ACLU-NJ News - Free Speech

ACLU-NJ Ensures Bird Store Protest Can Take Flight

Burlington, NJ - The American Civil Liberties Union of New Jersey yesterday beat back a lawsuit from a Burlington bird store that sued three animal rights organizations in an effort to block them from gathering this Saturday, April 12, in front of the store. Bird Paradise also sued the City of Burlington, which had approved the gathering.

"We were surprised at the lengths Bird Paradise went to try to silence us," said Rachel Ogden, the founder of Reach Out for Animal Rights, one of the organizations protesting the store. "Fortunately, it won't be a silent spring, but springtime for the First Amendment."

Yesterday Bird Paradise agreed to have the case withdrawn or dismissed, and today the New Jersey Department of Transportation approved a permit for the demonstration. The gathering, to protest the practice of selling and keeping captive birds as pets, will take place as planned Saturday, from 2:30 to 4:30 p.m., in front of Bird Paradise on Route 130.

"The City makes the determination of whether to allow a demonstration, consistent with free speech policies," said ACLU-NJ Legal Director Ed Barocas, who represented Reach Out for Animal Rights, Mobilization for Animals and the New York Bird Club in the suit. "A company can't independently sue to squelch public speech simply because it doesn't like what people are saying."

The case was captioned Animals Etc., Inc. d/b/a Bird Paradise v. New York Bird Club, et al. The organizations will gather Saturday from 2:30 to 4:30 p.m. in front of the Bird Paradise store on 551 Route 130 South.

Blog: Free Speech & Loathing in New Jersey

When it comes to giving people the third degree over their First Amendment rights, Newark is second to none.

Take our ongoing soap opera over speech permits (cue soundtrack) . . .

The long and winding road

In late 2004, the ACLU-NJ filed a lawsuit against the city for violating the free speech rights of the People's Organization for Progress (POP) and New Jersey Peace Action.

We identified two constitutional problems. First, the City required anyone who wanted to distribute leaflets to get special dispensation from the police chief, who was empowered to determine whether the applicant was "of good moral character." (Ahem.)

Second, the City required anyone who wanted to hold a march to secure a $1 million insurance policy and indemnify the city from harm or damage. (You know how rowdy peace protesters can get.)

Insurance requirements like this, though patently unconstitutional, are a common government tactic for squelching unwelcome speech. How many grassroots groups can obtain $1 million worth of insurance coverage in order to march down Broad Street? Who knows how to get insurance? Who can afford it?

Naturally, we won in court and the city agreed to stop both practices.

But when ACLU-NJ Legal Director Ed Barocas and I put the agreement to the test - well, don't let me spoil the story.

Still haven't found what we're looking for

In the summer of 2006, Ed and I went to City Hall in search of a permit application. Rumor had it that the insurance requirement was back. After getting bounced from office to office, we were finally given . . .

. . . the old, inaccurate form, with the old, inaccurate instructions inaccurately telling us we needed insurance to express ourselves in the streets.

We figured this would be an easy fix. After all, the Mayor's previous campaign for election endured numerous outrageous free speech violations under the James administration, highlighted in the Academy Award-nominated documentary, Streetfight.

You can't always get what you want

As it turned out, we didn't get the snappy resolution we expected.

Ed spent weeks going back and forth with City of Newark Corporation Counsel Aney Chandy to get the permit forms changed.

To be clear, the language on these forms has real world impact. For example, we were still waiting to hear back from Newark in early September 2006, when we found out that City Hall had refused to process an application to hold a Labor Day event without proof of insurance.

The event sponsors, American Friends Service Committee and the New Jersey Immigration Policy Network, had to abandon plans to march down Broad Street. And this is just one example that we happened to hear about - who knows how many other groups changed or canceled plans because they couldn't get the insurance the city unlawfully required.

Just as we prepared to go back to court, Newark changed the form - finally. We breathed a sigh of relief knowing that the forms wouldn't scare off other citizens wanting to hold rallies or marches.

Same as it ever was

For me, one of the most frustrating parts of my ACLU job is dealing with entrenched bureaucracies. But this is far outweighed by the most gratifying part: helping secure people's fundamental democratic rights. If that ever happens in this case, I'm having a party.

Fast forward to last month's Martin Luther King Jr. Day, when POP had planned a march in Newark. Lo and behold, City Hall gives POP a permit application form, which stated...

