accounts using a Gmail address. These accounts were created before the ACLU-NJ’s client knew about leaked exams.

“The Board of Education and Superintendent have shown they will stop at nothing to silence dissent by any means necessary, including ignoring citizens’ rights to free speech,” said “Assessmentgate,” the ACLU-NJ client. “If we can’t trust them to operate honestly and to abide by the law, how can we trust them to do what’s best for our district and our children’s education?”

The Montclair Board of Education also issued a subpoena to the editor-in-chief of BaristaKids, seeking the identities, phone numbers and email addresses of “Assessmentgate” and three other posters who have been critical of the district.

“The Board of Education has clearly overstepped its boundaries,” said Udi Ofer, executive director of the ACLU-NJ. “The board cannot legally issue subpoenas as part of a fishing expedition and target people who have simply been critical of its policies. The use of a pseudonym to engage in political debate is part of a rich historical tradition, and the Constitution protects the rights of our client in this case.”

The hearing seeking a temporary order is scheduled to be held on Thursday, Dec. 5, at 9:00 a.m. in courtroom 404 of the Essex County Historic Courthouse. The case is captioned Assessmentgate v. Montclair Board of Education, Docket No. L-9391-13.

Newark Police Settles Lawsuit Over the Arrest of Teen with Cellphone Video

November 19, 2012
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Newark will train officers on new policy that affirms citizens’ rights to videotape officers on duty

NEWARK – The American Civil Liberties Union of New Jersey (ACLU-NJ), Seton Hall Law School’s Center for Social Justice (CSJ) and the City of Newark have reached a successful settlement in the case of Khaliah Fitchette, a Newark teenager who was illegally detained by police for using her cellphone to record an incident on a public bus in March 2010.

In addition to the settlement, Police Director Samuel A. DeMaio has issued a training memorandum that affirms the rights of citizens to record police officers performing their duties and makes clear that officers cannot confiscate, delete, or demand to view a citizen’s photos or video without a warrant. The memorandum was issued in November 2011, as Fitchette’s lawsuit was pending.

The department will train officers on the new policy.

“We are pleased that the Newark Police Department has adopted a policy that clearly articulates and respects the constitutional rights of citizens to record police activity,” said Seton Hall Law Professor Barbara Moses, who, along with a number of Seton Hall Law students, represented Fitchette as a cooperating attorney for the ACLU-NJ. “We hope this policy prevents incidents like the one involving Khaliah Fitchette from ever happening again.”

Alexander Shalom, Policy Counsel for the ACLU-NJ, said other departments should follow Newark’s lead.

“With video technology so prevalent now, police officers have to clearly understand exactly what rights citizens have when they film in public,” said Shalom. “Newark’s policy makes clear distinctions about citizens’ rights, and every law enforcement department in New Jersey should adopt these kinds of guidelines.”

Fitchette, who was a high school honors student when she was arrested by police, said she hopes her case educates the public about their rights when it comes to recording police.

“I’m glad this is resolved and I can put this behind me,” said Fitchette, who is now a sophomore at Cornell University. “It’s important for everyone to know their rights, especially since most people now have cellphones with video capabilities.”

Fitchette was riding a public bus through downtown Newark after school on the afternoon of March 22, 2010. When the bus rolled down a hill, a seemingly intoxicated man fell from his seat and into the aisle, creating a scene. The driver pulled over and called Newark Police for assistance. Fitchette, who habitually used her phone to record or take photographs, began recording the incident. When the police arrived, an officer ordered Fitchette to stop recording and turn off the phone.

Fitchette stopped recording, but refused to turn off the phone to avoid missing any calls from her mom. The officer grabbed Fitchette by the arm and pulled her off the bus. One officer seized her phone and deleted the video. The police handcuffed and detained Fitchette for more than an hour, ignoring her pleas to call her mother. They finally dropped a tearful Fitchette at her mother’s workplace.

The ACLU-NJ and CSJ filed a lawsuit on Fitchette’s behalf on March 28, 2010, alleging the officers violated her constitutional rights to free expression. The lawsuit also alleged the search and seizure of Fitchette’s phone was illegal.

Recognizing the importance of taping police officers in public, the ACLU has challenged illegal police confiscations of cameras, which has become more prevalent across the country, including in New Jersey.

