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December 26, 2014 / 4 Tevet, 5775
 
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CUNY Claim of No Constitutional Violations at BC BDS Event Flawed

The standard for judging whether constitutional rights can be abrogated is not, as the Investigators claimed in their Report, based on sincerity, but on whether or not, at the very least, there was a reasonable belief that the Four were about to disrupt the BC BDS event. The Investigators stated clearly that there was no such reasonable belief at the time the Four were ejected from the event. Doesn't this mean the Investigators drew the wrong conclusion?

Brooklyn College BDS forum, Feb. 7, 2013

Brooklyn College BDS forum, Feb. 7, 2013
Photo Credit: Facebook

There was much sturm und drang about “free speech rights” and “academic freedom” in the buildup to a February 7, one-sided anti-Israel event at Brooklyn College, co-sponsored by BC’s political science department, along with the student group, Students for Justice in Palestine.  The event, to promote the form of economic and political warfare against Israel known as BDS (Boycott of, Divestment from and Sanctions against Israel) went forward.

Suggestions that the constitutional rights of four Jewish pro-Israel Brooklyn College students were violated when they were ejected – at the hands of Brooklyn College public safety officers and at the sole direction of a 20-something non-objective outsider whom BC had vested with its authority – from the event were initially rejected and ridiculed.

That is because initial reports, including those made by BC officials, blamed the behavior of the students as the justification for their expulsion.

However, the existence of an audiotape surreptitiously made at the event, which flatly contradicted the public position of BC and some media outlets, was revealed on Feb. 12.  The next day the Chancellor of the City University of New York announced  that there would be an investigation into the Feb. 7 event, headed by Brooklyn College’s own Chancellor for Legal Affairs Frederick P. Schaffer, and two partners from the law firm Bryan Cave LLP.

A 36-page, double-spaced Report of the Investigation was released on Friday, April 12 and was posted online sometime over that weekend.

The four problem areas addressed in the Investigation are: I. The Reservation and Admissions Process (addressed in the Report in pages 3 – 15); II. The Handling of the Press (Report, pp. 16 – 20); III. The Removal of the Students (Report, pp. 20 – 35); and IV. The Q & A Session (Report, pp. 34-35).

Rejecting the claims of constitutional violations, the Investigators instead found that the event was plagued by extreme disorganization, unwarranted reliance on students as decision makers, and flawed – though extensive, and presumably expensive – preparations.

In other words, the Investigators concluded that the problems were caused by benign negligence rather than malignant intent.

But the evidence adduced, the information available, and the justification for action described in initial reports that were later revealed as not just flawed but false and obviously so, puts that conclusion in question.

Even more troubling is that despite the sophistication of the legal experts responsible for the Investigation, they seem to have issued a flawed legal conclusion on the most important issue at stake.

The standard for judging whether constitutional rights can be abrogated is not, as the Investigators claimed in their Report, based on sincerity.

The standard for judging the permissibility of restrictions on constitutional rights is whether or not, at the very least, there is a reasonable belief that, in this case, the Four were about to disrupt the BC BDS event. The Investigators stated clearly that there was no such reasonable belief at the time the Four were ejected.  Therefore, based on the evidence provided in the CUNY Report, it would appear that the constitutional rights of the four Jewish pro-Israel students were violated.

What follows are the details of the Investigation, focusing primarily on the ejection of four students during the event.

*************

The Investigators concluded no discrimination had taken place with respect to issues I. II and IV.

However, in addressing the third issue, that of removing the students, the Investigators concluded that while there “was no support for an inference of discrimination based on religion” (R.p. 33), they were not as confident that another form of discrimination had not taken place.

“A more plausible inference can be drawn that the removal of the four students was motivated by their political viewpoint,” the Investigators wrote. (R.p. 33) Making clear their understanding that political viewpoint discrimination was a relevant consideration, the Investigators noted that “Guzman [the decision maker] knew Goldberg [one of the Four] from a prior SJP event at which she had asked questions that challenged Palestinian positions.” (R.p. 33)

The constitutional prohibition on viewpoint discrimination means that the government (or government funded entities, such as Brooklyn College) cannot selectively silence viewpoints.  Brooklyn College, which is a state actor for purposes of this analysis, must make and enforce rules that are “viewpoint neutral.”