. . . that they needed to buy $1 million worth of insurance to hold their march.

As ACLU founder Roger Baldwin said, "No fight for liberty ever stays won."

As Ed said, "You have got to be kidding!"

The waiting is the hardest part

We contacted city again and, at their request, provided the exact language needed on the form: "Insurance is not required for free speech activities such as marches, vigils and protests. If you're engaging in free speech activities but do not have insurance, it will not affect your ability to obtain a permit."

We waited, and nudged, and waited and nudged.

Aney Chandy left her job as Corporation Counsel, with the matter unresolved.

Just like starting over

We sent an intern to City Hall to see if perhaps Aney had the form changed on her way out - a little constitutional "parting gift," we hoped.

Nope. Same old form. Same inaccurate information.

We won't get fooled again

We checked one more time late last week and found the form changed: Instead of saying that insurance is required, it says insurance may be required. Only it doesn't say in what circumstances it may be required, or that it is not required for First Amendment activities.

So someone finally changed the form, but it's still wrong and still likely to deter people from holding an event protected by the First Amendment.

After trying for more than three years for Newark to simply change two lines on a permit form, today we're heading back to court.

We don't want to spend the ACLU or Newark's resources on this. Feel my pain, as a Newark homeowner I'm paying on both ends of this needless chase. Clearly, both parties have bigger fish to fry.

But as long as this unconstitutional barrier to free speech exists, it's the ACLU's job to persist. We've exhausted all other channels - and been exhausted by them - so back to court is our last resort.

Ed and I can't fathom why Newark hasn't simply changed the form and brought personnel up to speed to avoid this litigation. It's disheartening to even have to ponder this.

Whatever the case, the whole thing reminds me of another civil liberties saying: "Eternal vigilance is the price of freedom."

So be it. We're ever vigilant.

-By Deborah Jacobs, ACLU-NJ Executive Director

POP v. City of Newark

On February 21, 2008, the ACLU-NJ filed to enforce a Consent Order that the City of Newark signed in 2004, but which it has not followed. In 2004, the ACLU-NJ represented the People's Organization for Progress (POP), NJ Peace Action, and itself, challenging Newark's requirement that individuals or organizations seeking to hold free speech marches pay for a $1,000,000 insurance policy. In October 2004, the Superior Court of New Jersey, Essex County, ruled that, since the Newark council never authorized an insurance requirement for permits, Newark officials could not impose one. In December 2004, Newark signed a consent order stating it would not enforce any insurance requirements against plaintiffs.

Since then, Newark has continued to include an insurance requirement on its permit application and has failed to put any statement on the form clarifying that the insurance requirement doesn't apply to free speech matters. After over three years of trying to persuade Newark to change its forms, and after having to intercede on numerous occasions to obtain approval for applicants who did not have insurance (and whose permit applications were delayed or denied because of lack of insurance), the ACLU-NJ, on February 21, 2008, filed to enforce plaintiffs' rights under the Consent Order.

ACLU Sues Newark For Free Speech Violations

Photo by Jon Levine

Newark - Today the American Civil Liberties Union of New Jersey filed suit against the City of Newark for ongoing free speech violations relating to a requirement that people must buy liability insurance in order to hold free speech protests in Newark.

"We just want people to have the right to protest in Newark without facing unconstitutional barriers," says Bennet Zurofsky of Reitman Parsonnet, serving as cooperating attorney for the ACLU-NJ. "We're tired of going round and round on this; the city needs to take free speech rights seriously, fix their forms and train their staff."

The ACLU-NJ first brought the issue to court in 2004 when the City required the Peoples Organization for Progress (POP) and New Jersey Peace Action to obtain $1,000,000 in liability insurance in order to receive a permit to hold a demonstration. The Superior Court of New Jersey, Essex County, ruled in the ACLU-NJ's favor, with Newark signing a December 2004 Consent Order stating it would not enforce any insurance requirements.

Since then, Newark has continued to include an insurance requirement on its permit application form and failed to train personnel that insurance requirements don't apply to permits for free speech activities.

After three years of trying to persuade Newark to change its forms and train its personnel, and after having to intercede on numerous occasions to obtain approval for applicants who did not have insurance (and whose permit applications were delayed or denied because of lack of insurance), the ACLU-NJ has no option but to file in court to enforce the Consent Order.