In July, the ACLU-NJ released a new smartphone application, “Police Tape,” which allows people to record and store interactions with police securely and discreetly. The app is available for free on Androids and iPhones.

Gov. Christie Earns Mixed Marks on Civil Liberties During His First Two Years

January 24, 2012
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ACLU-NJ examines Christie’s record on respecting rights

education

NEWARK – The American Civil Liberties Union of New Jersey (ACLU-NJ) released a midterm report card for Gov. Chris Christie today (182k PDF), issuing mostly low marks for his administration’s handling of critical civil liberties issues such as reproductive freedom and free speech.

The report card examines Christie’s record on an array of civil liberties issues during his first two years in office. The ACLU-NJ issued a similar report card for Newark Mayor Cory Booker (229k PDF) in 2009 during his first term in office.

“Christie has two years to turn a mediocre civil liberties record into a testament to individual rights,” said ACLU-NJ Executive Director Deborah Jacobs. “The people of New Jersey expect a leader who will stand up for their freedoms, not one who will let them know that despite his unfair policies, his heart is in the right place. It’s time for Gov. Christie’s good intentions to turn into policies that strengthen our rights and improve our lives.”

The ACLU-NJ issued the following grades:

  • B in Freedom of Religion. Gov. Christie made headlines several times in his first term for defending the religious freedom of Muslims and warning against extremists trying to promote discrimination against Islam.

  • F in Freedom of Speech. When provided the opportunity to speak up for our nation’s most fundamental value, the Governor stood idly by, letting the Department of Military and Veterans Affairs trample the rights of Occupy Trenton, and going so far as to endorse the termination of a NJ Transit employee fired for exercising his right to free expression.

  • B- in LGBT Rights. Although the Governor has spoken out against bullying and supported some interests of the LGBT community, he has turned his back on marriage equality for same-sex couples.

  • D in Open Government. Although the Governor signed a bill that lowers the cost of copies in New Jersey, his administration has put itself on the wrong side of open government disputes numerous times, allowing agencies to hide public documents and forcing citizens to go to court to get them.

  • C in Police Practices. Improvements made by the Office of Attorney General (OAG) to its statewide police Internal Affairs policies were a step forward, but the OAG has failed to address other important issues, such as developing a statewide policy on the use of confidential informants.

  • C in Privacy Rights. The governor conditionally vetoed a bill that sought to open adoption records, taking into account the privacy rights of birth parents. At the same time, he signed into a law a bill that allows police to collect DNA of people once they have been arrested in violation of privacy and due process rights.

  • F in Reproductive Rights. Not only did the governor cut $7.5 million from the budget for family planning centers, but he also withdrew an application for a federal program that would have covered family planning expenses for some of New Jersey’s most vulnerable women and children.

  • D in Separation of Powers. The Governor refused to reappoint New Jersey Supreme Court Justice John J. Wallace, Jr., calling into question the tradition of evaluating judges based on merits, and personally attacked a Superior Court judge because he disagreed with the outcome of her ruling. Gov. Christie’s actions threaten to undermine the judiciary’s independence and credibility.

ACLU-NJ Wins Temporary Restraining Order in Favor of Occupy Trenton Protesters

November 7, 2011
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NEWARK — A Superior Court judge has validated the free speech rights of Occupy Trenton protesters and has ordered the state (240k PDF) to return all of the food, medical supplies, computers and other property that it confiscated on October 14.

“This is a victory in our efforts to secure full free speech rights for Occupy Trenton,” said ACLU-NJ Legal Director Ed Barocas. “The state cannot arbitrarily create restrictive policies just because it does not like how people are using a public space.”

Superior Court Judge Mary C. Jacobson in Trenton granted a temporary restraining order (240k PDF) preventing the state from enforcing some of the “rules” issued in a letter from Raymond L. Zawacki, the Deputy Commissioner for Veterans Affairs in the Department of Military and Veterans Affairs, in response to the Occupy Trenton demonstration that began in Veterans Park on October 6.

Protesters will now be allowed to have their laptops, coolers, signs and other items at the park on State Street. The judge ordered the state to return all confiscated belongings to protesters by November 14. The judge further confirmed that the protesters must be allowed to maintain a continuous 24-hour presence at the park, although the protestors cannot set up tents or other structures.

