Response from First Amendment Activist to Lakewood zoning board attorney

Dear Mr. Dasti,
In your letter dated 11/7/2016 referred to as Lakewood ZB – Video and taping issues GL-25368 you refer to the issue that arose at the 10/31/16 zoning board meeting. At that meeting, Abraham Penzer cited concerns regarding the precision of my microphone causing interference with communications with his client. He claimed that this would cause a violation of attorney client privilege.
Mr. Penzer incorrectly cited U.S. v Schenck to support his argument that my first amendment rights to record are somehow limited to the extent that they limit his ability to talk to his client within close proximity of the podium. Notwithstanding the fact that the township has a microphone on the podium as well, Mr. Penzer’s attempt to apply U.S. v Schenck is incorrect. In U.S. v Schenck, the ruling provided limitation to the first amendment in a case where “the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent”. It is obvious that there is no clear and present danger to anyone in this case and that the application of case law was incorrect. Additionally, in 1969, Brandenburg v. Ohio established that the “clear and present danger” metric be replaced with an “imminent lawless action’ test. The current standard based on the Supreme Court of the United States Brandenburg v. Ohio required “directed to inciting or producing imminent lawless action and is likely to incite or produce such action”.
Furthermore, Mr. Penzer could easily step a few feet away from the podium where the microphone would not detect anything that he says. Mr. Penzer claimed – “He has a right to protected speech to repeat anything as a first amendment right, but I have a right to talk to my client alone”. Since these meetings are usually crowded and there are many people seated all around the room, by Mr. Penzer’s claim for a need to talk alone he should need to anyway leave the room or retreat to a private corner to protect his clients rights especially considering that the township microphone is located on the podium. As a matter of fact, at the 10/31/16 meeting he was asked precisely that by the sergeant on scene – “So you can’t just step away from the podium and talk to your client?”
In NJ, Taurus v. Borough of Pine Hill and Maurice River case both supported the right of citizens to film at public meetings provided that those filming do not interrupt the conduct of the meeting.
It’s very clear that in the 10/31/16 incident, there was no valid claim to Mr. Penzer’s argument to limit my right to record considering that there is no existing ordinance from the board pertaining to video recording restrictions. As a matter of fact, it’s fair to say that any interruption of the conduct of the meeting was caused by Mr. Penzer – my cameras are quiet, unobtrusive, and usually cause no issues. In this case is was Mr. Penzer who used a poor argument with no legal standing to cause a scene leading to the letter that you penned to me on 11/7/16 regarding this matter.
Now that Mr. Penzer’s argument is out of the way, let’s discuss Taurus v. Borough of Pine Hill. Several possible negative consequences are mentioned regarding distracting judges or jurors etc. but no mention is made of any possible issues with the microphone recording conversations held in the middle of a public meeting hall.
Some key quotes from that ruling are:
The common law therefore has evolved to embrace additional means for documenting public proceedings not fewer….(finding that common law is flexible and can be adapted to advancing technology)… (“The essence of the common law is its adaptability to changing circumstances”). Sudol, supra, *1044 emphasized the need for the law to adapt to that recording evolution, and, in doing so, illustrated how the common law applies common sense:
Suppose, for example, that the [local public body] had attempted to prohibit the use of pen, or pencil and paper, at the sessions held by them; such a measure would at once strike anyone as being
an improper means of exerting official power, and the surprise and dissatisfaction generated by such an arbitrary rule would undoubtedly lead to a prohibition by the courts of such a foolish attempt to exercise governmental power. “The plain and simple truth is that in today’s modern world, the state of the art is such that has become a part of the very fabric of modern life. To foreclose its use where the democratic process is complete, as at a public meeting, would not only be unrealistic but irrational.”
Although some citizens may be fearful of video cameras, we find that consideration insufficient to deny the right to videotape. “Further, no right of privacy protects a citizen’s public comments. “Those who attend [public] meetings . . . fully realize that their comments and remarks are being made in a public forum.” Mitchell v. Bd. ofEduc, 113 A.D.2d 924, 925, 493 N. KS. 2d 826 (1985). As such, “[t]he argument that members of the public should be protected from the use of their words, and that they have [a] privacy interest in their own comments, is therefore wholly specious.” Ibid. Taken as a whole, the benefits of video recording far outweigh the perceived drawbacks, and the modern use of video cameras buttresses the common law right to videotape.”