"It's frustrating to see free speech rights disregarded by the city," says ACLU-NJ Legal Director Ed Barocas. "Instead of wasting time and money to keep an unconstitutional policy in place Newark should encourage free speech activities in the city."

Insurance requirements are a standard, albeit patently unconstitutional, government tactic for squelching unwelcome speech. Newark is one of many cities forced to abandon the requirement.

The case is captioned POP v. City of Newark.

This is the third First Amendment action the ACLU-NJ has taken against the City in the past month. On January 23, 2008 the ACLU-NJ filed suit against Newark for violating the free speech and press rights of Brazilian Voice editor Roberto Lima (Lima v. Newark Police Department). On January 30, 2008 the ACLU-NJ moved to join a federal lawsuit filed against the City of Newark for disciplining a police officer who anonymously posted a message on a website that was critical of the Newark Police Department (Wohltman v. The City of Newark).

ACLU-NJ Seeks to Join Free Speech Lawsuit Against Newark

NEWARK, NJ -- The American Civil Liberties Union of New Jersey (ACLU-NJ) today moved to join a federal lawsuit filed against the City of Newark for disciplining a police officer who anonymously posted a message on a website that was critical of the Newark Police Department. The lawsuit also challenges the action of Newark police in improperly obtaining a subpoena to require an Internet Service Provider to turn over the identity of the then-anonymous web poster.

"Public employees have the right to speak openly about matters of public concern, and the right to do so anonymously on the web, if they choose" said ACLU-NJ Legal Director Ed Barocas. "In this case, the Newark Police Department violated both of those rights."

In February of 2006, the plaintiff in the case, Officer Louis Wohltman, anonymously posted messages about the integrity and competence of the Newark police department on http://www.newarkspeaks.com a website on which people engage in dialogue about local issues.

Due to the fact that Newark Police Department supervisors apparently disliked the content of the anonymous web messages they went to great -- and ultimately illegal -- lengths to uncover the identity of the web poster. Despite the fact that what Wohltman wrote did not amount to an illegal threat, the police department improperly used the criminal grand jury subpoena process to obtain Wohltman's identity. Then, the department suspended Wohltman for nine months without pay for making the critical statements.

This is the second time in as many weeks that the ACLU-NJ has become involved in a case in which the Newark Police Department allegedly tried to suppress citizens' First Amendment rights. Last week, the ACLU-NJ, along with the Seton Hall Center for Social Justice, filed a lawsuit (Lima v. Newark Police Department) against the Newark Police Department on behalf of newspaper editor Roberto Lima, whom police arrested and held in custody until he relinquished photos his staff took of a dead body found in a Newark alleyway.

The case involving Officer Louis Wohltman is captioned Wohltman v. The City of Newark, et al., and was filed in the United States District Court in Newark. The ACLU-NJ's filing today is to request permission to participate in the case as amicus curiae ("friend-of-the-court") and to provide the court with the legal context in which to analyze the facts of the case.

Louis Wohltman is directly represented by Frank Corrado of Barry, Corrado, Grassi & Gibson, as well as by Rubin Sinins of Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins.

Lima v. Newark Police Department

On January 23, 2008, the American Civil Liberties Union of New Jersey and the Seton Hall Center for Social Justice filed a lawsuit against the Newark Police Department on behalf of newspaper editor Roberto Lima, whom police arrested and held in custody until he relinquished photos his staff took of a dead body found in a Newark alleyway. Depite offering Newark police the original photographs his photographer had taken of the body, Newark police handcuffed Mr. Lima to a bench until he agreed to give them all copies and originals.

On September 6, 2007, a Brazilian Voice photographer discovered a dead body in the Ironbound section of Newark. Lima and his photographer reported the body to the Newark Police and directed officers to the scene. In the course of conversations with the police, Lima offered to turn over pictures his photographer took of the site. However, Deputy Chief Samuel DeMaio arrived at the scene and ordered another officer to seize Lima's camera. He also ordered Lima to turn over all copies and the originals of his pictures. Deputy Chief DeMaio told Lima, "You're not printing any of this. Lima then voluntarily went to the police station to fill out a report. After finishing the report, Lima asked for his camera back. In response, Lima was told that he would be immediately arrested unless he turned over every copy and original of the pictures. Lima refused and was arrested. Lima remained handcuffed to a bench until he finally agreed to turn over all copies of the photos. After removing Lima's handcuffs, a detective (Lydell James) followed Lima back to his office and seized additional pictures.

