JAY LASSITER’S POTENTIAL TO MATTER ? A KINETIC CONSTITUTIONAL QUAKE!

The purpose is to review two matters concerning the termination of Jay Lassiter’s access ID to the New Jersey Statehouse which was originally issued for the purpose of reporting on the Legislature. Thus it’s asked:

1. Whether the termination of Blue Jersey Jay Lassiter’s state house ID involves First Amendment Free Speech rights, is a police power issue, both, or neither.

2. And, in light of looking at the above, whether Blue Jersey “Jay Lassiter’s Potential to Matter” is actually a wrongdoing of Constitutional dimension.

Subjective and objective methods are the basis for deciding whether, intentional or not, the Free Speech Rights of Blue Jersey and Jay Lassiter have been violated.

The subjective method primarily relies on the acting party(s) explanation of their motive for taking the action. The objective method looks at all the facts that can be gathered and asks whether observers of the incident would draw the conclusion that it is more probable the act was taken to suppress speech and, if so, the subjective explanation is a pretend reason used to cover-up the suppression speech.

The reasons offered for taking Blue Jersey Jay Lassiter’s permission rely on two archetypical political defenses. The first excuse is there are no issues of Free Speech involved in the revocation. More to the point, Free Speech is not an issue because the elements that identify a matter as a Free Speech issue are not present in either a general action or in the specific application to Blue Jersey’s Jay Lassiter. This line of reasoning seldom holds water and such is the case here.

Strictly speaking, the First Amendment provides “Congress shall make no law … abridging the freedom of speech, or of the press …” If , however, one believes the U.S. Supreme Court rulings that applying these rights to State governments is “judicial activism”, these rights are also, strictly speaking, explicitly embodied in the New Jersey Constitution (“No law shall be passed to restrain or abridge the liberty of speech or of the press.”).

The second excuse says that even if issues of Free Speech do come into play, the “but-for” police power of the State is an exemption. A typical example is making it a crime to lie when yelling “fire” in a theatre. Obscuring Constitutional rules, however, is a slippery slope as exceptions, be they partial birth abortion or bong hits for Jesus, gradually hollow out the rule, build like a tidal wave to overwhelm the right, and only recede when the right becomes the exception.


With this in mind, let’s look at some the pertinent facts. No one disputes that Blue Jersey and Jay Lassiter have a substantial interest at stake, buttressed by the fact the State concedes “Mr. Lassiter … was selected [by the State] in April to become … the first blogger to cover the Legislature.” Since the State Police issue the IDs one must assume they reviewed the situation and provided the ID. So too, one must also concede that while Jay Lassiter may not meet every possible criteria for issuing the pass, he meets sufficient and determinative criteria to warrant the ID being issued, i.e. he regularly worked in the building. And, without more, one must also presume the issuers are competent and thus Jay Lassiters’ ID is valid. Furthermore, the State’s interest in security does not appear to be an emergency and is neither “necessary or compelling” as “[o]fficials said there is nothing in Mr. Lassiter’s background that prompted the reversal.” Finally, aside from an assertion he described something(s) or someone as a “nincompoop”, and with out knowing whether these things could be reasonably described as nincompoopery, it seems clear Jay Lassiter did not disturb Legislative functioning.

The question, therefore, is what legitimate authority gave AG Rabner the power, in what might well be his final act before assuming the office of Supreme Court Chief Justice, to act as the court of final review, and without notice, revoke Blue Jersey Jay Lassiter’s presumably valid building ID? Since Blue New Jersey and Jay Lassiter have a valid First Amendment interest in working regularly at the Legislature, and since the State recognized Jay Lassiter met sufficient relevant criteria to issue the ID, and since there was no emergency the lack of an administrative hearing prior to termination is inexcusable. Thus, both Blue Jersey’s and Jay Lassiters’ Free Speech rights and First Amendment interests are presumably abridged and the Constitution violated by AG Rabner’s whimsical termination of them.

Ain't that right, Stu.

BORN ON THE 4TH OF JULY - BLUE JERSEY, JAY LASSITER & THE NATTERING NABOBS OF NEGATIVITY

For the last five days, urban, suburban and rural Americans have been practicing the rituals associated with the founding of the nation. The Fourth of July is a time for parades, barbeques and fireworks. Time at the shore or lake. Stories honoring the troops in Iraq, movies about Patriot troops and militias battling British regulars and mercenaries. And, underling it all, sprinkled throughout the mix, a flow of deferential remarks about the Declaration of Independence and reverent speeches about the Constitution parse the Holiday conversations. Homage is paid to the blessings of being an American and the need for the vigilance necessary to perpetuate these good things.

In keeping with the spirit and basis for the holiday it is appropriate and necessary to take a moment to ask what are we celebrating? What are we fighting for? What do these documents mandate and what resultant way of life do we truly value?

Central to both the act of governing and the check and balances of the people on its government are the “nattering nabobs of negativity.” Since our inception, from the time of Publius and the Pennsylvania Farmer through the Pentagon Papers to the Abu Ghraib photos, reports of wireless wiretapping, and the U.S. Attorney scandal, the press, in all its forms and machinations, for all the criticism and its faults, has somehow continued to stir the pot and defend the right of the people to know. In doing so the press facilitates the right of the people to make informed judgments about their government and their right to be heard. Their right to say “enough.” So in that quite moment of reflection on this day cherish the irreverence of Thomas Nast, be thankful for papers like the New York Times, defend the right of the Don Imuses and Ann Coulters to make outrageous remarks, and be comforted by the taking-up of the torch by a new generation of nattering nabobs like BlueJersey’s Jay Lassiter.

SUPPLEMENTAL BACKGOUND

Our politicians talk endlessly about the “freedom of the people” and “the people’s exercise of liberty” in the pursuit of individual happiness. So far so good. But let’s take it one step further. It seems to go without saying that without the Bill of Rights there would be no Constitution and the Declaration of Independence would be nothing more than a failed articulation of human aspirations.

The Constitution recognizes three independent branches of Government: (1) the congress that makes the laws of the land, (2) the executive who implements the laws of Congress, and (3) judiciary that resolves disputes arising from the laws and their implementation. The Anti-federalists, however, saw the establishment of the horizontal machinery of Government as necessary but not sufficient because it did not provide vertical checks and balances. It did not formalize the vertical relationship between the first three branches of government and the fourth, the people. Thus the Bill of Rights was created as a mechanism to insure the government did not usurp the power of the people and suppress the legitimate role of the people in their own governance. It was created to require the government control itself.

The New Jersey Constitution, whether by incorporation or declaration, is a cut of the same cloth. It is a product of the same concerns.