(If you aren’t familiar with the background of this story, here’s some background.)

First, of course, I wanted to be on the “inside” of the story and really see the play-by-play of what was happening.  I tried to go to the publicly announced planning center, a chat room on irc.anonops.net.  Unfortunately, this domain name had also been the target of the volley of attacks that was transpiring.  However, a nice gentlemen in the #wikileaks channel of irc.freenode.net directed me to the server by IP address: 88.198.224.117.  Do have a visit with your IRC client if you are interested.

Upon arrival, I was prompted to check out #operationpayback, the central meeting spot for these hacktivists.  Once in the channel, I was astounded at the pace of the conversation – about 5-7 comments EVERY SECOND.

Most were updates on the state of the LOIC (Low-Orbit Ion Cannon), the tool of choice for taking mastercard.com down from the Internet (LOIC is, or at least was, a fairly mainstream tool for testing server defenses).  The tone was absolutely jovial – mastercard.com was down, and the mainstream media regarded the events of this chatroom as headline-worthy.

Yet, I did not get a sense of constructive, radical civic duty.  In fact it seemed to me that the average age (judging by comment maturity and grammer) was probably about 14.

I do understand how a person of a different bent might derive a bit of glee from the spectacle of the denial of service attack being coordinated.  I, however, noticed a very different sentiment unfold in my gut:

Mere destruction of existing power structures, without contemporaneous (or, for that matter, preceding) construction of alternatives is unlikely to ever result in sustainable positive change.

May I suggest to all the people who are distressed about Amazon, Visa, Mastercard, and whomever else abandoning Wikileaks that their mission needs to be to build peaceful, sustainable alternatives to Amazon, Visa, and Mastercard?

May I further suggest that this is the only truly radical use of information technology?  Destruction has been possible (and in fact normative) since the beginning of time.  Only now, however, is parallel construction possible.

Stop the temper tantrum.  Stop the blame game.  Instead, just work toward an information age where the the quasi-censorship that has characterized the industrial age is mathematically precluded at the infrastructural level.  I suspect that thanks for this work will come not only from Wikileaks (and all those who are spiritually motivated by its basic premises) but in fact also from governments and corporations too.  Everybody has an interest in the tech infrastructure working more efficiently and smoothly, and this will naturally translate to lower costs and increased availability in disadvantaged communities.

Make no mistake: I’m not happy about the treatment wikileaks is getting. But is this really the best that we can come up with as a response? Have we really run out of civil, ethical, and constructive ways to deal with these kinds of issues? If so, doesn’t that make us as bad as “them?”

I urge the young, tech-savvy people who are concerned about technological freedom: shut down LOIC, start up Eclipse and Miro, and get to work – there’s plenty to be done.

They drove around with a car, taking photos of the public surroundings of their car (that’s how they make StreetView).  While so doing, they picked up and recorded whatever wireless signals were coming in to their car.

Now people are whining that they are being spied upon.

Does anybody really think that preventing this kind of conduct has anything to do with making our communities secure against unwanted surveillance?  Is this line of defense the best we’ve got?

If you stand at your doorway, yelling at the top of your lungs about many intimate, private details of your life, is it fair to accuse a passerby of illegal (or unethical) surveillance because they happen to be recording their surroundings with an audio recorder?

Do you think that members of congress will rally to your defense, accusing those same pedestrians of spying on you?

There are plenty of very secure options for wireless communication.  If you aren’t using any of them, that’s your prerogative.  If you abstain from secure practices while at the same time communicating about sensitive issues which you bizarrely regard as private, that’s your problem.

On the bigger issue of Google being a scary monster of information collection… Sure, I see your point.  While on one hand, the information they collect is, in every practice I know of, voluntary (search phrases, email contents on Gmail, advertising clicks, cookies, the Google Toolbar, and many other methods), it’s not any less scary that they know more than anybody else about the modern polity.

I’m not usually a defender of google or any other giant corporation – I’ve expressed my fair share of google skepticism.  In this case, I think they’ve actually done wrong by repeatedly apologizing, but I guess that’s a PR move.