In addition to constitutional claims, the lawsuit invokes a New Jersey law that specifically ensures the right of journalists to be free from improper searches and seizures of their documentary materials by local law enforcement.

ACLU-NJ Challenges Election Day Free Speech Ban

NEWARK, N.J. -- The American Civil Liberties Union of New Jersey today Filed a Motion (1.2mb PDF) seeking to stop the State Attorney General from enforcing her prohibition on free speech activities within 100 feet of a polling place, including handing out voter rights cards.

"Free speech and voting rights are core American values," said ACLU-NJ Executive Director Deborah Jacobs. "The Attorney General's decision to restrict such democratic activities on Election Day goes against everything this country stands for and aspires to."

In a July 18, 2007 letter, Attorney General Anne Milgram banned all contact with voters entering polling sites and all contact, except "exit polling," with people leaving polling sites. The Attorney General's Directive (282k PDF) also requires media representatives or representatives of a public interest groups to obtain advance approval from their county Board of Elections to conduct exit polling, and also provide the Board with two weeks notice of the exact locations where exit polling will take place, and the names of each person conducting the polls.

"The Attorney General's Directive (282k PDF) goes far beyond any restriction contemplated by our state legislature, and violates citizens' freedom of speech," said Frank Corrado of Barry, Corrado, Grassi & Gibson in Wildwood, NJ, who represents the ACLU-NJ in the case. "Our state laws restrict 'electioneering' for a candidate or public question, and prohibit actions that would obstruct or interfere with voters entering or exiting polling sites, but handing out voter rights cards does not fall into any of those categories. The Attorney General has clearly exceeded her authority."

In previous elections, the ACLU-NJ, in conjunction with other public interest organizations, organized volunteers to hand out voter rights cards on election days to inform individuals of their rights at the polls. The voter rights cards provide general information and contain no mention of any individual running for office or any public question to be voted upon. Since 2005, ACLU-NJ volunteers who sought to hand out voter rights cards within 100 feet of polling sites were threatened with arrest and were forced to move over 100 feet away, where they had little access to voters. At the times these threats were made, there was no official Attorney General rule that banned the volunteers' activity.

The ACLU-NJ seeks to monitor the polls and hand out voter rights cards to voters during the February 5, 2008, primary election.

The ACLU-NJ initially challenged the Attorney General's decision by filing an appeal in court on October 1, 2007. The lawsuit claims that the Attorney General has exceeded her authority by banning activity that the legislature allows; that her directive conflicts with state laws; and that the ban on handing out voter rights cards and engaging in other non-electioneering speech activities violates the free speech protections of the New Jersey Constitution. Today's action seeks to suspend The Attorney General's Directive (282k PDF) so that free speech activities may take place on primary day.

The case is captioned In re: Attorney General Directive on Exit Polling Issued July 18, 2007.

ACLU-NJ Challenges Arbitrary Police Fees for March

Local officials imposed an unconstitutional police fee of more than $1,500
on CATA, the organizers of this May 1, 2007 march in Bridgeton, N.J.
Photo by David Bacon

En Español

NEWARK, N.J. -- The American Civil Liberties Union of New Jersey and the Farmworkers' Support Committee today filed a lawsuit in federal district court against the City of Bridgeton for charging a fee of more than $1,500 for an immigrant rights March held on May 1.

"This fee amounts to a user's tax on free speech and that is unconstitutional," said Frank Corrado, who on behalf of the ACLU-NJ is the volunteer attorney for the Farmworkers' Support Committee, also known as El Comité de Apoyo a los Trabajadores Agricolas or CATA. "Bridgeton is responsible for providing police and other government services for all forms of use of its public streets, including marches or parades. Imposition of these fees will mean that only the wealthy will be afforded the right to speak out on issues, and our Constitution thankfully forbids that."

This year, as last year, CATA held an immigrant rights March on May 1 in Bridgeton to express support for immigration reform.

In 2006, CATA's march was not charged any police or cleanup fees. As it did last year, CATA this year applied for a permit and worked with the police and the city to determine the route. Both years, the march occurred without incident.

