SPEAKERS AT public meetings can feel free to channel their inner revolutionaries now that the state’s highest court has ruled that Massachusetts law protects the right to be “rude, personal, and disrespectful to public figures.”
It’s part of our national heritage to be insolent when objecting to the workings of government, “as the colonists eventually were to the king and his representatives in Massachusetts,” the Supreme Judicial Court held in a 29-page unanimous decision this week.
The court ruling was prompted by a challenge to “civility restraints” adopted by the Southborough Board of Selectmen to keep discussion polite and used to silence a frustrated if discourteous resident in 2018.
This public participation policy, which required “that all remarks and dialog in public meetings must be respectful and courteous, free of rude, personal or slanderous remarks,” violated state civil rights protections, the court ruled.
Objection was already on the tip of her tongue when Southborough resident Louise Barron marched up to the mic at a December 2018 selectmen meeting grasping a sign that read “Stop Spending” on one side and “Stop Breaking Open Meeting Law” on the other.
The town “ha[d] been spending like drunken sailors,” she said, according to the SJC decision. Of the Southborough board, Barron said, their dozens of violations of the open meeting laws “is not the best you can do,” and “I know it’s not easy to be volunteers in town but breaking the law is breaking the law.”
Board member Daniel L. Kolenda interrupted, saying she was starting to “slander” the town officials. He announced the public comment period would close and the board would go into recess, at which point an outraged Barron said, “Look, you need to stop being a Hitler.”
Kolenda ordered the hearing ended and cameras turned off, the SJC said. He began shouting at Barron that she was “disgusting” and he would have her “escorted out” of the meeting if she did not leave. She left and later brought suit, appealing to the high court after a lower court dismissed her claims.
Barron’s language was permissible, Justice Scott Kafker wrote on behalf of the court, in part because it stems from a deeply held principle of public participation and assembly to demand that government redress grievances. Harkening back to the writings of John Adams and Samuel Adams, the court said Massachusetts’ civil rights protections remain true “to the spirit of the American Revolution.”
The SJC considered Article 16 and Article 19 of the Massachusetts Declaration of Rights. The latter grants the right “to assemble, speak in a peaceable manner, and petition her town leaders for redress.”
There was a clear political statement in Barron’s remarks, the court noted, with the Adolf Hitler comparison suggesting “dictatorial” behavior. “Although a comparison to Hitler is certainly rude and insulting, it is still speech protected by art. 16,” Kafker wrote.
The free-market think tank Pioneer Institute and the American Civil Liberties Union filed “friend of the court” briefs in the case supporting Barron, and both celebrated the ruling. Carol Rose, executive director of the ACLU of Massachusetts, said freedom to criticize public officials directly “goes to the heart of what separates us from repressive regimes. This ruling is a crucial—and resounding—recognition of these values and legal principles at a time when free speech rights are threatened nationwide.”
There would, naturally, be some sort of outer limit for allowable speech. “Fighting words” which would be likely to provoke violence, are not protected speech, Kafker wrote, but “we further emphasize that elected officials are expected to be able to respond to insulting comments about their job performance without violence.”
It is perfectly reasonable, the court said, to have restrictions on when public testimony can occur or policies to remove a person who has become disruptive to others as long as the viewpoint of their speech is not being punished.
Other local government bodies may want to take a close look at their meeting rules. While it might sound like a supportive policy to insist, as Southborough did, that remarks be courteous, that kind of restraint is now clearly unconstitutional in Massachusetts.