And yet, the Investigators wrote without further discussion that, “any conclusion about a discriminatory motive would be speculative.” (R. p. 33)

Instead, for factual and legal reasons they did not identify, the Investigators chose to “credit the sincerity, even if it was mistaken” of Guzman that a disturbance was about to happen, despite their own determination “nothing the four students had done gave rise to a reasonable fear that a disturbance was about to erupt.”

Having made the curious decision that Guzman’s claim of sincerity for his belief that the four expelled students constituted a threat of disruption for the meeting, the Investigators made the equally troubling decision to conclude that such sincerity is, as a legal matter, enough to immunize Brooklyn College from liability – and enough to strip the Four students of their constitutional rights.

There are three problems with those choices.

First, Carlo Guzman was neither objective nor motivated to ensure that the full panoply of viewpoints had equal access to the forum he was running.  In fact, not a BC student at all, he was one of the central originators and organizers of the BC BDS event.  He is also a leader of Hunter College’s Students for Justice in Palestine, despite no longer being enrolled there. And Guzman was the sole source for what turned out to be unquestionably false – not just mistaken but false – claims made to BC officials and administrators, including the Investigators themselves that the Four were disruptive and interfering with the BDS event. And the Investigators recognized this because they concluded that Guzman’s alleged concern about a disruption was “not reasonable.”

Second, Guzman’s accounts of events were fatally inconsistent with one another, and they were fatally inconsistent with every single other report of what happened at the event.  These inconsistencies make it completely unreasonable for the Investigators to believe in Guzman’s sincerity.  Put it this way: if Guzman were on a witness stand, the inconsistencies between his different accounts, and between his accounts and everyone else’s, would make cross-examining him a trial lawyer’s dream.

The lawyers who led this Investigation are undoubtedly experienced enough to know that.  And that makes their decision to rely on Guzman’s credibility all the more strange.

And third, even if the Investigators naively chose to believe that Carlos Guzman was sincere in believing “a disturbance was about to erupt,” they are wrong, based upon the law governing political viewpoint discrimination, in concluding that such a belief justified the removal of the four pro-Israel students – especially when the Investigators themselves recognized that any such belief, sincere or otherwise, was not reasonable.  And that makes their determination that there was no constitutional violation quite difficult to accept.

What follows describes the Feb. 7 BC BDS event, focusing specifically on the ejection of the four Jewish pro-Israel students.

INITIAL REPORTS

The Feb. 7 Brooklyn College BDS event was held in a relatively small lecture room.  Alex Kane, a reporter for the anti-Zionist blog MondoWeiss, who attended the BDS event reported that night that the event “came and went without a hitch.” Kane was interviewed the next day by a reporter from the ardently anti-Israel Electronic Intifada. He told the interviewer that “the event really went off without any problems.”

Another anti-Zionist journalist who was present at the event, Lisa Goldman, ridiculed the “right wing” pre-event build-up.

“And after all that, the event turned out to be a non-event. An audience of about 300 people sat quietly and listened to Judith Butler and Omar Barghouti speak, which they did — without interruption” wrote Goldman in +972.

The same descriptions of an event free from disturbance also came from the New York Times and the Chronicle of Higher Education.

Oops.

So why were four Jewish pro-Israel Brooklyn College students ejected from the event?

REPORTS OF THE FOUR’S OUSTER, BASED UPON SJP MEMBER CLAIMS

The initial reports blamed the expulsion of The Four on the behavior of the students themselves. Interviews with Brooklyn College officials immediately after the event stated that those students were tossed out because they were vocal, disruptive and belligerant.  This was from a report of an interview of a Brooklyn College spokesperson the day after the event:

My understanding is that these students were in the room along with the rest of the audience. From the first speaker they began to speak out, they were becoming vocal and disruptive to the members around them and one of the student organizers of the event went to them and said ‘you really need to be quiet you’re disrupting other people around you.’ They then did not comply and a couple of police officers asked them to come out into the lobby.’ Thompson also claimed that school officials in attendance, including Morales, confirmed this account.

Once word got out that the Four were ejected from the event for creating a “disturbance,” the revisionism began.

Alex Kane, who had already written about the “hitch-free event,” began reporting that the Four caused a disturbance so great it warranted their ejection.  Kane’s post-revelation report suddenly contained descriptions of students disrupting the speaker by “talking,” “passing out anti-BDS flyers,” and being so belligerent they had to be removed by security guards.

Eventually Kane wrote something of a correction – which he called “an update.” With respect to those “anti-BDS flyers” (informational sheets) that Kane quoted the SJP activists as saying the Expelled were passing out?  To whom were they passing them?  Why it was:”[update: amongst each other].”

