Responses to SJC Ruling on Select Board comment policy

Today, I received a press release from the Mass chapter of the ACLU (American Civil Liberties Union). They are advising how towns should address this week’s ruling by the state’s Supreme Judicial Court on policies for comment in public meetings.

This should especially interest our Town, since (as I posted on Tuesday) Southborough’s “unconstitututional” policy was the focus of the ruling.

The advocacy group is just one of the parties linked to the case whose public reactions I’m sharing.

The Mass Supreme Judicial Court’s finding focused on a sentence in the policy adopted by the Select Board in 2017 that requires “All remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal, or slanderous remarks”.

The decision issued Tuesday went further than just making a statement about the policy, also remanding the case Barron v. Kolenda (and the Southborough Select Board) back to Worcester Superior Court. On Tuesday night, Town Administrator Mark Purple told the Select Board that their attorney was reviewing the decision and would get back to them. (In the meantime, the comment policy is still posted on the Town’s website.)

As I wrote about the ruling, the Town is still allowed to restrict the timing and length of comments, just not the rudeness of content. Comments on the blog have speculated about the possibility of boards and committees eliminating public comment from their meetings as a result.

The concern is consistent with a statement from the Town’s defense counsel John J. Davis, quoted by the Boston Globe:

“Unfortunately, the Supreme Judicial Court’s decision elevates the public’s unfettered right to express their views above local governments’ significant and legitimate interests in conducting the important business of cities, towns and public school districts in an efficient and orderly manner,” Davis said in a statement.

“Ironically, because governmental bodies need not place public comment sessions on their agendas in the first place, today’s decision will lead to less free speech not more, as public comment sessions may soon become a thing of the past,” Davis said.

That is the kind of reaction the ACLU of Massachusetts is trying to head off. A press release on the topic promotes:

Public meetings can be efficient, orderly, and open for public comment after SJC free speech ruling

Prior to oral arguments, the court publicly sought amicus briefs. The ACLU had filed a brief urging the court find against the Town’s comment policy. Today, they delivered a letter to two organizations that had filed briefs seeking the opposite outcome — the Mass Mass Municipal Lawyers Association and the the Massachusetts Association of School Committees. (You can read about all of the amicus briefs here.)

The ACLU’s press release explains their viewpoint expressed in the letter:

Ending public comment periods altogether in response to this decision would raise serious constitutional questions, according to the new ACLU letter. In light of the Court’s analysis, there is strong reason to believe that eliminating public comment sessions could violate Articles 16 and 19 of the state’s Declaration of Rights, as well as the First Amendment to the U.S. Constitution. 

Public bodies have many tools that are consistent with the Court’s decision to continue public comment sessions and ensure meetings are orderly. In 2019, the ACLU of Massachusetts represented two mothers in a case against the Natick School Committee after the women were shut down while expressing concerns about the operation of the Natick Public Schools during a “Public Speak” session. After a court ruled that this violated free speech rights, the Natick School Committee adopted a policy that honored free speech and ensured a process for orderly meetings.  

You can read the full press release here and the letter here.

The lawyers aren’t the only ones publicly reacting to the ruling. An article by the Telegram included an interview one of the three plaintiffs in the case filed by Louise Barron (the resident who was silenced) and her husband, along with neighbor Arthur St. Andre:

Jack Barron said his wife was ecstatic and felt vindicated when she heard the news that the Supreme Judicial Court ruled in her favor. He added that he hopes Louise Barron will resume her public advocacy in the town at some point, which she withdrew from following the confrontation. . . 

“Many, many thousands of Americans have given their lives for these freedoms of speech and civil rights and First Amendment rights,” Barron said. “All we had to do was go to court and pay for it. So that’s a lot easier than losing your life.”

The article contains more interesting context from their attorney Ginny Kremer. She pointed to the same prior case cited by the ACLU, on the Middlesex Superior Court’s ruling that had found against a Natick School Committee’s policy that regulated against speech content. She said that many towns changed their policy as a result of the ruling (issued in 2018), but not ours:

“Instead of admitting that the actions were not defensible, they doubled down and not only sought to defend Mr. Kolenda’s actions, but actually moved to dismiss the whole case, and they won that in front of the Superior Court,” Kremer said.

The Globe story also quoted the Town’s counsel as warning about another potential unintended consequence from the ruling:

“Moreover, in light of the Court’s unduly narrow interpretation of what qualifies as disruptive behavior, unpaid citizens, after today, will no doubt be less likely to volunteer to serve on local boards, committees and commissions.”

In contrast, the Telegram quotes Kremer as stressing that a different outcome would have resulted in a “chilling effect” on state residents’ free speech:

“To know that if you go to voice your concerns and criticisms, you could be shut down, humiliated and thrown out.”