However, this year Bridgeton demanded a $1,800 police fee and a $200 cleanup deposit. After negotiations between CATA and Bridgeton, the city agreed to drop its requirement that fees be paid prior to the march but added that it would bill CATA after the march.

Several weeks after the May 1 march, CATA received a letter from the city requesting payment for "additional" police expenses for the event, amounting to more than $1,500. CATA requested that the fees be withdrawn, but in a June 12, 2007 letter responding to the group, the city said that it would pursue its demand for the payment and, moreover, would continue to seek such reimbursement in the future.

"I don't see the logic the city of Bridgeton is using in prohibiting our rights to free expression that we all have living in this great country," said Mariza Ibarra, CATA board member and Bridgeton resident. "We are a vulnerable part of the population and we are only struggling to obtain dignity in this community and country."

In its legal complaint, the ACLU-NJ said Bridgeton officials exercised "unfettered, arbitrary discretion" in billing CATA for police expenses, since the city does not have an ordinance that authorizes it to impose fees for marches or parades.

CATA originated in 1975 as the ACLU-NJ Farmworkers' Project. CATA later reorganized independently as a migrant worker-organized membership organization that advocates for the human rights of migrant and immigrant workers. CATA has extensive membership throughout South Jersey and a committee of active leaders in Bridgeton that has organized both May 1 marches, as well as other activities in the community.

The lawsuit, CATA v. Bridgeton, was filed in U.S. District Court in Camden.

More information on CATA is available at http://www.cata-farmworkers.org

ACLU-NJ Praises Court Decision Protecting Reproductive Freedom, Free Speech

TRENTON, NJ - The American Civil Liberties Union today applauded a decision by the New Jersey Supreme Court dismissing a medical malpractice lawsuit that could have improperly forced physicians to give a non-medical, value-laden speech to their patients before performing an abortion. The ACLU called the decision a victory for reproductive rights and free speech in New Jersey.

"We are pleased that the court dismissed this frivolous lawsuit, which had no basis in law or medicine," said Brigitte Amiri, a staff attorney with the ACLU Reproductive Freedom Project. "This case was nothing more than an underhanded attempt to turn doctors into ideological mouthpieces and subject women to non-medical moral judgments."

In 1998, Rosa Acuna brought a medical malpractice lawsuit against a doctor in New Jersey, claiming that he had failed to properly inform her at the time of her abortion that the embryo was a "complete, separate, unique and irreplaceable human being" with whom she had "an existing relationship," and his failure to do so caused her emotional distress. According to court papers, Acuna, who had two children prior to her abortion, stated that at the time of her abortion she understood that she was pregnant and signed a form consenting to the procedure.

"Today's victory sends a message that New Jersey will not tolerate backdoor efforts to curtail reproductive rights or free speech," said Ed Barocas, Legal Director of the ACLU of New Jersey. "We will not allow the anti-choice lobby to force its moral or theological beliefs upon others and to intimidate doctors or women with lawsuits that are without merit."

In its unanimous decision, the court noted, "we know of no common law duty requiring a physician to instruct the woman that the embryo is an 'existing human being,' and suggesting that an abortion is tantamount to murder. There is not even remotely a consensus among New Jersey's medical community or citizenry that plaintiff's assertions are medical facts, as opposed to firmly held, moral philosophical, and religious beliefs."

Acuna's lawsuit is one of three instances where anti-choice foes have insisted that doctors must read a similar script to their patients prior to performing an abortion. A class-action medical malpractice lawsuit with similar claims was recently brought in Illinois, and in South Dakota, reproductive rights advocates are currently challenging a law that may require doctors to read language identical to that found in this case.

Today's decision by the New Jersey Supreme Court only reaches the issue of whether Acuna's malpractice case should go to a jury trial. Later this month, the U.S. Supreme Court will decide if it will consider a separate issue in the case regarding the legitimacy of a federal equal protection challenge involving New Jersey's wrongful death statute.

Today's case is Acuna v. Turkish (Docket No. 59, 525). Lawyers on the ACLU's friend-of-the-court brief include Amiri and Talcott Camp of the ACLU Reproductive Freedom Project and Barocas of the ACLU of New Jersey.