Despite the dramatic difference between handing out leaflets to the audience during a speech and handing them to the people sitting next to you with whom you came, Kane doubled-down on blaming The Four.  He wrote, “I have since spoken to SJP member Carlos Guzman, who told me the same story” [from his previous article].  He also wrote that “it’s not only SJP students that dispute the story from Goldberg and Ziegler.” Where else did he see blame cast on the Four?  Why, “the Brooklyn College administration’s” statement.  Which was made – entirely, we shall learn – in reliance on statements made by Guzman.

SJP STATEMENT BLAMED THE BEHAVIOR OF THE FOUR FOR THEIR OUSTER

The official SJP statement regarding the ouster of The Four was issued on February 14.

During Judith Butler’s speech, four students were removed from the room by security for disturbing others sitting near them. The individuals in question were speaking loudly enough to prompt people sitting around them to ask them to be quiet. They were talking, shuffling papers, and moving noisily around in their seats for several minutes, while Dr. Butler was talking, prompting complaints from other attendees sitting nearby.

Because the acoustics in the room were poor and Dr. Butler was speaking softly, their actions prevented those around them from hearing her well.

The decision to remove these individuals was made by organizers after consulting with security, after they failed to comply with requests to be quiet. Their removal was based solely on the fact that they were disturbing guests around them.

THE FACTS GARNERED BY THE INVESTIGATION

Guzman is not a Brooklyn College student. He had been a leader in the Hunter College Students for Justice in Palestine group in the fall of 2012.  However, in 2013, when the planning for and the event took place, Guzman was not a student at all, anywhere, although he continued to play a leadership role in “Students” for Justice in Palestine.  (R.p. 3) Guzman was present at many meetings with Brooklyn College faculty and administration in preparation for the Feb. 7 event. (R.pp. 7, 16, 21, 22).

After the Feb. 4 major planning meeting in preparation for the BDS event, Brooklyn College administrators told both Guzman and Sundus Seif, the head of BC’s SJP group, that “the forum was to be treated as a student club event, rather than a college event and that the students and the faculty marshalls would be responsible for maintaining order.” (R. p. 21).  Seif acted as the master of ceremonies for the event, and Guzman essentially played the role of field marshall.

Why did BC officials turn over responsibility for maintaining order to the students? Perhaps this decision was driven by the impulse to draw a distinction between BC and what some described as a virulently anti-Israel event.  It remains hard to understand, however, how that impulse was indulged by permitting an irresponsible and potentially dangerous delegation of authority.

Based upon interviews with 23 students, listening to audiotapes of the event and other material, the Investigators’ Report included the following information.

Unequivocal conclusions of the Investigators

♦  There was no justification for the removal of the Four. (R.p. 32)

♦ The Four did not create a “disturbance.” (R.p. 32)

♦ The speaker – despite being soft-spoken and the communications system not working perfectly – could be heard with perfect clarity throughout the time the Four were present. (R.p. 32)

♦ Any noise made by the Four was the result of their late entry [a result of the problems explored in issue I.] (R.p. 32)

♦ Other noise that was made was made by or caused by Guzman’s intervention. (R.p.32)

♦ The Four had neither passed out nor were “waving about” the informational leaflets (R.p. 32)

♦  Nothing the four students had done gave rise to a reasonable fear that a disturbance was about to erupt. (R.p. 37)

♦ Guzman had no basis for demanding the students turn over their informational leaflets, and the students were justified in refusing to do so. (R.p. 32).

In other words, the reasons given to justify the removal of the Four had no basis in fact.  The Four had not caused a disturbance; had not passed out or waved about informational leaflets; had not interfered with the ability of audience members to hear the speaker; had not provided any reason to believe that they were about to create a disturbance; and had been justified in refusing to hand over their informational leaflets.

So, what did happen at the event?

According to testimony provided to the Investigators, no audience members complained of any disturbance to any of the student monitors or faculty marshalls in the room.  The BC student monitors (R.p. 25), the faculty marshalls (R.p. 31), the plainclothes officers (R.p.27) and the BC administrators (R.p. 28) who were present in the room did not see or hear any disturbances.