Nevertheless, their amazing (and thankless!) gift two weeks ago of releasing the VP8 codec to the public domain under an open source license was perhaps the single most significant act of bolstering independent radical journalism in the (still short) history of website-based video delivery.  Still not as profound as the movement that Miro represents, I’ll grant, but big (and a LOT more expensive).

To my mind, Google gave us as $124.6 million dollar gift, and I think we have a responsibility to accept it in full if we want to take advantage of it. That means in turn taking full responsibility for our network presence.  If your upload stream includes poignant, radical, inspirational content encoded in a free codec for the world to cherish, good.  If your upload stream (and wireless connection) includes unencrypted content that you irrationally regard as private, bad.

Several of “the usual suspects,” including myself, spoke. There’s no doubt, though, that Eric Sterling stole the show. I have seen him speak 10+ times, and he is one of the best and most engaging public speakers I have ever been exposed to. Fortunately my camera was rolling:

That said, I understood how and why many of my intelligent friends were inspired by this man’s powerful words.

Finally, now, a year after the election, people are really realizing that Obama is, at least in the worst ways, as bad or worse than Dubya Bush was.

But why? Obama’s support for warrantless wiretapping, torture, wars of aggression, bank bailouts, and all the rest of this dreadful administration’s crimes are scarcely printed in the New York Times or the Washington Post. When a tiny flashlight is shone on one corner or another of these facts, the context is always “The Obama Administration, continuing the Bush Administration’s policy of….” as if their hands are tied or as if they are somehow less culpable for the murder and torture that they commit each day.

One source, however, has consistently, without fail, continued to break the news and place it in a wide, intelligent context each and every time Obama tightens the vice-grip of totalitarianism that people more readily associated with Dick Cheney. That source is Salon.com and particularly Glenn Greenwald’s column on Salon.

Today, Greenwald writes an awesome expose on Obama’s use of the “State Secrets” privilege to cover up the shadowy wings of the White House, one of the many skills he has learned and improved upon from his predecessor.

Now, without any legislative backing or public hearings, the New York State Health Commissioner has made an “emergency executive order” demanding that Jessica, her mother, and every other medical service professional to be vaccinated with both the seasonal and H1N1 flu vaccines.  If they decline to allow this, they’ll lose their jobs.

Remember, these are not government employees.  They are private citizens who have worked hard to build a career around helping people be healthy.  They know better than anyone the risks of being, or declining to be, injected with swine flu vaccine.

A recent small protest on the steps of the New York State Capitol in Albany got a bit of news attention, with local TV coverage,

Later, a lawsuit filed got more coverage, and the decision of a New York State judge got even more coverage when he issued a restraining order against the State, preventing it from vaccinating people until a hearing is held.  The hearing is scheduled to begin October 30.

Many health care professionals have said they’ll be fired rather than allow themselves to be injected with the vaccine.  As with all flu vaccines, it’s quite risky.  In addition to the typical risks, though, the plaintiffs say that this vaccine was rushed to market hastily and has already caused more sickness than usual.

Does anybody have the relevant documents?  I’m looking for, but cannot find:

• The text of the mandate
• The brief filed by the plaintiffs in the lawsuit, and the response, if any, from the state
• The restraining order
• Any kind of press release from the State defending the mandate

I have started a facebook group.  Please invite!

The underlying message here is simple:  You must expose yourself to surveillance.  You may not take any steps to defend yourself against state or corporate incursion into your privacy.

This reminds me of the order in Seattle back in 1999 that made gas masks illegal.  The thought process seems the same:  Your communication data and your muccous membranes must be exposed to the state so that they can be utilized to control you.

Dear Republican Haters,

To quote your own diatribe, “Fuck you. No, I’m not joking. I’m sick of this bullshit.”

I’m sick of the way you have perpetuated the tired, childish, brain-dead notion that there are two and only two polar opposite ideologies in the politics of the USA and that every person must determine their position along the line that connects them.

I’m sick of the way you have pigeon-holed every person who is the least bit inspired by the Republican ideals of limited and enumerated government enshrined in our founding documents into a behemoth straw-man.  You pretend that every Republican favors war, torture, greed, prisons, homophobia, and environmental destruction.  This is the only way that you feel comfortable responding to our thoughts, because it allows you to feel self-righteous about your various causes.

