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 screen stated, "The Board of Selectmen is taking a brief recess and will return shortly," but the video recording continued to show the board members for approximately thirteen seconds.

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.

The court analyzed the matter thus:

The text of art. 19 provides: "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." As written, this provision expressly envisions a politically active and engaged, even aggrieved and angry, populace.

The text of art. 19 thus encompasses the plaintiffs' complaint here. Barron assembled with others at the public comment session of the board meeting to request redress of the wrongs they claimed had been done to them and the grievances they claimed to have suffered by town official actions, including the town's noncompliance with the open meeting law….

The provision also has a distinct, identifiable history and a close connection to public participation in town government that is uniquely informative in this case. As more fully explained infra, 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.

Our interpretation of the text, history, and purpose of art. 19 is further informed by the words and actions of Samuel and John Adams, who not only theorized and commented upon the right, but were historic actors well versed in its application during the revolutionary period, particularly in the towns. Both Adams cousins emphasized in their correspondence and their actions the importance of the right to assemble. Samuel Adams wielded it to great effect in his attempt to "procure a Redress of Grievances" when the British governor of the colony attempted to exercise control over assemblies after the Boston Massacre.

More philosophically, John Adams explained that the right of assembly was a most important principle and institution of self-government, as it allowed "[every] Man, high and low … [to speak his senti]ments of public Affairs." Town inhabitants, he wrote, "are invested with … the right to assemble, whenever they are summoned by their selectmen, in their town halls, there to deliberate upon the public affairs of the town." "The consequences" of the right of assembly, in Adams's words, were that "the inhabitants … acquired … the habit of discussing, of deliberating, and of judging of public affairs," and thus, "it was in these assemblies of towns … that the sentiments of the people were formed … and their resolutions were taken from the beginning to the end of the disputes … with Great Britain." Alexis de Tocqueville made a similar point in Democracy in America: "Town-meetings are to liberty what primary schools are to science; they bring it within the people's reach, they teach men how to use and how to enjoy it." …

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 constitution," so long as the right is exercised in "an orderly and peaceable manner." … Further clarifying the type of limitations that ensure an "orderly and peaceable" assembly, our more recent case law has drawn on well-understood First Amendment principles and provided for reasonable time, place, and manner restrictions. As we stated:

"States may impose reasonable restrictions on the time, place, or manner of protected speech and assembly 'provided the restrictions "are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information."'"

{A manner regulation restricts the way in which a speaker communicates, i.e., the medium of communication or aspects of that medium like the size of signs or the volume of audio. We are not presented with disputed manner restrictions in the instant case.} …

"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. {The policy's prohibition on slander raises a different set of questions that we need not resolve here…. [T]his court [has] expressly carved out slander from protection under art. 19. However, at least under First Amendment principles, slander directed at public officials requires actual malice.}

Here, the town expressly provided a place for public comment: the meeting of the board. The town also set the time, after the conclusion of the regular meeting, as was the town's right. Barron presented her grievances at the established time and place. The town nonetheless then sought to control the content of the public comment, which directly implicates and restricts the exercise of the art. 19 right of the people to request "redress of the wrongs done them, and of the grievances they suffer." 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.

{This is not a case in which the public meeting was limited to a particular item or items. Although that would be content based, in order to function efficiently, towns must be able to hold public meetings limited to a particular subject without violating art. 19, so long as the town provides other opportunities to exercise this right, as it did in the instant case.} …

Assuming that the request for declaratory relief also includes a claim based on art. 16, as well as art. 19, we also conclude that art. 16 [the free speech provision] is violated….

Our cases interpreting art. 16 clearly support [the plaintiffs' arguments that the civility provision is unconstitutional]. They also do so without any need to survey, as the parties do, the contested Federal case law distinguishing limited and designated public forums and the different standards of review applicable to these forums under the First Amendment. As this court expressly stated in Walker v. Georgetown Hous. Auth. (1997): "We need not decide whether we would find the [United States] Supreme Court's public, nonpublic, and limited public forum classifications instructive in resolving free speech rights under our Declaration of Rights" in the instant case. Indeed, "we need not enter that fray because, under our Declaration of Rights, the applicable standard for content-based restrictions on political speech is clearly strict scrutiny."

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. As 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.

Finally, the policy's requirement that the speech directed at government officials "be respectful and courteous, [and] free of rude … remarks" appears to cross the line into viewpoint discrimination: allowing lavish praise but disallowing harsh criticism of government officials…. [A]rt. 16, like the First Amendment, certainly does not permit viewpoint discrimination….

{We note that personally insulting comments may rise to the level of fighting words, that is, "face-to-face personal insults that are so personally abusive that they are plainly likely to provoke a violent reaction and cause a breach of the peace," which are not protected speech. We have also explained that "the fighting words exception [to free speech] is 'an extremely narrow one.'" We further emphasize that elected officials are expected to be able to respond to insulting comments about their job performance without violence. Although not presented in the instant case, we recognize that fighting words from one public speaker may trigger a disturbance from another member of the public, which may require action by government officials.}

Congratulations to Ginny Sinkel Kremer, who represents the plaintiffs.