LAKEWOOD – An attorney representing a developer caused a scene at the last meeting of the Lakewood Zoning Board of Adjustment when he demanded the removal of a citizen’s microphone from the podium, despite the fact that the township already had a microphone recording from the exact same location.
Things continue to get weird at public meetings of the Lakewood Zoning Board of Adjustment, as thanks to the efforts of an activist, appointed zoning board members and politically connected developers continue to grow uncomfortable with the new era of transparency in recent months – ushered in against their will – largely due to the unrelenting presence of a camera at the board’s public meetings.
When we last checked in with the township’s zoning board back in September, its chairman, Abe Halberstam, attempted to mock and intimidate the citizen who has been showing up to Lakewood’s meetings, recording them on camera, and uploading them to YouTube under the name “First Amendment Activist.” In response to the camera and videos, other zoning board members have chosen to walk out of past meetings of the board due to their disdain for the camera.
This time around, Lakewood lawyer Abraham Penzer, who appeared before the board at the October 31st meeting to represent builders seeking a variance to construct 10 2-story multi-family dwellings with basements, according to the zoning board agenda. Mr. Penzer demanded the removal of a citizen journalist’s microphone from the podium, despite the fact that the township already has its own microphone on the podium making a recording of the proceedings.
“It’s a very sensitive mic that he doesn’t have the right to have,” Penzer declared. “This violates my client’s rights for me to advise them what to say and what not to say.”
Mr. Penzer portends that the presence of the additional microphone at the podium somehow infringes on the right of his client to make attorney-client privileged communications, and he refused to present the application to the board so long as it remained on the podium. The display eventually saw a Lakewood police sergeant step in to attempt to resolve the dispute between the lawyer and the cameraman, as the First Amendment Activist’s YouTube video showed.
“So you can’t just step away from the podium and talk to your client?” questioned the sergeant , who stepped in to mediate the dispute. As the back-and-forth continued, Michele Donato, a lawyer representing homeowners opposed to the project Penzer represented, accused Penzer of bluffing. “I think you’re just trying to make an excuse to get this put off,” Donato quipped.
The board then turned to zoning board attorney Jerry Dasti, who later left the room to “ponder this.” At Dasti’s recommendation, the application has been moved to the November 14th meeting of the board. Dasti indicated that Penzer attempted to call Lakewood’s township attorney, Steven Secare, to get an opinion from as to the legality of the microphone, but instead got Secare’s voicemail. Dasti said that the board should “do the best we can to make sure there is no appealable issue on this,” and that he would be speaking with the attorneys in the weeks before the November zoning board meeting to ascertain whether or not the microphone’s presence would present an issue of attorney-client privilege.
Flawed Legal Analysis From Lakewood Developer’s Attorney Cites Stale Case Law
It should be noted that Mr. Penzer, the attorney who was attempting to remove the microphone from the podium offered a questionable legal analysis with respect to the legality of the activist’s microphone in support of his demands for the microphone’s removal. In his speech to both Lakewood zoning board members and attorney Jerry Dasti, he cited the 1919 Schenck v. United States ruling as grounds for the microphone’s removal from the podium.
“Under U.S. v. Schenck, which is a United States Supreme Court case, the court says that everybody has a right to protected speech – you can say whatever you want – but you can’t go into a crowded theater and yell ‘fire fire’ so there is a gradation of how far protected speech goes,” Penzer asserts. “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,” he said.
Fact Check: Is A Microphone Really A “Clear And Present Danger” At Lakewood Meetings?
While his statement regarding the classic “shouting fire in a crowded theater” example is correct, using that case as grounds to suppress media coverage of a zoning board meeting is a complete stretch. The Schenck case dealt with the distribution of anti-draft literature to draft-age men by an activist during the first world war. In this case a unanimous Supreme Court under then-Chief Justice Oliver Wendell Holmes established the “clear and present danger” test for penalizing speech that encouraged others to behave in a manner that would break the law, in this case, encouraging draft dodging.
“The question in every case,” Holmes wrote in a unanimous 1919 opinion. “Is whether 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,” (emphasis added) Holmes wrote in the 1919 opinion.
Even if, for the sake of argument, this case was still the controlling precedent with respect to language and actions not protected by the First Amendment, on its face, the mere presence of a microphone has nothing do with inciting others to break the law in the context of a public zoning board meeting. The only disruption to the meeting has been the reactions of public officials and developers to the presence of the camera, not the cameraman and his equipment.
In modern times, the Schenck precedent is stale case law, and its “clear and present danger” test fell out of favor after a 1969 case before the United States Supreme Court. In a case dealing with a speech given by a KKK leader, the court in Brandenburg v. Ohio narrowed what could be defined as unprotected speech, scrapping the “clear and present danger” test from Schenck in favor of the more precise “imminent lawless action” test established in Brandenburg, which created a higher bar for the prosecution to meet in cases alleging that the defendant is inciting others to break the law. The Schenck test, however, was comparatively easier to meet for governments looking to suppress speech deemed as inciting others to break the law. Now, rather than having to meet the “clear and present danger” test, under the precedent established by Brandenburg, for speech allegedly inciting violence to be held as unprotected by the First Amendment, the government must now meet a two-pronged test demonstrating that the language is “…directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (emphasis added)
At the state law level, both the Maurice River cases, which involved a teacher’s union filming school board meetings against the board’s wishes, along with the state Supreme Court’s decision in Tarus v. Borough of Pine Hill Supreme Court ruling, New Jersey’s justices ruled that citizens have a common law right to film at public meetings, provided that those filming do not interrupt the conduct of the meeting.
In our view, the only “clear and present danger” posed by the microphone’s presence is a danger to government secrecy and special deals for developers.