I’m sick of the pretense that the worst parts of the United States Government, particularly 1) the propensity for worldwide military conquest, 2) the disastrous “war on drugs,” and 3) the regulatory structures that have enabled mega-corporate dominance over nearly every facet of human life, are the fault of Republicans.  Democrats, and the democrat philosophical tradition, are at least as much to blame for these evils, and it’s going to take a trans-spectrum collaborative effort to fix them.

I’m sick of the blind, zealotic fervor with which you embrace every policy that comes out of the mouth of the god-king Obama.  Like everybody else, he has some good ideas and some bad ideas.  I think it’s notable that most of his good ideas became taboo once he became President, while his bad ideas have been given front-burner status.

I’m sick of the outrageously and transparently partisan selectivity with which you pass moral judgment on the legitimate role of government.  When George W. Bush turned out to be a jackass and mass murderer, we turned on him (actually, many of us never supported him in the first place!) and joined your chorus of contempt for the bloating of the size of the federal government under his regime.  Now, when we point to the same exact tendencies under Obama, suddenly big government is OK with you.

I’m sick of the ludicrous yet omni-present claim that government is the only solution for providing quality health care for all.  I’m also sick of your comparisons to the health care systems of nations that are 1% the size of ours.  I’m sorry, but no government, much less one infested with decades-worth of pure evil from both parties, can provide health care for every person from the Atlantic to the Pacific and make it work well.

I’m sick of the myth that corporatism is our burden to bear.  Whose side are the big corporations on now?  The biggest, most fucking wretched pharma companies are falling over themselves to support your health care takeover.

I’m sick of the twisted, sadistic legal justifications given for torture and extraordinary rendition.  Yes, I’m talking about those coming directly from the Obama Administration.  Your so-called “anti-war candidate” has taken the art of making excuses for doing evil to an entirely new level.  On top of that, you have the unmitigated gall to refer to this stuff as “centrism!”

I’m particularly sick of you blaming us for the war on drugs.  While some Republicans have said some stupid things about drugs (particularly Nixon and Reagan), none have ever done even a fraction of the damage that your previous messiah, Bill Clinton, did.  He was, by any reasonable empirical measure, the worst drug warrior in the history of the world. Your abhorrently self-styled “first black President” put more people in prison – and in a more racially disparate fashion – than any other leader ever, anywhere.  So yeah, fuck you on that one.

I’m sick of you holding up the worst fringe lunatics of the Republican party and pretending that they represent the mainstream.  Dick Cheney, Rush Limbaugh, Sean Hannity, Glenn Beck, and Ann Coulter are not mainstream Republicans.  They are media-whoring nutjobs.  For once, try responding to our real thinkers like Peter Schiff, Radley Balko, Ron Paul, Jacob Sullum, Ayn Rand, Adam Kokesh, or really just about any everyday Republican you meet on the street.

I’m sick of you pretending that the media favors Republican ideas.  I mean this is really just outrageous.  Look at the idiotic characters the media puts up to represent our corner!  In media-speak, anyone who is paranoid, deranged, and misinformed is a Republican.   Never are thoughtful, open-minded Republicans given an opportunity to participate in the dialogue.  But then, the job of the media is to maintain the notion that everybody belongs on the one-dimensional political spectrum.  Simple.  They make you look stupid and they make us look stupid.  They certainly do not win us any friends, so stop pretending they are in our pocket.

I’m sick of your refusal to talk about spying, wiretapping, and surveillance of US citizens, which your top dogs support enthusiastically.

I’m sick of you pinning of every fear-driven prejudice, from racial bigotry to homophobia to xenophobia and beyond, to some kind of byproduct of Republican ideals.  Just so we’re clear about our respective political traditions:  We always wanted to free the slaves.  You resisted.  We had to go to fucking war against you to get you to admit that slavery is, well, wrong.  We wanted open borders and a welcome environment for immigrants.  You insisted on a federal minimum wage and controls on the economy that make immigration a far more complicated issue than it needs to be.  We never wanted government to be involved in marriage at all, and now you are upset because government marriage led to bigoted regulations on who can and cannot get married.  Imagine that.

