By Paul Kominers and Mina Makarious
Revolutionary politics were less than orderly. In 1770, a mob surrounded, yelled at, and pelted British soldiers in Boston. In 1773, tea was dumped in Boston Harbor. British officials and loyalists were verbally abused, opposed, and hung in effigy. Indeed, the right to assemble, as John and Samuel Adams “understood it, included the power to ‘carry their votes and resolutions into execution, at the risque of their lives and property’– whether through marches, effigies, boycotts, committees of correspondence, or throwing tea into the harbor.” Nikolas Bowie, The Constitutional Right of Self-Government, 130 Yale L.J. 1652, 1729 (2021) (quoting Proceedings of the Town of Boston (Nov. 29-30, 1773), in Tea Leaves 320, 330 (Francis S. Drake, ed., Singing Tree Press 1970) (1884)). American courts, however, commonly ignore this history in favor of the era’s loftier aspirations and more genteel aspects.
The Supreme Judicial Court (“SJC”) recently enshrined the rough and tumble aspects of the Founding era through its recent decision in Barron v. Kolenda, 491 Mass. 408 (2023). Drawing on sources describing the “spirit and practice of self-government” dating to Revolutionary times, Barron held the right to assembly under the Massachusetts Declaration of Rights protects “discourteous, rude, disrespectful, or personal speech about government officials and governmental actions.” Id. at 416–19.
Barron’s Background
The Town of Southborough’s Select Board, like many others, hosts “public comment” sessions “when town residents can bring matters before the [B]oard that are not on the official agenda.” Id. at 411 & n.5. The Select Board held these sessions under a policy that sought to mandate civility. Id. at 411 n.5. The policy required that all speakers, including Select Board members, “act in a professional and courteous manner” and that “[a]ll remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal or slanderous remarks.” Id. It also declared that “[i]nappropriate language and/or shouting will not be tolerated.” Id.
During one “public comment” session at a December 2018 Select Board meeting, a member of the public chastised the Select Board for a series of Open Meeting Law violations. Id. at 411–13. The Select Board’s Chair interrupted to say that if the commenter was going to “slander” town officials, the Board would end public comment and recess. Id. at 413. As the Chair said that, the commenter responded “Look, you need to stop being a Hitler. . . . You’re a Hitler. I can say what I want.” Id. The Chair then took the meeting into recess and the broadcast of the meeting stopped. Id. A different video recording of the meeting showed the Chair yelling at the commenter and threatening to have her escorted out. Id. The commenter then left. Id.
The Lawsuit
The commenter, her husband, and another Southborough resident sued. Id. at 413–14. By the time the case reached the SJC, the plaintiffs were pressing two claims: they alleged that the civility policy violated Article 19 and Article 16 of the Massachusetts Declaration of Rights, and that the Chair had violated the Massachusetts Civil Rights Act (“MCRA”), Mass. Gen. L. c. 12, §§ 11H–11I. Id. at 414.
Article 19
Because Article 19 “has not been the focus of much attention in recent case law,” the SJC reviewed the “text, history, and purpose” of Article 19 to determine how to apply it. Id. at 414, 416, 418.
In full, 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.
Mass. Const. pt. 1, art. XIX. The SJC stated that this language “expressly envisions a politically active and engaged, even aggrieved and angry, populace.” Barron, 491 Mass. at 415.
The SJC also cited the writings and contemporary experiences of John and Samuel Adams, who drafted Article 19. Id. at 414–17. From those sources, and with a nod to 1830s observer Alexis de Tocqueville, the SJC found Article 19 envisioned a “critical role [for] the right of assembly in the towns in cultivating the spirit and practice of self-government,” and was meant to protect “fierce opposition to governmental authority . . . even if it was rude, personal, and disrespectful to public figures, as the colonists eventually were to the king and his representatives in Massachusetts.” Id. at 416–18.
Thus, although petition and assembly must be “peaceable and orderly,” the SJC held that they need not be “respectful and courteous.” Id. at 418. Instead, “peaceable and orderly” envisions “reasonable time, place, and manner restrictions,” much like those in First Amendment jurisprudence. Id.
Applying these principles to the case at hand, the SJC concluded that “the town’s civility code [wa]s contradicted by the letter and purpose of art. 19.” Id. at 419. And, where the commenter “presented her grievances at the [town’s] established time and place,” Article 19 forbade the Town from preventing the commenter’s “discourteous, rude, disrespectful, or personal speech about government officials and governmental actions.” Id.
