In a highly interesting and entertaining opinion, the Supreme Judicial Court nullified the Town of Southboroughâs public-meeting rule requiring all comments to be respectful and courteous.
The text of Southboroughâs regulation reads this way:
All remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal or slanderous remarks. Inappropriate language and/or shouting will not be tolerated. Furthermore, no person may offer comment without permission of the [c]hair, and all persons shall, at the request of the [c]hair, be silent. No person shall disrupt the proceedings of a meeting.
These provisions were put to the test after a heated select board meeting in December 2018. After discussing a real estate tax increase and open meeting law violations, the board provided an opportunity for public comments.
This is when Southborough resident Louise Barron approached the podium carrying a homemade sign which read âStop Spendingâ and âStop Breaking Open Meeting Laws.â
She criticized the board members for âspending like drunken sailorsâ and then lambasted them for their alleged open meeting law violations:
And the next thing I want to say is you said that you were just merely volunteers, and I appreciate that, but you’ve still broken the law with open meeting law, and that is not the best you can do.
At this point, board member Daniel Kolenda suggested that Ms. Barron was slandering town officials and took it upon himself to end the public comment session.
Barron continued to speak over Kolenda saying
Look, you need to stop being Hitler. Youâre a Hitler. I can say what I want.
Once all the cameras were off and the meeting was in recess, the two-faced Kolenda addressed Barron. According to the SJCâs summary of the facts,
Kolenda turned off his microphone, stood up, and began pointing in Barron’s direction, repeatedly yelling at her, “You’re disgusting!” Kolenda told Barron that he would have her “escorted out” of the meeting if she did not leave. Concerned that Kolenda would follow through with his threat, Barron left the meeting.
Shortly thereafter, Barron filed a lawsuit against Kolenda, individually and as a member of the select board.
The lawsuit claimed, among other things, that Southboroughâs regulation barring public comments that were not ârespectful and courteousâ violated Massachusetts Declaration of Rightsâmost notably the right to assemble (Article 19) and the right to free speech (Article 16).
First, addressing the right to peaceably assemble in Massachusetts, the SJC wrote:
art. 19 reflects the lessons and the spirit of the American Revolution. The assembly provision arose out of fierce opposition to governmental authority, and it was designed to protect such opposition, even if it was rude, personal, and disrespectful to public figures, as the colonists eventually were to the king and his representatives in Massachusetts.
After citing the colonial revolutionaries John and Samuel Adams as well as the writer Alexis de Tocquiville, the SJC continued:
From the beginning, our cases have also emphasized that “the fullest and freest discussion” seems to be sanctioned and encouraged by the admirable passage in the constitutionâŠso long as the right is exercised in “an orderly and peaceable manner.
The court was quick to add that
“Peaceable and orderly” is not the same as “respectful and courteous.” There was nothing respectful or courteous about the public assemblies of the revolutionary period. There was also much that was rude and personal, especially when it was directed at the representatives of the king and the king himself.
While governments may set some regulations on the time, place, and manner of public comments, no restrictions may be imposed on the content of such speech.
In this case,
The content sought to be prohibited -â discourteous, rude, disrespectful, or personal speech about government officials and governmental actions — is clearly protected by art. 19, and thus the prohibition is impermissible. In sum, the town’s civility code is contradicted by the letter and purpose of art. 19.
Next, the court held that the townâs content-based civility code also violated free speech rights provided by Article 16 of the Massachusetts Declaration of Rights.
There is no question that this civility code is directed at political speech, as it regulates speech in a public comment session of a meeting of the board, and that it is content based, as it requires us to examine what was saidâŠAs such, it must withstand strict scrutiny, which means it must be “both ‘necessary to serve a compelling [S]tate interest and . . . narrowly drawn to achieve that end⊠It is neither. Although civility can and should be encouraged in political discourse, it cannot be required. In this country, we have never concluded that there is a compelling need to mandate that political discourse with those with whom we strongly disagree be courteous and respectful. Rather, we have concluded that political speech must remain “uninhibited, robust, and wide-open⊠This civility code is also drafted with an extraordinarily broad brush. It is certainly not narrowly tailored.
Law Office of Justin R. McCarthy 