In a victory for free speech rights and core democratic principles, the Massachusetts Supreme Judicial Court today ruled that government officials cannot silence members of the public based on the substance of their input during “public comment” periods of government meetings. Specifically, the state’s highest court ruled that “civility” codes that limit criticism of public officials are contrary to multiple provisions of our state constitution, which provide “robust protection of public criticism of government officials.”
The case, Barron v. Kolenda, concerned a Southborough policy that allowed public officials to censor criticism from members of the public. The policy mandated that “[a]ll remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal, or slanderous remarks. Inappropriate language and/or shouting will not be allowed.” It was used to silence a resident merely for pointing out the Board had repeatedly violated the Open Meeting Law and for hyperbolically referring to the board chair as “Hitler” after he silenced her.
“This is a major victory for free speech and participatory democracy,” said Carol Rose, Executive Director of the ACLU of Massachusetts. “Our state constitution protects our right to make our voices heard, including by expressing criticism to and about public officials. Indeed, that freedom goes to the heart of what separates us from repressive regimes. This ruling is a crucial—and resounding—recognition of these values and legal principles at a time when free speech rights are threatened nationwide.”
In reaching its unanimous decision, the Court emphasized the key role public meetings play in a representative democracy and drew extensively from Massachusetts history. It emphasized that the state constitutional right to assemble and instruct one’s representatives “arose out of fierce opposition to government, even if it was rude, personal, and disrespectful to public figures, as the colonists eventually were to the king and his representatives in Massachusetts.” While recognizing that governments may have rules about when and how long someone may speak, the Court emphasized that “civility restraints on the content of speech at a public comment session in a public meeting are forbidden,” because they are not limited to assuring that public input is “orderly and peaceable” and are content- and viewpoint-based restrictions that can be used to suppress core political speech.
The ACLU of Massachusetts filed an amicus brief urging the Commonwealth’s highest court to strike down the policy because it authorized content-based and viewpoint-based discrimination in a place specifically created for members of the public to provide feedback—including criticism—to their public officials. As the Court did in its opinion, the ACLU also urged the Court to hold that the plaintiff adequately stated a claim under the state Massachusetts Civil Rights Act with regard to the board chair’s actions, including his threats to have her removed from the meeting if she did not stop speaking.