This post is a bit more personal than the others I’ve written, about the situation going on in Mahwah, NJ.
In this post, I’d like to talk about the civic violations taking place in Bergen County, where I live. How my rights and the rights of others have been and continue to be violated, and exactly what that means for society when these types of infringements go unchecked.
On July 27, the Town Council in Mahwah held a hearing (the video for a portion of the meeting can be found here and here) in which the public portion of the meeting, which by statute is “for public comment on any governmental… issue that a member of the public feels may be of concern to the residents of the municipality” was censored for several speakers. Nylema Nabbie, Mahwah’s attorney from the law firm of Gittleman, Muhlstock & Chewcaske, LLP stated:
“I do not want a situation where I sit here and I allow comments to come in to create a record that can then be used against this body in a subsequent litigation. That is the purpose of restricting comments.”
With that, she cut off comments that were disapproved of by the governing body and wouldn’t allow people to voice comments on several governmental issues that they felt may be of concern to residents of the municipality. If she felt it may lead to litigation or problematic outcomes, it was verboten.
The next meeting, which took place yesterday, August 10th, went slightly differently. Yesterday, the public was suddenly permitted to talk about the Eruv and religion, but limits were still enacted for some speakers. Council President Robert Hermansen cut off Englewood Councilman and East Coast Director of the Simon Wiesenthal Center, Michael Cohen when he attempted to give remarks on tolerance and diversity that rankled the feathers of Mr. Hermansen. You can watch the video here.
This is a truly despicable display for a governing body.
As the vice-chairman of the Planning Board in Teaneck, NJ, I’m not only familiar with the types of sign codes and ordinances at issue in the dispute in Mahwah, but I know the public responsibility vested in those holding meetings such as these. It is deeply disturbing from a civic standpoint, to see elected representatives show so much disdain for those they are supposed to be serving. The First Amendment is at it’s zenith when citizens are speaking to leaders in a public meeting of government. Yet, here, those leaders cut off the right of the public to speak.
To support such a system as the one advocated by the Mahwah Town Council and their attorneys would be to adopt a limitation on First Amendment rights (as well as in contravention of State Statute) because the government disagrees with the speech of the people it purports to serve.
When I got up to speak, I asked Mr. Hermansen to get a legal opinion regarding censorship of the public, the township attorney, Brian Chewcaske stated:
“The First Amendment is not an unfettered right and therefore there can be limits imposed by the council both in time and place as to what can and can’t be said”.
I asked him: “Is that your opinion under the open public meetings act?”
Mr Chewcaske responded: “Yea, that’s my opinion under the open public meetings act and based upon other caselaw that has come out on statements made at meetings and therefore it can be constricted and it can be controlled.”
You can watch the exchange here:
The claim that the “First Amendment is not an unfettered right” is pretty meaningless. Over at Popehat.com, Ken White offers this explanation as to why:
“The observation “not all speech is protected” adds nothing to a discussion because it offers no mechanism for determining whether the speech at issue falls into a traditional exception or not.”
In order to prohibit speech and place it outside First Amendment protection, one must look to the tests laid out in the Supreme Court’s precedents. There is no reasonable category these comments could possibly fit that wouldn’t accord them First Amendment protections in the context of an open governmental meeting.
Imagine if that were the case. A government creating a law that was clearly unconstitutional, would be permitted to block residents or other public comments from noting the clear unconstitutionality of the law before it’s enacted, because it could invite litigation. This is an absurd result. Yet, that was the claim by the township attorney on July 27th as I was cut off from speaking. She said: “Your suggestion sir, your implication is that this municipality’s zoning ordinance is somehow deficient or unconstitutional and that is the problem that I have with the statements that you made.”
Mr Hermansen and members of the Mahwah Council: YOU ARE NOT KINGS. It’s inherent in our system of governance, the foundation of our very democracy that the people are permitted to tell their emperors that they are not wearing any clothes. You have violated that sacred public trust that the people conferred upon you with when you were elected. You must rectify this situation and firmly embrace the values of free speech and open governance.