The American Civil Liberties Union of New Jersey (ACLU-NJ) filed the lawsuit (2.3mb PDF) on behalf of Occupy Trenton on October 26. The lawsuit claims the state’s imposition of previously-nonexistent restrictions on the protesters, and the seizure of their property pursuant to those restrictions, violated their rights to free speech and due process.

Judge Jacobson acknowledged Occupy Trenton’s likelihood to succeed in the case, noting that the state failed to follow proper procedures when it made up the restrictions governing the use of the park. She explained that the Occupy Trenton demonstrators “are entitled to have restrictions on their constitutionally protected activities imposed by rulemaking and not informal action targeted at their demonstration.”

On October 26, ACLU-NJ cooperating attorney Bennet Zurofsky appeared in court to ask the judge to impose a temporary restraining order to stop the state from enforcing the illegal rules. The ACLU-NJ will appear in court again on December 19 for another hearing on the matter.

Occupy Trenton is also being represented by ACLU-NJ cooperating attorney David Perry Davis and ACLU-NJ Legal Director Edward Barocas.

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ACLU-NJ goes to court to defend Occupy Trenton's free speech

October 27, 2011
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State illegally confiscated computers, signs and medicine from protesters

TRENTON – The American Civil Liberties Union of New Jersey (ACLU-NJ) appeared in the Chancery Division of Mercer County Superior Court yesterday afternoon to stop the State from enforcing unconstitutional rules that violate the free speech rights of the Occupy Trenton protesters. The ACLU-NJ argued that the State illegally confiscated the laptops, coolers and other property belonging to the protesters on October 14 as a means to chill their free speech.

“The state cannot arbitrarily create restrictive policies just because it does not like how people are using a public space,” said ACLU-NJ Legal Director Ed Barocas. “Laws must be created pursuant to proper process, not created by executive fiat.”

The rules at issue were developed and enforced only after protesters first descended on Veterans Park on State Street on Oct. 6 with blankets, laptops, a small generator, coolers of food and tarps for rain. In the past, other groups have been permitted to use tables, canopies and other items that the State has prohibited Occupy Trenton from using.

On Oct. 13, Raymond Zawacki, Deputy Commissioner for Veteran’s Affairs in New Jersey’s Department of Military and Veterans Affairs, issued an edict restricting any camping or picnicking items from the park. The next day, the State Police confiscated most of the protesters’ property, including their computers, coolers, the generator and their protest signs.

During the hearing, ACLU-NJ cooperating attorney Bennet Zurofsky argued the state cannot inhibit speech activities simply because it doesn’t like the aesthetics. Zurofsky also pointed out that picnicking - including with items like coolers and chairs - is just the kind of activity for which parks were designed. The Attorney General’s office argued in court that the State can make up whatever rules it wishes regarding its property and that any “unattended” property should be considered “abandoned.” The State has essentially taken the position that property, including protest signs, is “unattended” if it is not within arm’s length of an individual. Indeed, the State seized protestors’ property despite the fact that the protestors are within a few feet of their items.

The ACLU-NJ asked the court to impose a temporary restraining order to prevent the State from infringing upon the protestors’ fundamental rights. The judge is expected to rule in the next few days.

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ACLU-NJ’s Statement on Union Township School Teacher’s Facebook Post

October 18, 2011
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NEWARK — Although we do not agree with the sentiments expressed on Union Township teacher Viki Knox’s personal Facebook page, her beliefs and comments are protected by the First Amendment. But because her postings raise questions about her conduct within school, the school district can and should investigate whether she is performing her job in accordance with school policies and the state's Law Against Discrimination.

The ACLU believes that the response to offensive speech is not the restriction of speech, but more speech, which is why the ACLU has created programs like the "Don’t Filter Me" project, which ensures the public schools aren’t illegally denying students access to positive, affirming information about LGBT issues. The ACLU-NJ has participated in this program and successfully advocated for a school in Vineland to remove a filter blocking sites that were supportive of LGBT issues.

Ms. Knox’s Facebook comments highlight the work that still needs to be done to help people understand why LGBT equality is so important. The ACLU will continue working hard to make sure public schools are safe for all students, including LGBT students, in New Jersey and in communities across the country.

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