The Middlesex Superior Court’s November 2018 decision on cross-motions for partial summary judgment in Spaulding v. Town of Natick School Committee, MICV2018-01115 (Nov. 21, 2018) (Kirpalani, J.), is a reminder that all constitutional rights (like all politics) are local. The case arose from a series of School Committee meetings, the type of quintessential local government activity repeated daily in hundreds of cities and towns throughout the Commonwealth. Notwithstanding this seemingly banal background, the issues in the case are at the heart of the First Amendment’s powers and its limits — namely, how strictly a governmental entity can regulate speech in a public forum it has itself created. The answer, according to Spaulding, is that a local government body can control speech just enough to allow it to focus on the tasks at hand, but no more.
In Spaulding, two mothers of former Natick Public School students had attempted to speak during “Public Speak” portions of Natick School Committee meetings. The School Committee reserved the Public Speak portion of each meeting to permit members of the public to address the School Committee without response from its members. The Committee had a participation policy for this portion of the meetings that, among other things, (1) limited each speaker to three minutes of time; (2) advised speakers that “[i]mproper conduct or remarks will not be allowed. Defamatory or abusive remarks are always out of order,” and (3) instructed speakers that they “may offer such objective criticisms of the school operations and programs as concern them, but in public session the [School] Committee will not hear personal complaints of school personnel nor against any member of the school community.”
The School Committee applied this policy to restrict or prevent the two mothers from speaking on at least three occasions. The ACLU, on behalf of Ms. Spaulding and Ms. Sutter, challenged the School Committee’s participation policy facially, and as applied to the two mothers. The plaintiffs argued that the policy was not content-neutral and failed to set definite standards on what speech was allowed. The plaintiffs sought partial summary judgment declaring portions of the participation policy unconstitutional.
The court first assessed whether Public Speak was a traditional, designated, or limited public forum, quickly concluding that the Public Speak is a “designated” public forum, or a forum “which the government has opened for use by the public as a place to assemble or debate.” In designated public fora, the government may impose reasonable time, place, and manner restrictions on the exercise of free speech rights. However, any content-based restrictions must pass strict scrutiny, meaning they must be narrowly tailored to advance compelling government interests.
The court accepted that the School Committee had a compelling interest in conducting its business in an orderly and efficient fashion and that it therefore had the right to manage public participation at its meetings so long as it did so using rules narrowly tailored to advance that end. To assess whether the School Committee’s rule barring “personal complaints of school personnel,” or complaints “against any member of the school community” was narrowly-tailored, the court first reviewed the School Committee’s jurisdiction. It determined that the School Committee had jurisdiction over their district’s superintendent, budget, and overall goals and policies. The School Committee exercised no direct control over personnel other than the superintendent, and therefore could properly bar personal complaints against personnel other than the superintendent from Public Speak. Attendees could, however, voice personal complaints about the superintendent, and the participation rules were unconstitutional insofar as they barred such complaints.
The court also took issue with the requirement that the comments be “objective.” It held (after reviewing definitions of “objective” and “subjective”) that while a requirement that comments be based on “externally verifiable phenomena” might be proper, the School Committee acted improperly in prohibiting subjective comments rooted in individuals’ concerns.
Finally, the court held that the portion of the policy barring those making otherwise germane and appropriate comments from identifying the parties involved was unconstitutional. The public’s free speech rights, the court held, superseded any interest the School Committee had in protecting community members’ privacy.
The court then turned to the section of the Participation Policy prohibiting “defamatory” or “improper and abusive” remarks, holding that the policy banning “defamatory” remarks was constitutional only to the extent that it barred speech that had actually been adjudicated defamatory. Otherwise, the policy would be an unconstitutional prior restraint on speech concerning public officials and public business. The court read a similar limit into the policy on “improper and abusive” remarks, holding it was only constitutional to the extent that it barred threats, fighting words, or obscene content – all types of speech at the outer limits of First Amendment protection.
The court then ruled on the plaintiffs’ as-applied challenges to the plaintiffs’ treatment at the January 8, February 5, and March 12 meetings.
On January 8, Spaulding had introduced herself as “the mother of a child that was mercilessly bullied into suicide here in Natick” before School Committee members cut her off. After hearing just her first sentence, the court ruled, School Committee members could not have known whether Spaulding’s comment would pertain to business within their jurisdiction. If particular students or teachers had bullied her child, then she had no right to say so at Public Speak, but if the bullying had somehow been committed by the superintendent, school operations, or school policies, then she did.