Finally, I’m sick of you blaming us for the current state of affairs of our country.  You control both houses of congress and the white house, don’t you?  Or maybe you are finally realizing that no matter what fancy title and political affiliation a power-holder has, he or she will nearly always act in a way that preserves their power, to the exclusion of doing the good for good’s sake.  If you are so convinced that government is the solution, well, 70 million people just handed you the keys to the government.   Don’t whine to us because shit is going terribly wrong.

(Note to commenters: I realize that this post uses divisive language that I don’t usually use or condone.  However, I wanted to respond “in kind” to the original letter, using the same style and some of the same language, although I toned it down from a nearly constant stream of “fuck you” to only two uses of the phrase.  )

UPDATE – I thought of some more:

I’m sick of being made to feel like I’m not allowed to talk about or care about poor people.  Look, the government has done a bang up fucking job taking care of poor people right?  There are homeless in every major city – come to New York in the winter and ask a freezing homeless person if the expansion of the welfare state over the course of the past century has helped them.  There are over 2 million people in our prison system, most of whom, at least at the federal level, are there for non-violent offenses and most of whom are poor.  And then there’s the biggest elephant in the room: the federal reserve system, which you constantly pretend is a non-issue, fucks poor people really really hard.  So yeah, from now on, you don’t get to be the party of compassion.

I’m sick of hearing about “the Government’s lack of response to Hurricane Katrina” and other disasters.  Lack of a response?!  Oh, they responded.  They responded the way governments always do:  by shooting at poor fucking dying people trying to flee New Orleans.  More government was not the solution to this problem.  In fact, paramedics who were on the ground will tell you that the terror there would have been far less if the government had just stayed out and let charities saturate the area with food and fresh water.

I’m very, very sick of brain-sucking references to the status quo as the “free market.” As in the following exchange:

“I believe that the free market can create quality health care for everyone.”

“What, like we have right now?!”

No, not like we have right now.  There are so many laws, regulations, regulatory agencies, trade restrictions, and other bullshit that a person can spend their entire lives studying them and still not be sure if they are allowed to sell a fucking toothpick much less an innovative health care system.  When we advocate market solutions, please don’t say, “but it’s not working now!”  Of course it’s not working now, because your contorted efforts to make the market more safe have predictably resulted in it becoming less non free.

There are a number of places with commentary, if you want to join the discussion:

• The comments section of the post itself is the best discussion, and the one I’d prefer to house the archive.
• My Vimeo page for the video has quite a few comments as well.
• Also, there is a hilariously childish discussion on a third-rate yuku site called “The Rant.” I don’t know whether to laugh at these people or feel bad for them – if nothing else, the site seems to serve as a place to vent.  I didn’t expect my post to cause these kind of tantrums, but perhaps it’s therapeutic for the participants.

UPDATE:

Now a forum has started here at a website I’ve never heard of called bcvoice.com.  It’s somewhat similar to the yuku site, but with a modicum of maturity.  One thing I love is that people – quite a lot of people at this point – will sit and waste their time at their keyboard wondering aloud why this <insert fairly random disparaging adjective> “kid” would waste his time asserting his basic rights in his own community.

Yesterday, on Friday, June 26th, 2009, myself and one of my best and most respected friends and colleagues, R.J. Partington III, represented ourselves in the Second Circuit Court of Appeals in Lower Manhattan. The only higher court in the United States Court system is the U.S. Supreme Court.

The entire experience was one of the most intense, trying, and in some ways, rewarding of my life so far.

If you want some background on the case, which is significant both in fact and in legal precedent, please check out a documentary and website about it at http://www.campuscoup.org.

To (very) briefly recap the question before this court:

We were appealing an order from a federal district court that granted immunity (called “qualified immunity”) to four officials at SUNY New Paltz whom, we allege, violated our rights by retaliating against us for protected speech. The district court order held, in essence, that we had not alleged conduct on the part of these officials that the law allowed us to hold them liable for.

In our opinion, if the district court order is allowed to stand, then college officials at public universities will have very wide, almost all-encompassing immunity from free speech lawsuits.

