Let Massholes Be Massholes, Says Bay State's High Court
Criticism of public officials doesn't have to be polite, the Massachusetts Supreme Judicial Court confirmed.
Massachusetts residents have a reputation for an abrasive style that has earned them the nickname "Massholes" among their neighbors. They can be abrasive when traveling, they can be abrasive with one another and, courtesy of a free speech-affirming decision issued this week by the state's Supreme Judicial Court, they're legally protected when being abrasive in all their Masshole glory with government officials. It's a win for the value of speech rights, even when politicians don't like how they're exercised.
"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 [articles 16 and 19] of the Massachusetts Declaration of Rights, which provide for a robust protection of public criticism of governmental action and officials," the Supreme Judicial Court ruled March 7 in Barron v. Kolenda.
The case was brought by plaintiffs including Louis Barron, who was cut off and threatened with physical expulsion from a Southborough board of selectmen meeting in 2018. She had vigorously spoken up—comparing an official to Hitler at one point—to object to open meeting law violations and other excesses and ruffled the feathers of Southborough's elected government. They invoked a public comment policy requiring "civility" at such meetings to muzzle their critic.
Barron and two other plaintiffs sued to have the policy declared unconstitutional. They prevailed in a decision that generously cites the work of John and Samuel Adams. Drawing on the often-vicious disputes of the revolutionary period, the decision has implications for contemporary government officials who frequently object to the strong language in which they're criticized. In the lawsuit, Barron initially cited both federal and state constitutional objections to the civility code, before settling on Massachusetts's own protections. That had her drawing on the efforts of the nation's founders.
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America's Founders Weren't Polite
"As the text of art. 19, which was drafted by John Adams with some assistance from his cousin Samuel Adams, along with its illuminating constitutional history, is directly applicable and dispositive of the claims here, we focus on art. 19 first," Justice Scott L. Kafker wrote for the court. "As written, this provision expressly envisions a politically active and engaged, even aggrieved and angry, populace."
Article 19 reads: "The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good; give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer."
Officials in Southborough and elsewhere took "orderly and peaceable" as license to enforce good manners on angry constituents. But that's not what the article means, the court emphasized.
"The text, history, and case law surrounding art. 19 provide for the 'fullest and freest' discussion of public matters, including protection of fierce criticism of governmental action and actors, so long as that criticism is done in a peaceable and orderly manner and is consistent with time, place, and manner restrictions… '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."
John and Samuel Adams were known for expressing strong opinions and left a record of their sentiments on the meaning of article 19. Their intention wasn't to permit officials to regulate what people said, but to let them restrain mayhem while they said it. That means Southborough's civility code went too far.
Critics Don't Have to Be Nice to Officials
"The content sought to be prohibited -– 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."
Because it sought to regulate the content of speech, the case also implicated article 16, Massachusetts's counterpart to the First Amendment's speech protections.
"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 said," added the court, which concluded that the code impermissibly regulated speech and was neither necessary nor narrowly drawn.
"Speech that politely praises public officials or their actions is allowed by the policy, but speech that rudely or disrespectfully criticizes public officials or their actions is not. This constitutes viewpoint discrimination."
The court also found that then-Selectman Daniel J. Kolenda, whom Barron compared to Hitler and who silenced her and threatened expulsion, is not entitled to qualified immunity for his violations of her rights. Said the court: "The contours of the rights are sufficiently clear, and a reasonable public official would understand that his response to the exercise of those rights was unlawful." That makes him potentially liable under the Massachusetts Civil Rights Act.
Implications for Our Rude Politics
The Barron decision is based on interpretations of provisions in Massachusetts's constitution but has clear implications for the current period when, once again, there is "nothing respectful or courteous" about a lot of political discourse. The era of pussy hats and "Let's Go Brandon" would be recognizable to the Adams cousins for its tone. Slingers themselves of invective "that was rude and personal," John and Samuel Adams knew that disputes over governance, rights, and violations aren't for the faint of heart.
Too many pundits and politicians are concerned with the language that people use to criticize political opponents, forgetting that "discourteous, rude, disrespectful, or personal speech about government officials and governmental actions" is evidence that much is at stake and that people care deeply. It's good to be reminded that exchanges were also harsh at the time this country was founded and for similar reasons; what was happening mattered to people.
That doesn't mean we should tolerate violence. John and Samuel Adams wanted political debates to be "peaceable and orderly," but that's not the same as nice. When we resent politicians and despise policies, we should all feel free to express ourselves and, if needed, to tap into our inner Massholes.