- Miyares and Harrington, LLP
Incivility in Public Discourse Cannot Be Banned
On March 7, 2023, the Supreme Judicial Court unanimously ruled that “civility restraints on the content of speech at a public comment session in a public meeting are forbidden.” Barron v. Kolenda. The Court explored the legality of Southborough Select Board’s Civility Code, which provided, in relevant part, “All 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 tolerated. …” The Court concluded that the town’s Civility Code sought to prohibit discourteous, rude, disrespectful, or personal speech about government officials and governmental actions, speech which is solidly protected by Articles 16 and 19 of the Massachusetts Declaration of Rights. Simply stated, while civility can be encouraged, it cannot be required.
At the meeting in question, Louse Barron stated during public comment that the “town had been spending like drunken sailors” and expressed her frustration with members of the Select Board violating the Open Meeting Law, stating that “I know it’s not easy to be volunteers in town but breaking the law is breaking the law.” In response, the acting chair accused her of slandering town officials and said that if she couldn’t stop, he was going to end the public comment session and recess the meeting. Barron retorted that he needed to “stop being a Hitler”, at which time, the acting chair recessed the meeting, ending public comment. The acting chair then turned off his microphone and yelled at Barron that she was “disgusting” and that he would have her “escorted out” of the meeting if she did not leave. Concerned about his threat, she left the meeting.
The Court stressed that reasonable time, place, and manner restrictions could be imposed on public speech to ensure a “peaceful and orderly” meeting. However, “peaceable and orderly” conduct is not the same as “respectful and courteous” statements. “There was nothing respectful or courteous about the public assemblies of the revolutionary period. There was also much that was rude and personal, especially when it was directed at the representatives of the king and the king himself.” Southborough’s Civility Code crossed the line from regulating a “peaceable and orderly” meeting, into viewpoint and content-based discrimination, “allowing lavish praise but disallowing harsh criticism of government officials.”
The Court provided some guidance on what type of restrictions might be permissible: “[r]easonable time, place, and manner restrictions could include designating when and where a public comment session may occur, how long it might last, the time limits for each person speaking during the public comment session, and rules preventing speakers from disrupting others and removing those who do.” Communities are advised to review their current public speech policies and determine whether they follow the holding in Barron.
Finally, the Court found that the acting chair’s statements violated the Massachusetts Civil Rights Act, G.L. c.12, §§11H-11I, and that there was no qualified immunity for his actions because the plaintiff's constitutional right to speak would have reasonably been known to the acting chair. Board members should therefore refrain from attempting to restrict the content of public speech or risk individual liability, which may or may not be indemnified by the municipality or its insurer.
 Municipalities can agree to indemnify municipal officials from personal financial loss and expenses including reasonable legal fees and costs, in an amount not to exceed $1 million. G.L. c.258, §13. Questions on adopting this provision should be directed to Town Counsel.