On February 5, Sutter began to speak about the “retaliation and retribution” she and her family had received “at the hands of the Natick Public Schools.” School Committee members quickly reprimanded her, insisted that she stop speaking, and then suspended the meeting. As with the analysis of the January 8 meeting, the court held that the School Committee cut Sutter off before she could make clear whether her complaints were about aspects of the school system within or outside of the School Committee’s jurisdiction. The court also noted that the Participation Policy did not bar discussion of Public Speak itself.
On March 12, Sutter again began to speak about “retaliation and retribution.” The School Committee reminded her that, under the participation policy, she could not discuss individuals or make defamatory statements. The court held that, again, Sutter had the right to discuss the superintendent or discuss operations or policies within the School Committee’s jurisdiction, whether her comments were positive or not.
What the Court’s Decision Means for Cities and Towns
Spaulding was settled shortly after the trial court’s decision, so there will be no appellate review. Nonetheless, the case holds some important lessons for local government entities.
First, Spaulding’s conclusion that Public Speak was a “designated” public forum implies that if the Natick School Committee had not included the Public Speak portion of the meeting in the first place, it would not have created a public forum in which it had to hear the plaintiffs. Government entities cannot choose whether traditional public fora like sidewalks and parks will be open to speech, but they can decide whether to designate and maintain non-traditional public fora.
Second, the fact that the plaintiffs sought to speak during the “Public Speak” portions of the school committee’s meetings, rather than during the School Committee’s conduct of its scheduled business, is also important because the Massachusetts Open Meeting Law requires public bodies to set agendas for their meetings and adhere to the topics on the agenda. G.L. c. 30A, § 20(b). The plaintiffs did not appear to challenge, for instance, the School Committee chair’s asking certain audience members to restate their comments at a later part of the meeting when particular issues were due to be taken up. Further, as noted in the case, the Open Meeting Law also gives the chair of a local public body the authority to determine whether to allow public input at all during the conduct of its business. Id., § 20(g). Thus, absent an open-ended portion of an agenda such as the “Public Speak” portion of the Natick School Committee meetings, public bodies may have significantly more power to ask members of the public to focus their comments on the particular issue at hand. In other words, public bodies certainly may do their jobs, and may focus on doing so.
Third, notwithstanding these first two lessons, refusing to create opportunities for public dialogue is likely a shortsighted approach to addressing First Amendment issues. No local government entity can completely immunize itself from criticism, and neither should it be able to. Van Liew v. Stansfield, 474 Mass. 31, 38–39 (2016) (remarks about a local official are “at the core of the speech that the First Amendment to the United States Constitution protects”). Providing opportunities for public input, as uncomfortable as it may be for elected or appointed officials to hear, promotes good governance and an opportunity for those officials to engage on important issues. Thus, local governments should think very hard before simply closing off all opportunities for public input at public meetings.
Fourth, the court made clear that public bodies could limit public comments to issues within the public body’s jurisdiction. However, where that jurisdiction begins and ends can be difficult to determine. In Spaulding, the court agreed that if the plaintiffs had in fact begun to discuss particular personnel (other than the superintendent) or students, the School Committee could end those comments because the Committee’s role was limited to policy issues. Local government officials therefore need not fear that they will entertain comments that are outside of their roles or face pressure to assert jurisdiction over issues on which they legally have no say. On the other hand, one could argue that the School Committee’s jurisdiction was broad enough to include investigating those incidents to determine whether they warranted policy changes. Further, while not at issue in Spaulding, one can easily imagine a situation in which a local board or committee had previously asserted that it did have broad jurisdiction to address a particular issue, which could make it difficult to exclude speech on that issue later.
Finally, once the government body permits the public to speak on a topic within the government body’s jurisdiction, and the speaker does so at the appropriate time, the government body cannot silence the speaker based on what they say on that topic. This is at the core of First Amendment jurisprudence. The government cannot tell the public what to say; rather, it can only place reasonable restrictions on where and when to say it. The School Committee’s key error in Spaulding, it appears, was not in opening the School Committee meetings for speech, or in requiring speakers to stay on topic. Rather, the mistake was in prematurely cutting off speakers they believed would discuss topics the public officials deemed inappropriate. Although it can be difficult to do so, public officials should remain open to letting members of the public make their complete comments and, only if necessary, redirect speakers to stay on topic. Further, fears that what a member of the public might say could create liability for public officials (e.g., if members of the public discuss private matters) can be overstated: given the speech courts require be permitted, it is unlikely that a court could construe a public officials’ mere listening to speech as endorsing a particular viewpoint.
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 on constitutional, governance, and other issues. He is the Co-Chair of the BBA’s Environmental Section.
Paul M. Kominers is an associate at Anderson & Kreiger LLP. He advises municipal and other governmental clients on litigation, constitutional, governance, and other issues.