The reason we represented ourselves instead of retaining an attorney was that the main litigation tactic on the part of the SUNY Administration was to paint a picture of us personally as disruptive students and all around terrible people. We wanted to show the judges very directly not only that we are gentle, caring, passionate people, but that we have a solid understanding of the legal framework in which the questions of this case must be answered.

Also, we’re poor. Broke in fact. Hiring an attorney for this argument was definitely not an option. Consider making a donation to the student free speech legal action fund.

So the oral argument on our appeal was to be heard by a panel of three judges.

On Monday of this week, we found out who the three judges were:

• Judge Richard C. Wesley, whom a friend of mine who watches the Second Circuit described as “the most conservative judge on the entire circuit,”
• Judge Rosemary S. Pooler, the most senior active judge on our panel and whom my same friend described as “perhaps the most liberal judge on the second circuit,” and
• Judge Joseph M. McLaughlin, a judge in Senior status who is something of a moderate conservative.

We spent the week hanging around the neighborhood of the court and observing many sessions. We wanted to understand how these judges operated: How many and what sort of questions they asked, what kinds of arguments they found compelling, even their senses of humor.

I quickly fell in love with Judge Wesley. I have always liked conservative jurists. I don’t identify completely with either “major” political party, although I am a registered Republican – a move I proudly made to vote for Ron Paul in the primary. In some areas, like journalism, I like “left” thinking better; but in the court system, I seem to identify with conservative judges more.

Wesley asked sharp, pointed, unearthing questions and had absolutely no patience for contrivances or obfuscation on the part of arguing counsel. Best of all, he genuinely seemed to want to make the correct decision vis a vis the law in every case that we observed.

Judge Pooler, the only Woman on our panel, seemed diplomatic and compassionate. Unlike her two colleagues, she made eye contact with the arguing counsel for nearly the entire argument. Her questioning seemed to focus on facts more than laws, and it was obviously a priority for her to wrap her head around a situation during oral argument.

Judge McLaughlin was certainly the hardest to read. He rarely spoke or even showed any expressive reaction at all. He scowled or frowned most of the time, although occasionally he broke a very genuine smile or even a small laugh.

In preparing for our argument, R.J. and I decided that I’d try to engage Judge Wesley and show that we were taking the case seriously and understood the law we were pleading while R.J. would try, as best we could in five minutes, to make sure that Judge Pooler understood the gravity of the, er, bullshit we had been put through. We hoped to win both of them over – we thought of Judge McLaughlin as a wild card, who might side with us if the other two did.

We, researched, prepared, drilled, and rehearsed all day every day this week.

The research was very exciting for me, strange as that may sound. If you ever decide to represent yourself in court, give yourself a lot of time to do research and try to do it in many different places and states of mind. Our research for this oral argument was mostly already done because we wrote our own brief, which we submitted nearly a year ago now.

For preparation, we basically just made an outline of the strongest points of our brief, and then color coded it: R.J.’s points were blue and mine were red. We also anticipated what the SUNY Administration might think were there strongest arguments (although, in our view, their case is miserably weak overall) and prepared rebuttals for these.

When the calendar came out (the same document that told us which judges had been assigned to our panel) it also told us how much time we had to argue: 5 minutes. So obviously with every single point in our argument we had to ask ourselves, “how can we make this point stronger in less time?”

We practiced again and again in the courtyard of an NYU Law School building on Wednesday and Thursday. We had a stopwatch and we just went through our argument, trying to keep it to 5-minutes. After 5 or 6 times, we had it pretty much down, so we starting interrupting each other, pretending to be the judges asking questions that we thought they might ask.

This was a trying time. We both got frustrated at times, but we kept drilling until the evening before our session.

On the day of the argument, I woke up around 6:20AM. I was unable to sleep much at all. I was achy and tense. The stress and anticipation were overwhelming.

At around 7:45AM, I awoke my co-plaintiff. We had decided the night before which documents we wanted in front of us during the arguments and put them on my USB drive: Our outline, our brief, and the district court order that we were appealing. I didn’t want SUNY’s brief on the podium because I had already read it literally three dozen times and it was full of bad energy and faulty logic. I didn’t want to risk that stuff seeping into my brain.

