A Small Town in Pennsylvania Is Treading on This Naval Officer’s First Amendment Rights

By Witold Walczak, Legal Director, ACLU of Pennsylvania

Pictured: Lt. Com. Joshua Corney stands in front of his loudspeakers on his property in Glen Rock, Pennsylvania.

Lieutenant Commander Joshua Corney, an active duty naval officer who lives in rural Pennsylvania, returned from combat zones in Iraq and Afghanistan with a promise. As he settled back into life stateside, he wanted to offer a meaningful tribute to his fellow service members — especially those who never had the chance to come home.

So, in 2015, he started playing a recording of taps — a military bugle call most often heard at sunset and at military funerals — on his five-acre property in Glen Rock, a small town of 2,000 people near the Pennsylvania-Maryland border. Every evening before 8:00 p.m., Lt. Commander Corney would offer the musical testament to all who have served.

“I play this audio memorial in remembrance of those who paid the ultimate sacrifice as well as those who continue to serve and protect our country and freedoms,” said Lt. Commander Corney, who is represented by lawyers from the ACLU of Pennsylvania. “It is a way to honor a promise I made to God — by taking 57 seconds each day to reflect on sacrifices made 24 hours a day, 365 days a year to obtain and sustain our freedoms.”

For nearly two years, his tribute went on with little controversy. The borough allows other music to be amplified on a regular basis, including church hymns and bells and live performances at a local restaurant. At less than a minute long, the recording of taps was one of the borough’s shorter pieces of amplified music. When one neighbor approached Lt. Commander Corney about a year ago to ask if he could turn down the volume, Corney accommodated the request by reorienting the speakers away from the neighbor’s home. But this spring, the controversy erupted when another neighbor complained to the borough.

In response, the borough ordered Corney to limit the playing of taps to Sundays and what it termed “flag holidays.” Each violation of the borough’s order would bring a criminal fine of 300 dollars. But the borough’s enforcement action involves two big constitutional no-nos: the heckler’s veto and content-based censorship.

The borough is relying on a nuisance ordinance that prohibits sound that “annoys or disturbs” others. In a patriotic town like Glen Rock, which is home to many military veterans, it’s no surprise that Lt. Commander Corney has many supporters. But a single complaint triggered the enforcement action. If a “heckler” could shut down anyone who said or played something that annoyed or offended them by complaining to government officials, freedom of speech would be no more. For more than 75 years, it has been black letter First Amendment law that the government cannot censor speech simply because it is not universally appreciated.

Moreover, the borough cannot use its vague nuisance ordinance to single out only Lt. Commander Corney’s musical expression for censorship from the range of sounds that are part of the borough’s regular sonic landscape. The borough has not ordered Lt. Commander Corney to lower the volume of taps or claimed he has violated a noise-level ordinance.

And it could not claim such a violation because the recording neither exceeds any established noise levels nor is it as loud as many other sounds the borough tolerates — including many sounds that do not communicate a message, like lawnmowers, leaf blowers, chainsaws, and vehicles. Censoring clearly protected expression, like taps, for being too loud, while allowing louder sounds that carry no constitutionally protected message turns the First Amendment on its head.

The borough has decided that taps alone, among the other musical sounds in the borough, must be silenced. The borough may not make this type of “content-based” distinction without some compelling reason, which doesn’t exist in this situation.

Last week, the ACLU of Pennsylvania sent a letter to the borough council to insist that Glen Rock drop its threat to fine Lt. Commander Corney and honor his First Amendment right to free expression. The dispute is not yet resolved, but on Friday the borough indicated that it would review the ACLU’s demand at its regularly scheduled July 19 meeting. In the meantime, Lt. Commander Corney will resume his nightly ritual.

Free-speech cases often arise in unusual settings. Some people may be surprised that a serviceman’s broadcast of taps — a song widely regarded as patriotic and intended to honor the sacrifices of those who place themselves in harm’s way to fight for our constitutional rights — would end up being the focus of a First Amendment censorship battle. This controversy is a reminder that no matter who you are or your station in life, you may need the Constitution.

Originally posted at Speak Freely by the ACLU.

Hurricane Fredia

Fredia Hurdle

Fredia Hurdle, October 15, 1963 – August 7, 2014

When they made Fredia Hurdle in 1963, they broke the mold. It was an unusual mold, to be sure. And if you knew her and are reading this don’t deny that you’re nodding your head in agreement. But if we could have more Fredia Hurdles this world would be a better place, a much better place, in every way. There aren’t many people we are fortunate enough to know who can honestly be called beautiful people; kind, considerate and funny, but Fredia was elite.

Many people have joked that Fredia is the life of every party. Let’s be clear; that’s not a joke. Sometimes she was the party. She’d blow in like a hurricane. Her gregariousness, love of life and rosy outlook made her a natural party girl. But, hey, that’s not such a bad thing. One of Fredia’s enduring qualities was making people smile and feel good about themselves. We could use a bit more of that.