The three audiotapes made of the event all revealed there were no disturbances during the event.  The only audible noise, other than the speaker and occasional chanting from outside the building when the speaker was quiet, was minor shushing when the Four entered the room, the noise made when Guzman demanded the Four turn over their papers, and then the protest by one of the Four – that their free speech rights were being violated – when they were ejected. (R.p. 31)

REPORTS OF DISTURBANCES AND DISTRIBUTION OF LEAFLETS

♦ Guzman told the Investigators that Ismail Bekiroglus, an SJP student monitor, “confirmed that a member of the audience had complained that the four were making a disturbance.” (R.p. 26)

◊ However, Bekiroglus’s statement to the Investigators was that he did not hear any noise other than one person say “shhh,” and another say “quiet down,”  when the Four entered the room. (R. p. 25)

♦ Guzman told the Investigators that an SJP student, Ameera Hasan, told him during the event that there were students inside who were disturbing the event. (R.p.27)

♦Guzman told the Investigators that an SJP student, Hannah Johami, came over to him and told him there were four people inside the room who were disturbing the event. (R.p.25)

◊ Two SJP students, Hasan and Johami, told the Investigators that after the event began, another person – whom they did not know – came out and said there were people inside creating a disturbance and “she thought they were passing out flyers.” (R.p. 25) Hasan told Investigators that the unknown female pointed out the Four to her when they went together into the room. Hasan said she told Guzman about the disturbance. (R.p. 26)

The unnamed female was not otherwise mentioned in the Report, so there is no way of knowing how much, if any, effort was made to find this individual, although there were plenty of pictures of the event attendees posted on the SJP Facebook page.

Guzman told an administrator, Vice President for Student Affairs Milga Morales, who was in the room at the time, that The Four were “disturbing the event.” (R.p. 26)

◊ Morales corroborated that Guzman told her this, but she said she did not observe any disturbances. (R.p. 28)

Guzman told the Investigators that Morales told him she would walk over and talk to the Four.  (R. p. 26) Guzman also told the Investigators that even after she went over to the Four and spoke to them, they continued talking. (R.p. 27) ◊ Morales told the Investigators, however, that she told Guzman to talk to the Four, she saw him do that, and she said the room was quiet after that until the Four were expelled.  (R. p. 28)

♦ Senior Vice President for Administration and Finance Joseph Giovanelli, who was standing outside the event room told the Investigators that Guzman told him and some of the public safety officers in the hall that “the students who were making a disturbance would not listen to him and had to leave.” (R. p. 28)

♦ One of the public safety officers, Raishawn Harris, told the Investigators that when he came out, Guzman told her that “he needed to remove four people who were causing a disturbance and interfering with the speech.” (R. pp. 28 – 29)

♦ The other public safety officer, Maureen Knight, told the Investigators that as she entered the event room, Guzman told her “that the students were disturbing the event and were waving some papers.” (R. p. 29)
◊Knight, however, told the Investigators that when she entered the room “she saw two women shuffling papers,” and two men “who were not doing anything.”  Knight also told the Investigators that “Guzman pointed to the two men and said they had to go too.” (R.p. 29)

♦ Director of Brooklyn College campus security Wenz told the Investigators that after the Four had been removed from the event, he asked Morales what happened.  Morales then told him the Four had been “holding and waving flyers and disrupting the event and that Guzman had asked them to leave.” (R.p. 29)

♦ Wenz told the Investigators he asked Morales what she wanted to do and she replied, “it’s their event.” (R.p. 29)

♦ Wenz then directed the officers to remove the Four from the area, and they were taken down the stairs. (R.p. 29)

In other words, with the exception of the unknown, unnamed female who was not interviewed by the Investigators, Guzman was the only one who said the Four were disrupting the event, creating a disturbance, and distributing and/or waving about leaflets.

GUZMAN MADE THE DETERMINATION AND DIRECTED THE EXPULSION OF THE FOUR

Carlos Guzman was the sole decision maker in a sea of faculty, administration, public safety officers and other adults.  Brooklyn College empowered this outsider to act as its agent, with complete control over how and whether, among other things, to honor the constitutional rights of Brooklyn College students.  And not one of the dozen or so Brooklyn College or CUNY representatives present that night lifted a finger, or a voice, to stop him.

The Four were removed from the BC BDS event room, barred from voicing their opinions, barred from speaking freely, unable to freely associate with their peers and unable to hear and engage in the debate as are their rights under the First Amendment to the U.S. Constitution and as they had been promised and encouraged to do by no less than the president of Brooklyn College, Karen Gould, when she wrote to the school community on January 28, “we uphold their right to speak, and the rights of our students and faculty to attend, listen, and fully debate.”