I was wearing sweatpants. I gathered my wallet, my cell phone, my USB drive, and a lucky glass sculpture and went for a walk to Staples on 86th and Lexington. The printer at Staples was down so I walked down Lexington to Kinkos on 78th St. Fortunately, this route caused me to pass an AMAZING bakery on the way back home so I got myself a super fresh red raspberry muffin. It was still hot from the oven. Absolutely amazing. If not for court, this might have been the highlight of my day.

I arrived back at the house at about 9:00AM. It was time to change. I had showered and shaved the night before, so I just wet my hair down a little and brushed it to one side. Then I put on my suit and tied the tie I had purchased the day before from a Chinatown street vendor ($5 for two) in a double windsor knot.

I had our documents. I looked mad professional. I was ready. to. go.

We got in a taxi at 9:30AM and got to the court house (all the way downtown, near the Brooklyn Bridge) at about 9:45AM. A small crowd (about 15) greeted us – they were all students, faculty, or alumni of SUNY New Paltz.

At this point, let me impart another piece of advice to other aspiring pro se litigants: Get to know the courthouse before you go in. We had already gone through security 8 times in the past 4 days and knew every step to the courtroom. If we hadn’t, I have no doubt we would have gotten very lost, as in fact we did the first time. The courtroom was on the 9th floor, accessible only by a single bank of elevators.

I hugged R.J. in front of the large wooden doors to the court. As we walked into the court room, which was (1) pretty huge but not overwhelming and (2) filled with a aura of luster but still somehow spartan, I don’t remember feeling at all nervous. We walked to the front of the court room and signed in with the deputy.

At this point, we found out that if we wanted to have time for rebuttal, we had to take it out of our initial argument time. This was a major bummer, because we had prepared a 5 minute argument. I reluctantly told the court deputy that we’d reserve 1 minute for rebuttal use and use 4 minutes for our initial argument. He told us we were last on the court docket, which we already knew from the calendar.

We sat down on the left (Appellants side), comfortably in front of the group of supporters who came to observe. A friend advised me – “deep breaths.” This was great advice, but I was so nervous I had trouble following it.

Within 120 seconds of my sitting down, we heard the door to the judges’ chambers open and in came three black robes with jurists in them. We all stood up. The court deputy stood up, pounded his gavel, and cried,

Hear ye! Hear ye! This is the United States Court of Appeals for the Second Circuit. All those having business before this court, draw near and ye shall be heard.

Beautiful words. We sat.

As each case before ours was called, we got to absorb one last sense about who our judges were and how they did their jobs.

Judge Wesley was in an a particularly energetic way. He yelled and cracked jokes right out of the gate – at one point he had the entire court room laughing at loud during the very first case. Of course in doing so he absolutely and shamelessly humiliated arguing counsel, who deserved it on account of his ridiculous argument.

As each case went on, we got more and more nervous.

I remember my stomach feeling like a brick after the third case because I wasn’t sure if ours was next. I listened with fear and anxiety as Judge Pooler called out the name of the fourth case – it was not ours.

In the subsequent five minutes, R.J. And I whispered to each other and made some last minute changes improvements to our argument.

The world took on a character it never had before – the smells, tastes, sounds, and sights that surrounded me were so sharp and crisp, I knew I was about to do something very important that very few are privileged to do. I was terrified, but I was ready.

“The court will now hear Holmes v. Poskanzer.”

Part II

July 1st, 2009 at 7:35 am

As Judge Pooler called the abbreviated name of our case (and thus my own name) aloud into the courtroom, I remember a small shock of lighting down my spine.

I looked at R.J., who was seated to my right. I said something like, “OK, let’s do it.”

We got up, as casually as we were able to, and tried to look like this was something normal and natural for us. I approached the podium to his right, as we had practiced.

As I approached and tried to begin speaking, I choked. I had no air. The very first words of my argument were “I’m sorry, your honor, I need to take a deep breath.”

Judge McLaughlin, in what were his first bench comments of the day as far as I can recall, asked, “A deep breath?!!”

I don’t recall exactly how I responded – I think I just admitted that I was nervous. Then I stepped back, took a deep breath, and prepared to begin.