I first met Fredia years ago. She was the partner of Lynn Hurdle, a nurse who worked with my wife, Kathy. Fredia was one of the dozens of spouses who came to our home for the annual office holiday party. I don’t recall how or why or any details, but the bond between us was instant. One year she even loudly joked, so that many people heard, that the jeans I was wearing made my ass look so good it could turn a lesbian straight. While I wanted to crawl in a hole, and my wife ribs me about it to this day, Fredia fondly recalled that night every time she saw me in jeans. She always knew if it was the same pair of jeans or not. It made me, and a lot of other people, laugh.

Lynn & Fredia Hurdle

Lynn & Fredia Hurdle

In the Spring of 2013, the ACLU began looking for gay and lesbian couples who might be good candidates to become plaintiffs in a lawsuit to challenge Pennsylvania’s ban on same-sex marriage. A few years back, Lynn and Fredia invited us to their wedding (though, sadly, not one that made them lawfully married, but we were trying to change that). It was probably the most fun wedding we’ve ever attended. The wedding procession actually danced down the aisle of the church in beautiful harmony to the sounds of a funky beat, Lynn, resplendent in her white gown, and Fredia, stunning in black tuxedo. This was a couple I wanted for the lawsuit. As I would soon learn, this was not only a beautiful couple who exemplified the injustice of a marriage ban, but the couple everyone would want living next door.

In May 2013, we met at a nearby bar for me to formally consider them to be plaintiffs. They had a great get-together story, which a reporter later dubbed “dating by Greyhound.” Lynn had been on a trip from Meadville to Pittsburgh and the driver, who turned out to be Fredia, was new to the route and needed help with directions. Lynn volunteered. Depending on which one of them told the story, Lynn either was or was not responsible for getting them lost. But in either rendition, their affection for each other was obvious and genuine. They both laughed and that radiant, watery-eyed look people get when they are filled with joy alighted on each of them. By inviting them to be considered for the lawsuit, I’d sensed they’d be good models to show the world why same-sex couples should be treated like everyone else, but the evening probing deep views on love, romance, marriage and family, and their beautiful shared history, sealed the deal.

The evening also produced a classic Fredia moment. Fredia had been eyeing a man who sat down at the table across from us with his teenage son. Let’s just say the man was pretty buff, which Fredia was noting for us. Suddenly, she excused herself and walked over to the adjoining table, rubbed the man’s arms and told him how sexy they were. From the mortified look on his face I was worried that he was going to kill her. But the next thing I know the three of them are joking and laughing. A half hour later when the pair left they yelled out, bye Fredia, like old friends. Two more unsuspecting people had been touched by hurricane Fredia’s magic.

Being a plaintiff in the ACLU’s marriage case, Whitewood v. Wolf, revealed another side of this woman, whom I had come to call a friend. The lawyers worried, me included, whether we could keep her focused and serious long enough for a deposition, or to testify at trial. We need not have worried. The deep discussions about love and relationships and fairness brought out a keen insight. Fredia thoughtfully reflected on how when she was born in Virginia a white person couldn’t marry a black person, and how it was her home state that several years later produced the groundbreaking Supreme Court case of Loving v. Virginia, which declared miscegenation unconstitutional. Fredia noted the ridiculousness of the fact that she, as a black woman, could marry Lynn, a white person, but they couldn’t marry because they were of the same sex. Fredia often became indignant at the unfairness of it.

Fredia also opened up about the difficulties of not only being a lesbian, but being a black lesbian in an interracial relationship. She told stories of slights and slurs, yet never showed any ill will toward the bigots. She and Lynn had opened their homes to people in distress, taking in countless relatives’ kids, foster children and even helpless senior citizens. Fredia fondly observed that she didn’t want Lynn and her to be known as the lesbian couple, or the interracial lesbian couple, but simply the nice couple on the corner that’s always there with a smile, a helping hand and even a welcoming home.

Fredia was too young and too wonderful to leave this world, but leave us she did this past week. Tragically, at age 50, Fredia Hurdle died of a massive stroke on Thursday. Ashley, Lynn’s daughter who Fredia helped raise from age 2, is set to get married in a few weeks. Sure, Fredia was the party girl who made everyone laugh, but too few people in life make it their mission to cheer others up. Fredia was also one of those few people who chose to see the good in everyone, always remembering and inquiring about problems they may have shared in the past, and generous with encouragement and a kind word. Inside that vortex was a gentle and tender soul. Fredia was a hurricane, but instead of leaving a path of death and destruction she left a wake of joy, good will and affection. Anyone lucky enough to have encountered this dynamo of a woman is better for it, and the world is surely a better place having been graced by Fredia Hurdle.

Lynn and Ashley, my heart goes out to you.