The Appellate Division correctly noted that the common law right to videotape is “neither absolute nor unqualified.” Tarus, supra, 381 N.J.Super. at 424, 886 A.2d 1056. Citizens are not permitted to disrupt meetings with their recording * 1048 equipment. Accordingly, public bodies may impose reasonable guidelines to ensure that the recording of meetings does not disrupt the business of the body or other citizens’ right of access. Cf Nevens, supra, 44 Cal. Rptr. at 52 (finding that city council’s restrictions on common law right to videotape were “too arbitrary and capricious, too restrictive and unreasonable”). In Maurice River 11, supra, the Appellate Division held that a public body could implement “guidelines designed to regulate and control reasonably the videotaping of its public proceedings.” 193 NJ Super. at 494, 475 A.2d 59. In all circumstances, such guidelines must be neutrally adopted and administered, and limited in scope to the stated purpose of preventing disruption. Ibid.; see, e. g., Mass. Gen. Laws Ann. ch. 39, § 23B (conferring right to videotape public meetings to any person in attendance “provided[] that in such recording there is no active interference with the conduct of the meeting”); Mich. Comp. Laws Serv. § 15.263 (stating that right to videotape is subject to “reasonable rules and regulations in order to minimize the possibility of disrupting the meeting”).
The guidelines can “include the number and type of cameras permitted, the positioning of the cameras, the activity and location of the operator, lighting and other items deemed necessary to maintain order and to prevent unnecessary intrusion into the proceedings.” Maurice River 11, supra, 193 NJSuper. at 493, 475 A.2d 59.
Reasonable restrictions may also include those designed “to preserve the orderly conduct of a meeting by controlling noise levels [and] spatial requirements . . . L] to safeguard public facilities against damage . . . to the meeting hall’s electrical system…
Therefore, we’ve established that Mr. Penzer’s concern is irrelevant and inconsequential in regard to any matter related to microphones. Any guidelines passed by the board in an attempt to satisfy his particular concerns or mannerisms in client interaction would not meet the litmus test of being “neutrally adopted and administered, and limited in scope to the stated purpose of preventing disruption” nor would it be warranted as the camera and microphones unobtrusive presence in no way causes “the possibility of disrupting the meeting” or “to disrupt meetings with their recording”.
Furthermore, attempt to limit the number of devices to one are unreasonable considering that my 2 cameras are both necessary to accomplish the goal of unobtrusively capturing both the lectern and the board members and while satisfying “embrace additional means for documenting public proceedings not fewer”. My cameras are small and do not present any disruption whatsoever other than that caused by Mr. Penzer’s attempt to use a fallacious argument to stall an application that had an opposing lawyer.
My microphone is no more sensitive than any other. Feel free to inspect it at the Nov 14th meeting. It is a standard recording device arguably not proven to be any more sensitive than the township microphone. Additionally, a restriction of one microphone per person would not preclude a second individual either connected or unconnected with me to set up their own personal camera in lieu of my 2nd camera thus negating any benefit that this ordinance would seek to derive for the proceedings. Additionally, I or any individual would be free to sit in any of the number of seats near the podium and use a microphone on my body to record the proceedings (and according to Mr. Penzer violating his right to have private conversations in a public setting). In the event that the board would chose to pass such ordinances, it would clearly be aimed at restricting my access to properly record the public proceedings without using other such means to accomplish the same goals thus negating any perceived benefit to be derived from the ordinances.
Your letter states an intent to recommend an ordinance that would require any and all video cameras to be placed only in the rear of the room. The room is large and noisy and the townships PA system is poor. This would only allow viewers to have a view of the backs of the people presenting at the podium which is where the majority of minutes of the meeting are generated. This would also not allow for a proper audio recording of the proceedings. This would clearly not meet the metric of “embrace additional means for documenting public proceedings not fewer” nor is it in line with the growing technological age where the public desires more views, angles and higher resolution so as to fully appreciate and review the content of the public meetings.
Please consider this when creating proposed guidelines that you intend to forward to me before 11/14/16 for my review and comment. The same way you took Mr. Penzer’s argument seriously, I urge you to strongly consider whether or not my 2 small cameras really represent a disruption to the meeting and whether or not the board has actual legal standing to place an unreasonable restriction that limits my ability to use modern technology to properly capture the proceedings. While it is clearly reasonable to restrict 5-10 obtrusively placed cameras that people are tripping over, my 2 small cameras and my one microphone cause no reasonable disruptions to the meeting and should clearly be allowed.
Very truly yours,
S. Klein