The Jewish Press exchanged a series of emails with  CUNY’s Senior Vice Chancellor Jay Hershenson.  We asked why, given the absence of any evidence to the contrary, the Investigators refrained from making a determination that the Four had been discriminated against on the basis of their political viewpoint. Hershenson acted as the go-between with the Investigators.  This was his reply:

1.(a)  University Counsel indicated that the answer to your question is in the same paragraph from which you properly quote.   Counsel indicated that although there was some evidence that the motive was political discrimination, they  concluded that the preponderance of the evidence favored the conclusion that they were removed because of a sincere, albeit exaggerated fear of a disturbance by Guzman.
(b) Counsel advised that it is not the case that more evidence would have made it less speculative since there was no other source of evidence on the question of motivation.  Rather, based on all the evidence, Counsel concluded that the inference of discrimination was weaker than the inference that Guzman acted from a sincere but exaggerated fear of a disturbance.

But the law is that even if Guzman had been correct that a disturbance was about to erupt, his removal of the students would not have been justified. That is especially clear because the Investigators themselves recognized that any concern on Guzman’s part that the Four might become disruptive, even if it was sincere, was not reasonable.  The law is absolutely clear that only a “reasonable fear” of imminent violence can justify restriction of First Amendment protected activity.

What’s more, the weighing of the evidence as described in Hershenson’s letter is one appropriately used in employment discrimination cases, not ones in which constitutional violations are claimed.

The Investigators  make it absolutely clear: the Four were kicked out of the BDS event because Guzman saw they had sheets of paper with information printed on them that countered the views being presented by the BDS speakers, because Guzman had seen one of the Four speak out against “Palestinian” positions before (R. p. 8, fn 2), and because Guzman “might have harbored some resentment” that the Four were allowed in to the forum at all [addressed in the part part of the Investigation]. (R.p. 33) Guzman was quoted in a report shortly after the event that he had the Four removed because “they didn’t belong there.”

Jay Sekulow, the head of the American Center for Law and Justice and one of the nation’s leading viewpoint discrimination scholars and advocates told The Jewish Press that for Brooklyn College “to eject students merely because they had materials that opposed the point of view of the speakers – even if the students were distributing them – is classic viewpoint discrimination and is prohibited by the U.S. Constitution.”

Sekulow went further, based upon his own experience litigating many of the most significant viewpoint discrimination cases in U.S. courts, including in the U.S. Supreme Court.  He said, “even if the students were understood to be potential troublemakers, the perception of potential disruption is insufficient grounds for ejection; there has to be actual disruption or the students’ removal is unconstitutional.”

As Hershenson wrote after fielding a series of questions put to him by The Jewish Press, “the report will be discussed and it will provide an important opportunity to make improvements.”

Let’s hope so, because many are needed.

About the Author: Lori Lowenthal Marcus is the US correspondent for The Jewish Press. She is a recovered lawyer who previously practiced First Amendment law and taught in Philadelphia-area graduate and law schools.


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6 Responses to “CUNY Claim of No Constitutional Violations at BC BDS Event Flawed”

  1. Stan Brin says:

    Anybody stupid enough to expect a different opinion?

  2. Gil Gilman says:

    No!

  3. Gil Gilman says:

    This report reminds me of a Mark Twain quote, "there are lies, damned lies, and statistics." I leave it to you the reader to prove that the 36 page report doesn't fall under all three categories.

  4. Alan Kardon says:

    This is a publicly funded school. Why are we hearing that it was run by incompetent people. Let some heads roll and get better administrators.

  5. An incompetently run event is bad enough. A politically slanted event is worse, though not exactly a big surprise. BUT — a report by intelligent lawyers, at a fancy law firm, paid, no doubt, lots of tax dollars do to their 36 page legal analysis — for such a report to get the law WRONG? That's a big problem.

    I hope the students whose rights were violated have read this article, and the report, and that they are prepared to do something about it. This being America, the thing to do when your rights are violated is to hold the violators to account. In court.

  6. Anonymous says:

    As I listen to the Boston events today the uncle of the bombers said that they were not raised like this. He said they must have been radicalized elsewhere. My first thought was that they probably went to a BDS event on campus. This is why BDS, and other hate organizations, should be kept off campuses.

    This is what Karen Gould, BC President doesn't understand. This wasn't about free speech. This was about prevention of violence.

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