Thank goodness the aftereffects of hurricane Fredia will be with us for a long time.

With much love,
Vic Walczak.

On #DecisionDayPA: A letter from Vic Walczak

Vic Walczak

Vic Walczak

Dear ACLU Supporter,

I have been blessed to be a part of some pretty historic cases, whether it’s intelligent design creationism, Hazleton’s immigration fiasco, or, most recently, knocking out voter ID. But our marriage case on behalf of 25 Pennsylvanians holds a special place for me.

I was at the Pittsburgh celebration on the night of the decision with several of our clients and their children when the magnitude of what we had achieved began to hit home. People I didn’t know were hugging me, wetting my suit with their tears as they thanked me for transforming their lives. I don’t ever recall seeing so much unabashed joy, open affection, and excitement created by one of our victories.

All ACLU cases involve vital rights, but it hit me just how life-defining this case is for so many people. It is everyday existence. This decision affirms people for who they are and establishes gay men and lesbians as equal citizens. Those who fall in love with a person of the same sex now have the same rights.

Who would have thought that in less than a year we would make Pennsylvania number 19 for freedom-to-marry states? It’s amazing and just plain beautiful!

The ACLU of Pennsylvania could not have achieved this win, or any of our other victories, without the help of our supporters.

If you’re not a member, please consider joining the ACLU today.

Thank you for your unwavering faith in the ACLU! Let there be more love in the world. And let wedding bells ring!

Sincerely,

Witold ‘Vic’ Walczak, Esq.
Legal Director, ACLU of Pennsylvania

PS – What some of you may not know is that I’m a dancing legend. Bad dancing legend 🙂

Vic Walczak dancing

Vic dancing on stage at the #DecisionDayPA rally in Pittsburgh (credit: John Altdorfer)

Questions Surround New Program for Purging Pennsylvania’s Voter Rolls

By Witold Walczak, Legal Director, ACLU of Pennsylvania

If something appears suspicious, and you inquire and the response is, “we refuse to tell you anything,” the natural impulse is to become even more suspicious. And that’s for normal people. But it’s heightened for ACLUers, who must have additional skepticism bred in. And when the concern is purging of voter rolls or other voter-suppression measures, alarm bells blare. That’s why we sent a letter today to Secretary of State Carol Aichele asking for an explanation and governmental transparency. Here’s the background.

Late last summer, Pennsylvania signed onto a program commonly referred to as the Interstate Voter Crosscheck Program. It was begun in 2005 and is administered by the Kansas Secretary of State. Multiple states have signed on to participate. According to the agreement signed by the Commonwealth, participants agree to “share voter registration information for the purposes of cross checking and identifying duplicate registrations and instances of multiple votes by the same individuals.”

In theory, this is not a problem and could be helpful in cleaning up duplicate registrations. But unless done right, it could also be a pretext for wrongly purging voters from registration rolls. As the saying goes, the devil is in the details.

After our inquiry to the Department of State (DOS) for information about the program was refused in mid-February, a formal Right to Know Act request produced 81 pages of documents a month later. While these documents include the agreement itself and some information about program operations, the letter accompanying the documents stated that the most important information being sought, about the ‘the purging of voter records,” was being “denied.” True to their word, the 81 pages share with the ACLU did not indicate when and how Pennsylvania planned to purge voter registrations identified by the Crosscheck Program as duplicates.

Beyond the basic withholding of documents, equally troubling was what the 81 pages did show. They do more to raise than allay our concerns about Pennsylvania’s voter-purging process under the new Crosscheck Program. The documents we received acknowledge that Pennsylvania is changing its process for handling information about duplicate registrations, but those documents do not explain the changes or include a copy of the revised “Duplicate Voter Notice” form.

The documents show that Pennsylvania will be applying a relaxed standard to identify potential duplicate voter records in other states under the Interstate Crosscheck Program, requiring just a match on first name, last name and date of birth. The system does not require a match of middle initial or Social Security number, even though in many instances that information is available. Such a low standard will yield a large number of matches. Indeed, in states slightly smaller than Pennsylvania, like Michigan, Ohio and Georgia, in 2013 the Program identified about 385,000 to 610,000 voters who might have duplicate records in other states.

But the same materials, produced by the Kansas Secretary of State’s Office, candidly acknowledge that many of those potential duplicates are false positives: “Experience in the crosscheck program indicates that a significant number of apparent double votes are false positives and not double votes. Many are the result of errors voters sign the wrong line in the poll book, election clerks scan the wrong line with a barcode scanner, or there is confusion over the father/son voters (Sr. and Jr.).” The program thus flags a huge number of voters as potential duplicates, but admits a high error rate, elevating the ACLU’s concerns about how precisely Pennsylvania will handle voter-registration cancellations.