ACLU-NJ Legal Director Ed Barocas on Twin Rivers Ruling

By Ed Barocas ACLU-NJ Legal Director

I bought a condo in Montclair five years ago and in no time my eyes were opened to the kind of power-plays, in-fighting, and venom that can spew over homeowners' association politics.

My impassioned neighbors on various sides of the issues tried to engage me, knowing that I was the legal director of the ACLU-NJ, and pleading for help. "I gave at the office" was my standard reply, and I meant it. The ACLU-NJ, along with the Rutgers Constitutional Litigation Clinic (run by the esteemed Professor Frank Askin), already represented homeowners in a legal battle being watched around the country.

The case, Committee for a Better Twin Rivers v. Twin Rivers Homeowners' Association, was before the New Jersey Supreme Court, and its decision would ultimately determine the rights of more than one million New Jerseyans who, like me, live under the rule of homeowners' associations. Twin Rivers involved a host of democratic rights -- everything from whether homeowners have appeal rights when fined for offenses such as choosing a different door paint color to whether homeowners are allowed to post political signs on their property.

Twin Rivers closely relates to an issue we litigated with the Constitutional Litigation Clinic thirteen years ago, concerning free speech rights in shopping malls. In that case, the winning argument was that shopping malls had essentially replaced the town square as a place for community members to gather, and therefore free speech activities must be protected. In Twin Rivers, we similarly argued that for an eighth of the state's population, homeowner's associations have replaced government in establishing community policies and standards (some of these developments are so large that they have their own schools).

On Thursday, July 26, 2007, the long-awaited Twin Rivers decision came down with a unanimous decision against our clients, holding that the Twin Rivers Homeowners Association's restrictions were reasonable and that, unlike shopping malls, homeowners associations do not invite in the public-at-large. Thus, the Court wrote that, while shopping malls act as public squares, homeowner associations do not act as municipalities. It viewed the situation ultimately as a private contractual agreement whereby certain rights can be waived.

Yet, upon reading the decision, our initial disappointment quickly morphed into encouragement. While the ruling was portrayed in the press as a win for the homeowners associations, in actuality, it is a victory for all homeowners who treasure free speech and expression.

We all thought that the questions "is this like the shopping malls" and "is the association a quasi-municipality" were the crux of the case, but we were wrong. Here's why . . .

First, keep in mind that the Court applied the NJ constitutional analysis as it did in the other "quasi-public" contexts like the historic shopping mall cases. The Court ultimately held in Twin Rivers that unreasonable restrictions by homeowners associations on free speech on one's private property would violate the state's heightened constitutional free speech protection.

Because the NJ Constitution (unlike the U.S. Constitution) has an affirmative free speech right, the homeowners associations cannot unreasonably restrict that right when conducted on a person's own private property. The Court held that the particular restriction at issue here (one sign permitted per every window within a residence) was not unreasonable, but the Court wrote that: "At a minimum, any restrictions on the exercise of those rights must be reasonable as to time, place, and manner. Our holding does not suggest...that residents of a homeowner association may never successfully seek constitutional redress against a governing association that unreasonably infringes their free speech rights."

So, while the Court sided with the homeowners association based on the rights it granted to homeowners to display signs, the Court established that association restrictions will be subject to the constitutional standard that our Twin Rivers clients sought . . . that they not be denied a reasonable opportunity to express themselves. We now know that associations do not have carte blanch -- if they pass unreasonable restrictions, those restrictions will be shot down.

Yes, homeowners associations can limit certain free speech activities, especially when dealing with common areas (we lost on the issue of equal access to the association newsletter and other aspects related to communal areas), but the right of free speech in our homes can't simply be contracted away.

Of course, once a court sets down a standard, there will always be groups down the road (either homeowner board members or dissident residents) who will test the waters to find out just what is "reasonable" and what is an "unreasonable" restriction on our right to free speech . . . Having seen the way things happen in a homeowners association once one side or another digs their heels in, I am sure there will be no shortage of residents - in my own condo and elsewhere - who will be begging for me and the ACLU-NJ to get involved in Round 2.

ACLU-NJ News - Free Speech

ACLU-NJ Ensures Bird Store Protest Can Take Flight

Blog: Free Speech & Loathing in New Jersey

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ACLU-NJ Praises Court Decision Protecting Reproductive Freedom, Free Speech

ACLU-NJ Legal Director Ed Barocas on Twin Rivers Ruling