Article 16
The SJC then addressed Article 16. Id. at 420. In relevant part, Article 16 reads: “The right of free speech shall not be abridged.” Mass. Const., pt. 2, art. XVI. Under Article 16, any content-based restriction on political speech receives strict scrutiny regardless of the forum in which the restriction applies. Barron, 491 Mass. at 420 (quoting Commonwealth v. Lucas, 472 Mass. 387, 397 (2015)). The SJC concluded that the civility code restricted political speech, “as it regulates speech in a public comment session of the board,” and was content-based, “as it requires [a court] to examine what was said.” Id. at 421.
The SJC concluded that the civility code failed strict scrutiny, which requires government policy be “necessary to serve a compelling state interest and narrowly drawn to achieve that end.” Id. (quoting Lucas, 472 Mass. at 398) (cleaned up). On the first prong, the SJC held that there is no “compelling need to mandate that political discourse . . . be courteous and respectful.” Id. On the latter, the SJC decided that because the civility code was “extraordinarily broad,” it was “certainly not narrowly tailored.” Id.
Lastly, the SJC observed a viewpoint-discrimination problem. Id. The Select Board’s policy required “speech directed at government officials ‘be respectful and courteous, [and] free of rude remarks,’” which “appears to . . . allow[] lavish praise but disallow[] harsh criticism of government officials.” Id. This, according to the SJC, was “the essence of viewpoint discrimination,” and another constitutional problem with the policy. Id. at 422 (quoting Matal v. Tam, 582 U.S. 218, 249 (2017)).
The MCRA and Qualified Immunity
The MCRA, proscribes interference with constitutional rights via “threats, intimidation or coercion.” In a brief analysis, the SJC held that the commenter could potentially prove an MCRA violation at trial. Id. at 423-25. She was exercising her Article 16 and 19 rights, and her allegations that the Chair instructed her to stop speaking, yelled at her, and threatened to have her removed could constitute intimidation or coercion. Id. at 423–24.
The SJC further held that the Chair could not claim qualified immunity. Id. at 424. A government official may not claim qualified immunity for violating a “clearly established” right, one whose contours are “sufficiently definite so that a reasonable official would appreciate that the conduct in question was unlawful.” Id. (quoting LaChance v. Comm’r of Corr., 463 Mass. 767, 777 (2012)). The Court found that the plaintiff’s rights were clearly established: the Article 19 right to “‘full and free discussion’ in town meetings” by a “long and distinguished history in Massachusetts,” and the Article 16 right to be free of content-based restrictions on political speech by case law. Id. at 425 (quoting Fuller v. Mayor of Medford, 224 Mass. 176, 178 (1916))).
Thus, “[a]t a public comment session[,] . . . a resident of the town thus clearly has the right to accurately complain about violations of law committed by town officials and object to other town actions . . . and to express her view vehemently, critically, and personally to the government officials involved.” Id. In turn, the Chair should have known that responding by “accusing her of slandering the board, screaming at her, and threatening her physical removal . . . is unlawful.” Id.
Implications
Speech Restrictions: The Permissible, the Debatable, and the Doubtful
Throughout its opinion, the SJC took pains to make clear that future public comment sessions will not be free-for-alls. Id. at 410, 419 & n.10, 422–23. It stated repeatedly that reasonable time, place, and manner restrictions, such as “designating when public comments 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,” are acceptable. Id. at 410.
The opinion was more mixed on whether local governments may restrict public discussion to certain topics. See id. at 419 n.10, 420 n.12. The SJC recognized that “in order to function efficiently, towns must be able to hold public meetings limited to a particular subject without violating art. 19” or 16, but also that towns that do so must “provide[] other opportunities to exercise” petition and assembly rights, as the Southborough Select Board did by offering a “public comment” session. Id. at 419 n.10. “Germaneness” restrictions may generate future litigation.[1]
Similarly, the SJC gave no substantive guidance on “manner” restrictions, such as those limiting “the size of signs or the volume of audio.” Id. at 410, 418–19 & n.9. It acknowledged that reasonable manner regulations are compatible with “orderly and peaceable” petition and assembly but did not elaborate on which restrictions are reasonable. Id. at 410.
Finally, the SJC frowned on, but did not proscribe, restrictions on slander and fighting words. It declined to review the civility policy’s restrictions on slander, but pointed out that “slander directed at public officials requires actual malice.” Id. at 418 n.8. Later, it recognized that fighting words are not protected speech, but reiterated its prior holding that the exemption is “extremely narrow,” and “emphasize[d] that elected officials” should “respond to insulting comments about their job performance without violence.” Id. at 423 n.15.
Unresolved Issues
Other difficult legal questions about speech, assembly, and petition remain.
