Massachusetts high court affirms the right to be rude in a public assembly

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A traditional New England town meeting turned into a debate over Free Speech after a heated exchange between a resident and an elected town board member. Characterizing the resident’s comments as “abusive verbal assault,” members of the town board decided to cut short public commentary, leading the resident to sue for violation of her speech rights.

Key Players

Louise Barron has been a resident of Southborough since 1986 and is a longtime participant in local government. 

Daniel L. Kolenda has been a member of the Southborough Select Board since returning from military service in Iraq in 2009. The Board, which consists of five elected members, is responsible for preparing town meeting agendas, making appointments to town boards and offices, employing administrative staff and town counsel, and granting licenses and permits. As stated in his official campaign materials, two of Kolenda’s goals are to protect the democratic process and promote efficient town government.

Further Details

Southborough, which is located between Boston and Worcester, MA, leans moderately liberal. 

On Dec. 4, 2018, Barron attended a Select Board meeting where Kolenda was acting as chair. Approximately two and a half hours into the meeting, the floor was opened to public comment. Before comments began, Kolenda explained his expectations that the public remain “civil,” stating, “remarks must be respectful and courteous, free of rude, personal, or slanderous remarks.”

Barron approached the podium and began making several critiques of the Board. Holding a sign that said “STOP SPENDING,” she criticized the Board’s proposed budget increases, noting that the Town of Southborough has a history of misappropriating funds and comparing their actions to that of “drunken sailors.”

Another of Barron’s contentions was that the Board violated the state’s Open Meeting Law several times by failing to post their meeting minutes, an infringement that the Massachusetts attorney general’s office has confirmed. Barron also held a sign that said “STOP BREAKING OPEN MEETING LAW.”

In response to her comments, Kolenda accused Barron of slandering town officials. Barron interjected, saying, “Look, you need to stop being a Hitler. You’re a Hitler. I can say what I want.”

Barron’s comparison of Kolenda to Hitler prompted him to end the public comments session and conclude the town meeting. After turning off his microphone, Kolenda turned to Barron and repeatedly yelled “You’re disgusting,” as can be seen in public video footage. Kolenda then told Barron he would have her “escorted out” of the meeting if she did not leave. Barron complied with Kolenda’s threat and exited the meeting.

On Mar. 30, 2020, Barron, her husband Jack, and another town resident named Arthur St. Andre filed a lawsuit against Kolenda, his fellow Board members, and the Town of Southborough. The complaint cited alleged violations of the Massachusetts Declaration of Rights, the First Amendment to the United States Constitution, and the Massachusetts Open Meeting Law.

Article 19 of the Massachusetts Declaration of Rights states that all state residents have the 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.”

Barron charged Kolenda with “silencing her, verbally and physically intimidating her, and threatening to have her forcibly removed from the Board’s meeting,” asserting that he “intended to suppress the particular content of” her speech.

The complaint states that Barron has “suffered damages, harm, humiliation, and distress” due to Kolenda’s chilling of her Free Speech. The suit also accused the Board of failing to include Kolenda’s abusive comments toward Barron in the official meeting minutes and turning off the audio and video feed of the meeting, interfering with the right to record public sessions.

On Mar. 8, 2021, the Worcester County Superior Court ruled in favor of the defendants and dismissed the Barrons’ lawsuit. Judge Shannon Frison declared that the Board’s prohibition of “rude, personal, or slanderous remarks” was constitutional, so long as it was used to maintain order or prevent disruptions. However, Frison added, “The Board may not prohibit speech under paragraph 3 of the Board’s ‘Public Participation at Public Meetings’ policy based solely on the viewpoint or message of a speaker or the Board’s desire to avoid criticism.”

The Barrons appealed their case to the Massachusetts Supreme Judicial Court. The court received four amicus briefs, two in opposition to the Superior Court’s ruling, one in favor of the ruling, and one asking the court for clarity. 

The American Civil Liberties Union (ACLU) of Massachusetts, for example, supported the Barrons, writing, “The freedom to express criticism to and about public officials is foundational to our form of government […] The Southborough ‘Public Participation’ Policy is facially unconstitutional […] It allows public servants to censor criticism from those to whom they are accountable merely because they do not want to hear it. It was used in this case to silence a recognized speaker solely because she criticized the Select Board and its Chair. The Policy should not be allowed to stand.”

The Massachusetts Association of School Committees, on the other hand, writing in favor of the town, supported the Superior Court’s decision. The organization argued that the Southborough civil law is a necessary way to maintain “orderly, efficient and productive” meetings. 

Outcome

Mass. Supreme Judicial Court overturns Superior Court decision

On Mar. 7, 2023, the Massachusetts Supreme Judicial Court, in an opinion written by Associate Justice Scott L. Kafker, unanimously overturned the lower court’s decision to dismiss the Barrons’ lawsuit and declared Southborough’s public comment policy unconstitutional, WBUR reported. 

The court held that civility cannot be required during the public comment session of a government meeting. It specifically emphasized the intent of the authors of the Massachusetts Declaration of Rights, John and Samuel Adams. The Adamses, the court highlighted, wrote the Declaration “out of fierce opposition to governmental authority,” intending it to protect even “rude, personal, and disrespectful” conduct.

Article 19 states that it is within the town’s power to impose time limits on public commentary and use measures to maintain peace and order, but it does not require that comments be respectful.

Setting a precedent for state assembly laws

This case may have significant implications for interpreting other state assembly clauses, a majority of which are modeled after the long-standing ones in Massachusetts. State assembly laws are separate from the right to Free Speech in almost every state, and they have yet to be dissected by courts to determine their proper scope. 

The Barron decision may come to be used as a precedent in future cases that challenge violations of speech in public assembly.