The danger posed by voter purges, especially purges carried out right before an election, is that duly registered voters are surprised on Election Day that they are no longer listed as a registered voter at their polling place, causing them to have to vote by provisional ballot. In Pennsylvania, less than 50% of provisional ballots are counted, meaning it’s a poor substitute for a regular ballot and is more likely than not to lead to disenfranchisement. Now-notorious voter purges in Florida in 2000 may well have tilted the election. Under the guise of purging felons, non-citizens or outdated and allegedly deficient registrations, states like Florida, Ohio and others have been able to play games with people’s voting rights. The brunt of these unfair purges has fallen on poor and minority voters.

The National Voter Registration Act (NVRA) is a federal statute passed in the ‘90s to, among other things, regulate the removal of voters from the rolls and prevent improper purges. The Act provides for specific safeguards, including for voters being removed from the rolls for possibly having moved, which is what the Crosscheck Program supposedly flags.

Under the NVRA, written notice must be given to people whose registrations are being considered for cancelation, and absent confirmation of the move by the voter him or herself, there is a mandatory waiting period of two federal elections. And no purges under any system of removing names can occur within 90 days of a federal election.

Returning to the Pennsylvania situation, contained in the 81 pages of documents is advice about how and when voter records can be purged, and that advice violates the NVRA. The advice comes from the Kansas Secretary of State, Kris Kobach.

I know Kobach from another life: he was opposing counsel in our 2007 trial over Hazleton’s anti-immigrant ordinances, a case we finally won last month when the Supreme Court refused to review our Third Circuit victory. We saw that Kobach played fast and loose with immigration laws in misguided zeal to drive out undocumented immigrants in a way that threatened the well-being of lawful immigrants in Hazleton, Arizona and elsewhere.

Since Kobach’s ascension to the top election post in Kansas, voting-rights advocates have been concerned that, like with immigration, he may misuse election laws in dangerous ways. Now the concern is that he is misusing the Crosscheck Program, which he inherited from his predecessor, ostensibly to address alleged fraud but doing so in a way that could lead to purges of lawful voters.

The flaw is the same in both Kobach’s immigration and election work: the ends of addressing one problem, be it undocumented immigrants living in our midst or voters registered in two states, justifies a poorly designed cure that threatens the rights of innocent people, either lawfully present immigrants or, in this case, duly registered voters. And important legal protections to prevent errors, i.e., due process, are minimized or ignored completely.

The 81-page document production contains the most recent directions from the Kansas Secretary of State to Crosscheck Program participants, titled “2014 Participation Guide” and dated December 2013. It advises that states may “cancel” a duplicate record “if the following conditions are met”:

“a. the records match on first name, last name, and date of birth, and
b. One of both of the following data elements match:
-last four digits of Social Security number and
-signature and
c. Data in the middle name field either matches or is not a mismatch.”

or

“The jurisdiction poseessing the record with the older registration date may mail a confirmation notice, pursuant to the National Voter Registration Act of 1993, Sec. 8(d)(2), if the three fields match as specified in item 1.a. above. These registrants’ names are added to the state’s Inactive list pending cancellation after two federal general elections, assuming there has been not voting activity during that period.”

Unless my reading skills fail me, this tells states receiving Interstate Crosscheck data that there is an alternative to following the NVRA. Indeed, the second option outlined is the method required by the NVRA, which suggests states can avoid this legal obligation by using the first option. Nothing in federal law provides for such an alternative.

Another paragraph in the same 2014 instructions contains more legally suspect advice. Under a heading entitled, Cancellations by Confirmation Between Jurisdictions, it reads as follows:

“Pursuant to NVRA Sec. 8(d)(1)(A), the jurisdiction possessing the record with the older registration data may cancel the record (and send a cancellation notice if state law or regulations require it), if another jurisdiction confirms that the registrant has registered to vote in the new jurisdiction and has indicated on the voter registration application form an address in the former jurisdiction.”

But this would violate the NVRA because it fails to comply with the requirement that states have to notify voters in writing. Unless they receive written confirmation of the address change from the voter they have to wait two federal elections where the voter does not cast a ballot before canceling their registration.

It’s possible that there is an explanation for all this, and that the Pennsylvania Department of State intends to and will comply with federal law regarding registration cancellations, but what they’ve shared thus far certainly isn’t reassuring.

On March 12, I asked DOS officials for a meeting to discuss how Pennsylvania plans to purge voter registrations under the new Crosscheck program. Other than a nice email from the recently departed DOS chief counsel telling me he had moved on, they haven’t favored me with the courtesy of a reply.

So today we have sent a letter to Secretary Aichele again asking for a meeting to discuss when and how Pennsylvania plans to purge voter records under the Crosscheck Program. Please join us in asking Secretary of State Aichele and Governor Corbett to explain exactly how the commonwealth plans to implement the Crosscheck system, specifically in regards to purging voters from the registration rolls.