Town Public Comment Policy Requiring Remarks to Be “Respectful and Courteous” Violates Massachusetts Constitution
From today’s Massachusetts high court opinion in Barron v. Kolenda, written by Justice Scott Kafker (and dealing with a claim brought under the state constitution’s free expression provisions, rather than under the First Amendment):
[W]e conclude that the public comment policy of the town of Southborough (town) violates rights protected by art. 19 [freedom of assembly] and, to the extent it is argued, art. 16 [freedom of speech]. Under both arts. 19 and 16, such civility restraints on the content of speech at a public comment session in a public meeting are forbidden. Although civility, of course, is to be encouraged, it cannot be required regarding the content of what may be said in a public comment session of a governmental meeting without violating both provisions of the Massachusetts Declaration of Rights, which provide for a robust protection of public criticism of governmental action and officials.
What can be required is that the public comment session be conducted in an “orderly and peaceable” manner, including designating when public comment shall be allowed in the governmental meeting, the time limits for each person speaking, and rules preventing speakers from disrupting others, and removing those speakers if they do. We have concluded that such time, place, and manner restrictions do not violate either the right to assembly under art. 19 or the right to free speech under art. 16….
The policy provided, among other things, “All remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal or slanderous remarks”; the event that triggered the lawsuit was this:
Barron … approached the podium holding a sign that stated “Stop Spending” on one side and “Stop Breaking Open Meeting Law” on the other. Barron began her comments by critiquing the proposed budget increases, opining that the town “ha[d] been spending like drunken sailors” and was “in trouble.” She argued for a moratorium on hiring and inquired about the benefits of hiring a town manager as opposed to a town administrator. Kolenda responded that questions would not be answered as the board was “not going to have a back and forth discussion during public comment.” Barron began moving to her next topic of concern but another board member responded to her question, indicating that the issue of a town manager would be considered by a committee and “ha[d] nothing to do with [the] upcoming town meeting.“
After the board member’s response, Barron began to critique the board for its open meeting law violations. Barron and Kolenda then had the following exchange:
Barron: “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. And … when you say that … this is the best we could do, I know it’s not easy to be volunteers in town but breaking the law is breaking the law and –”
Kolenda: “So ma’am if you want to slander town officials who are doing their very best –”
Barron: “I’m not slandering.”
Kolenda: “– then then we’re gonna go ahead and stop the public comment session now and go into recess.”
When Kolenda said the word “now,” Barron interjected and, simultaneously to Kolenda saying, “go into recess,” Barron stated, “Look, you need to stop being a Hitler.” Barron continued: “You’re a Hitler. I can say what I want.” After Barron’s second reference to Hitler, Kolenda said: “Alright, we are moving into recess. Thank you.“
The audio recording on the public broadcast then stopped. A message on the
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