Before we began our argument, I was to say approximately this:

“Your honors, before we begin, we want to express to the court that although we are pro se litigants, we view this experience as an exciting opportunity and we hope that you’ll question us as aggressively as you would a professional attorney.”

Andy Kossover, a major mentor of mine who has been one of the top-shelf heroes of this entire fight, including donating thousands of dollars worth of his time and his office space pro bono, had wondered aloud a while back whether the judges might “take it easy” on us since we were pro se. Another friend of mine confirmed that this is often the case.

Of course this would be a problem, since the complexity of the case and the hyper-legal decision we were appealing made it difficult to know exactly what the judges were thinking – we needed their questions to clue us in.

Andy (showing his typical confidence in me ) suggested that we invite the judges up front to really grill us.

Although I don’t think I delivered it anywhere near as eloquently as I have written it above, the invitation was graciously accepted, to say the least. I was stunned at how quickly and frequently the judges interrupted us to engage our arguments. But I’m getting ahead of myself.

So, just as I was about to deliver this pre-argument invitation, Judge Pooler interrupted and said something like, “So, you are both pro se and both arguing, is that correct?” I think R.J. answered in the affirmative. Then she asked which of us was which.

This was a major bummer, because we had planned to introduce ourselves about 10 seconds into our argument. We were WAY too nervous to pivot and divert course at this point. So we answered her question, introducing ourselves.

Then I said, “May it please the court,” and we introduced ourselves again. That’s how we practiced it, and at this point we thought sure we’d be lost if we deviated from our rehearsed argument, even if it was awkward and embarrassing to keep to our script.

However, another 30 seconds later or so, Judge Wesley began interrogating us and didn’t stop for the rest of the argument – we hardly returned to our rehearsed argument at all after that. At first, both he and Judge Pooler seemed very unhappy with us.

“This is not recreation – this is costing the state a lot of money,” Judge Wesley said approximately, scolding and scowling at us. I didn’t get the least bit frustrated or scared – I just settled in and got down to the argument. In fact I remember the first real rush of exuberance at about this time. I thought to myself that as long as we could keep Wesley talking and interested, our case would prove compelling enough to him and the others.

And we did.

Our first argument dealt with the district court order’s use of Crawford-El v. Britton, a case that we thought was highly favorable and encouraging for ours. We had the facts handy, the law straight, and most importantly, we looked and sounded sharp and prepared.

About 2 minutes (seriously) after Judge Wesley had scolded us, in an amazing reversal of his demeanor, he turned to Judge Pooler, and said, “Give them more time!”

And they did. Our initial argument was supposed to be 4 minutes and it lasted, as I recall, about 16. The judges kept asking questions, adding time, analyzing – even engaging each other about our arguments.

Judge Wesley asked most of the tough questions, at one point surmising that we couldn’t rely on the facts that we pled to carry us past a motion to dismiss, citing (dun dun dun) Ashcroft v. Iqball.

Ashcroft v. Iqball was decided long after our brief was written. My assumption was that his assumption was that we hadn’t studied the case.

au contraire, Judge Wesley! I had personally studied every single “Qualified Immunity” case during the current Supreme Court session, including the one he asked about and even the Reading case which was decided literally two days before our argument.

As I drew the distinction between our case and Iqball, he started asking questions leading up to my conclusion, and I paused and said to him something like, “Judge Wesley, you are anticipating my argument, and that makes me happy.” The court room laughed. I suddenly thought of my own Constitutional Law and Seminar Professor, Nancy Kassop – her spirit was strong in the Second Circuit!

At one point, Judge Wesley asked if we had abandoned the argument that we were due representation by counsel at the campus hearing. My response was something like, “I don’t think we have abandoned the argument, Judge Wesley, but we do believe that in this limited set of circumstances that Qualified Immunity is warranted on that issue.” I’m sure I didn’t say it that well, but the idea is sound.

Judge Wesley gave the most flattering response of the day: “Well, that’s a reasonable and admirable concession. The lawyers in this circuit could learn something from you!”

We were glowing. I felt so content and proud in this moment to be representing the students of the information age. The torch of freedom burnt brightly for a few moments under my care.

