In March, the Supreme Judicial Court of Massachusetts struck down as unconstitutional the town of Southborough’s Civility Code, which required that comments made by members of the public to town boards and committees be “respectful and courteous.” Here’s what happened.

During the public comment time of a December 2018 selectboard’s meeting, Louise Barron, a longtime participant in local government, claimed correctly that the selectmen had repeatedly violated the Open Meeting Law. Daniel Kolenda, the chair, tried to silence her, claiming that she was slandering him. Barron’s rejoinder was to twice call Kolenda a “Hitler.” Kolenda responded by threatening to have Barron escorted from the meeting, so Barron left. Litigation ensued.

In Barron v. Kolenda the Court ruled unanimously (7-0) that while Barron‘s accusation indeed was a sharp barb, her speech was protected by both article 19 of the state constitution, which enshrines the right to assemble and petition the government, and article 16, the free speech guarantee. Kolenda was wrong, the Court ruled, to have cut off Barron’s speech by declaring a recess and also was wrong to have threatened her with removal. (By the way, Kolenda, after recessing the meeting, also repeatedly yelled at Barron, “You’re disgusting.”)

The Court ruled that a presiding officer, of course, can insist that a board, committee or council meeting be “peaceful and orderly.” In fact, those words are part of the constitutional guarantee. But the words “peaceful and orderly,” the Court made clear, are not synonymous with “respectful and courteous.”

For clear reasons. A primary purpose of the rights of free speech and assembly is to empower people to criticize government officials and hold them accountable. Indeed, article 19, the decision says, “expressly envisions a politically active and engaged, even aggrieved and angry, populace.”

That constitutional provision, written by John Adams with assistance from his cousin, Samuel, “arose out of fierce opposition to governmental authority and … was designed to protect such opposition … (Article 19) reflects the lessons and spirit of the American Revolution,” a time when politically active people who spoke at public meetings often had more than a few choice words to say about the King.

Today, elected officials may at times have good reason to take umbrage at statements made during a public comment period, particularly when, for example, the rules say that a member of a council can’t respond to a speaker. But sometimes an official may just be thin-skinned. There’s nothing like pointed public criticism to make some electeds get their undies in a bunch.

But that shouldn’t matter. As a practical matter, presiding local municipal officials have an entire toolbox of methods and responses available to them to effectuate orderly meetings. In free speech lexicon we are talking about reasonable time, place and manner restrictions.

Those restrictions may include, for example, a time limit for each speaker. In addition, the rules can delineate the topics that may be addressed — for example, issues generally within the jurisdiction of that committee or matters on the agenda of that meeting.

Other possible rules: no interrupting the speaker; wait your turn to talk; state your name; speak at the podium or other designated spot (subject to reasonable accommodations); only address the chair; have an overall time-limit for public comment — subject to making sure that the speaker’s content doesn’t determine whether they have the opportunity to speak.

Of course, actual threats of imminent physical harm can be prohibited. So can conduct that disrupts the meeting.

To be sure, timing matters. The public should be able to address the council, board, school committee, zoning board of appeals and other municipal bodies before a decision is made.

Two additional points: first, a request for productive and civil civic discourse is always in order. For example, Northampton City Council President Jim Nash starts each public speak time with words written by Northampton Mayor Gina-Lousie Sciarra when she was the City Council president: “Your protected speech is a constitutional right and one that we ask you to wield with consideration and respect for all, and to do so with the recognition that the public space that grants you that freedom is shared equally by everyone.”

Second, because the case is decided on state, and not federal, constitutional grounds, the United States Supreme Court can’t futz with the holding of Barron. And any attempt to constrain public comment periods at this time likely would violate the state constitution.

The public officials with whom I’ve spoken about this decision all have presided over public meetings; all have been on the receiving end of sharp and unpleasant criticism; and all support the SJC decision. That’s gratifying, albeit not surprising. Those officials appreciate that democracy by its nature often is disputatious and not decorous.

There have been difficult public meetings in the past, and there will be difficult public meetings in the future. The Barron decision doesn’t change that. It does protect our most valuable and fundamental rights. It is a decision to celebrate.

Bill Newman, a Northampton-based attorney and the co-host of “Talk the Talk” on WHMP, writes a monthly column.]]>