First, although the SJC held that towns must provide some opportunities for citizens to exercise rights of petition and assembly, it did not explain whether opportunities other than “public comment” sessions would suffice, how much is enough, or which municipal bodies are required to offer those opportunities. Id. at 419 n.10, 420 n.12. In 1980, when a group of plaintiffs argued that “some deliberation is constitutionally required when one or more persons wish to speak on a warrant article” at Town Meeting, the SJC rejected their argument in part because of “serious questions as to how much discussion or debate would be necessary to meet the asserted constitutional standard . . . .” MacKeen v. Town of Canton, 379 Mass. 514, 521 (1980). Barron may inspire similar questions.
Second, the SJC did not address whether government entities other than municipalities have the same affirmative obligation. See Barron, 419 Mass. at 419 n.10, 420 n.12. Barron draws not only on New England’s storied tradition of local self-governance, but also on Article 19’s roots in Revolutionary-era politics. Id. at 416–17. Revolutionary-era Massachusetts citizens certainly sought redress of grievances directly from the colonial government, and in a manner as vehement as anything seen in town politics.
Third, the question of when a town official may seek qualified immunity for restricting public comment may prove fraught. The denial of qualified immunity in Barron rests on three distinct acts by the Chair: “accusing [the plaintiff] of slandering the board, screaming at her, and threatening her physical removal . . . .” Id. at 425. But the decision does not explain whether any one of those three acts, taken independently, would have violated the plaintiff’s clearly-established rights. See id.
This question is important because the first two of those three acts were in part speech, and elected officials have their own free-speech rights. See, e.g., Houston Cmty. Coll. Sys. v. Wilson, 142 S. Ct. 1253, 1261 (2022) (addressing elected officials’ free speech rights to respond to criticism and speak on policy); Sahli v. Bull HN Info. Sys., Inc., 437 Mass. 696, 701 (2002) (describing mayor’s First Amendment right to defend city government from allegations against it). This part of Barron may be confined to its facts. The Chair’s “accusing” the commenter and “screaming at her” were part of the Chair’s efforts to prevent her from speaking. 491 Mass. at 425. Had the Chair merely rebutted her after she finished, Barron’s qualified-immunity analysis might have come out differently. The SJC’s focus on the plaintiff’s free speech rights over the Chair’s is also consistent with its treatment of slander and fighting words: understandably, it demands more from public officials than the public. See id. at 418 n.8, 423 n.15.
That brings up a final question: how Barron applies when one official speaks uncivilly to another. In Barron, the line between citizen and government was clear. But that line is often blurred by the same “spirit and practice of self-government” that Barron relies on and protects. Id. at 417. If one member of a public body is unusually sharp with another, that could be intimidation proscribed by the MCRA. Or it could be protected expression. The problem becomes even harder at Town Meeting, where every participant is a legislator. See Curnin v. Town of Egremont, 510 F.3d 24, 26 (1st Cir. 2007).
Final Takeaways
Some of Barron’s implications for public bodies, officials chairing public meetings, and other local officials are straightforward:
- Public bodies should rely on the kinds of rules that Barron approves: time limits, rules against one speaker disrupting another, and requirements that comments be germane.
- Officials chairing meetings should be careful to enforce those rules with an even temper and equally to all.
- All local officials should be ready to grin and bear “discourteous, rude, disrespectful, or personal speech.” Barron, 419 Mass. at 419.
For many, this last point will not be news. Still, it is important to remember that Barron is about what the government can and cannot proscribe. Public bodies may still promote civility without requiring it. Even in Barron, the Court recognized that “civility, of course, is to be encouraged.” Id. at 410.
Mina S. Makarious is a partner at Anderson & Kreiger LLP in Boston. He is Town Counsel to the Towns of Concord and Lexington, and advises these and other municipalities and other public agencies on constitutional, governance, and other issues.
Paul M. Kominers is an associate at Anderson & Kreiger LLP. He represents public and private clients in litigation, matters involving constitutional and administrative law, and other matters.
[1] A case just decided in Nantucket Superior Court, Barros v. Nantucket Select Board, No. 2175-cv-00004 (Mass. Super. Ct. July 5, 2023) presented that question, as did Spaulding v. Town of Natick School Committee, MICV2018-01115 (Mass. Super. Ct. Nov. 21, 2018) (Kirpilani, J.) a few years ago. We discussed Spaulding in “Spaulding v. Town of Natick School Committee: Allowing Free Speech while Accomplishing Municipal Work,” 63.2 Bos. B.J., , at 9 (Spring 2019), available at https://bostonbar.org/journal/spaulding-v-town-of-natick-school-committee-allowing-free-speech-while-accomplishing-municipal-work/. In that case, the court decided that because “[t]he School Committee exercised no direct control over personnel other than the superintendent, [it] could properly bar personal complaints against personnel other than the superintendent from Public Speak.” Id. at 10.