I can’t overstate the power of having so many supporters behind us – it really gave us the confidence we needed. Thank you again to those who attended.

Eventually, Judge Pooler, after asking when I intended to apply for law school, told us we had made a good and interesting argument and asked us to have a seat while she and her colleagues heard from SUNY’s lawyer.

I’m not going to go into the performance of our adversary except to say that she had a really bad case to argue and, all things considered, she did well with it.

Judge Pooler grilled her a little, but not as much as we would have liked, given how substantially her statements (which were directly from SUNY’s brief) deviated from the record.

As we sat at the appellants table listening to this go on, we realized we had once last and final chance to make an impression.

R.J. turned to me and asked if he could have one minute to himself to talk directly to the judges. He initially wanted to bring up the “document discrepancy,” but I suggested it was too short a time to explain the significance of it. He then asked for 45 seconds. I told him I wanted 15 seconds up front to dispute SUNY’s fact pattern and then I’d turn it over.

In what seemed like 3 beats of my racing heart, we were back at the podium.

I started to list parts of our adversary’s factual narrative that were incorrect, and less than 10 seconds into our rebuttal Judge Wesley engaged me again.

We went for several minutes, and before I knew what happened, our argument was over. I felt horrible. I wanted – I needed – for R.J. to tell his story.

In a move of momentous bravery, R.J. cleared his throat as the judges were standing to leave and asked Judge Pooler, “Your Honor can I please have 20 seconds?”

“20 seconds, yes,” she responded.

At this point, R.J. put it all out there. He told about his years of working for the SUNY Administration as an RA and an orientation leader. He told about how sick he felt when the headlines of the paper read “Harassment” and had his name attached. He told about being publicly brought up on phony charges. “I have never harassed anyone in my life,” he truthfully told her.

At this point, I almost lost it. I fought back tears. Later, our supporters in the back told us that they did too.

The passion was so strong in the room that I smelled it. I tasted it! Rarely have I had such a rush of emotion and sensitivity. R.J. turned 20 seconds into 3 minutes and answered several more questions from the judges.

The judges had given us a total of 17 extra minutes – far, far more than had been given in any other case we had observed all week.

Judge Pooler repeated her compliments as the judges again started to get up and leave. “Very interesting argument – and you did a good job making it.”

In one last chance to reach out, I said, “And, your honor, we’ll do a good job conducting a limited and respectful discovery with the court’s indulgence.”

She gave me one last look that I couldn’t quite understand. I read something like, “I just don’t know how I can decide in favor of two radical college students over a state government, but I want to and I’ll try.”

I am generally a skeptic of government. Quite fervently so. Yet, throughout this experience, I got the distinct sense that, at least sometimes, justice is truly done in that room.

This is a case about academic liberty. It’s about the rapidly changing roles of those having knowledge to impart, those thirsty to receive it, and those who moderate the exchange.

For three years, R.J. and I have been using words like “Qualified Immunity” and “facts that actively and plausibly show our allegations to have merit” instead of talking about our vision for the future of higher education. It was that vision that got us elected, and our right to develop and express that vision that must be allowed to prevail here.

So, if I may, let me end this post with a one-paragraph summary of the basis of that vision. This is the heart of the message that I want to get back to delivering to all of our supporters in New Paltz and beyond:

The information age is here, and that means a radical change in the way we understand knowledge and power. Knowledge can no longer be contained in the way it has been in the period from the beginning of time until now. No institution stands to benefit more from this development than the relationship between teacher and student. It seems to me inevitable that the importance of the state, and indeed the role of any person trying to position themselves in the middle of this relationship, will be diminished. Those seeking (rather childishly I think we’ll see in retrospect) to maintain the hierarchical, credentialistic, closed-source systems of knowledge exchange as the exclusive educational model can only succeed at doing so if they can stifle the speech, press, and assembly of those who are willing to point out – and become exited by – the wonderful world that lies ahead of us.

Please join the Facebook group to show your support for student free speech and to keep up with this story.

To learn more about the SUNY Free Speech case, please see Campus Coup.

Update: Apparently YouTube deleted this video, along with most other C-SPAN videos of the house floor.  Where to go now for this content?