SJC rules that free speech at public hearings includes right to use ‘rude, personal, and disrespectful’ words

The John Adams Courthouse (left) in Boston.Barry Chin/Globe Staff/File 2005

The use of “civility restraints” at public hearings violates free speech rights first spelled out in the state constitution by John Adams, the state’s highest court ruled Tuesday, and the new standard applies even when words used are “rude, personal, and disrespectful to public figures.”

In an unanimous 29-page decision, the Supreme Judicial Court decided that current law will be based on its examination of the political atmosphere in Massachusetts during the era of the American Revolution, when Adams and others drafted what became the state constitution known as the Declaration of Rights.

The ruling stems from a contentious public hearing held by selectmen in Southborough in December 2018. At the meeting, a town official cited a local “civility code” to abruptly shut down a public comment period after a resident made critical comments about a proposed property tax hike and repeated violations of the open meeting law, the SJC said.

That was improper under a clause of the state constitution, known as Article 19, that John Adams and his cousin Samuel Adams crafted together, the court ruled. The goal then, and now, is to assure the public has a voice in the operations of all levels of government, especially the municipal level, the court ruled.

Article 19 was inspired by the deep antipathy towards King George III that colonists expressed in harsh and often insulting language, the SJC noted.

Article 19 “reflects the lessons and the spirit of the American Revolution,” Justice Scott L. Kafker wrote for the court. “It was designed to protect such opposition [to governmental authority], even if it was rude, personal, and disrespectful to public figures, as the colonists eventually were to the king and his representatives in Massachusetts.”

Today the government can set rules as to the time, place, and duration of comments at public hearings, but it has no authority to engage in what it called “viewpoint discrimination” by silencing citizens, even when they liken an elected official to Nazi leader Adolf Hitler.

“Although a comparison to Hitler is certainly rude and insulting, it is still speech protected,” the court said, citing Article 16 of the state’s constitution, which inspired the federal First Amendment. “Although civility, of course, is to be encouraged, it cannot be required regarding the content of what may be said in a public comment session of a governmental meeting without violating both provisions of the Massachusetts Declaration of Rights, which provide for a robust protection of public criticism of governmental action and officials.”

At the Dec. 4, 2018, hearing, resident Louise Barron criticized the board of selectmen for repeated violations of the state’s Open Meeting Law and the prospect of property tax increase, the SJC said.

Selectman Daniel J. Kolenda told Barron and others that the public comment period was being halted under the town’s “civility code,” which barred “slanderous” comments about public officials at all levels of government. Kolenda, who is no longer a selectman, could not immediately be reached for comment Tuesday.

Barron said it was unacceptable that the attorney general’s office had found repeated violations of the open meeting law. “I know it’s not easy to be volunteers in town but breaking the law is breaking the law,” Barron said, according to the SJC.

Kolenda: “So ma’am if you want to slander town officials who are doing their very best.”

Barron: “I’m not slandering.”

Kolenda: “We’re going to go ahead and stop the public comment session now and go into recess.”

Barron objected to Kolenda’s abrupt decision to end the comment period and said you “need to stop being a Hitler.” Kolenda ordered the hearing ended, shut off the audio and video recorder and shouted at Barron “you’re disgusting,” and threatened to have her “escorted out” of the meeting, the SJC said.

In 2020, Barron; her husband, Jack Barron; and a third person sued Kolenda and the town, claiming their rights to free speech had been violated and that Kolenda had violated the Massachusetts Civil Rights Act. Worcester Superior Court Judge Shannon Frison sided with the town and dismissed the lawsuit shortly after it was filed.

The SJC reversed that decision and ordered litigation to resume. The court said that the Barrons have demonstrated that Kolenda violated the state civil rights law and that he is personally liable for any damages arising out of the next round of litigation.

“When a government official responds to a resident’s exercise of those rights by accusing her of slandering the board, screaming at her, and threatening her physical removal, it should be clear to him that his conduct is unlawful,” Kafker wrote. “A reasonable public official would understand that his response to the exercise of those rights was unlawful.’'

The SJC also threw out the local policy Kolenda relied on at the hearing.

“The content sought to be prohibited — discourteous, rude, disrespectful, or personal speech about government officials and governmental actions — is clearly protected by art. 19, and thus the prohibition is impermissible,” Kafker wrote. ”In sum, the town’s civility code is contradicted by the letter and purpose of art. 19.”

While concluding that harsh words are a necessary part of public dialogue, the court said in a footnote that while “fighting words” are not protected speech, that standard is narrowly drawn.

“We further emphasize that elected officials are expected to be able to respond to insulting comments about their job performance without violence,” the SJC said.

Louise Barron has not attended a town government meeting since 2018, according to her husband and her attorney, Ginny S. Kremer of Concord. Both said the SJC decision was a powerful endorsement of the importance of public participation in local politics and the rights of citizens to be passionate about their concerns.

“You can’t abuse your citizens,” said Jack Barron. “This is not North Korea.”

“Bless them,” Louise Barron said of the SJC and its ruling. “It’s wonderful. It speaks to the little people in this country. I feel so good. It’s a great day for the people of cities and towns in the commonwealth. It’s a lesson. We fought the fight and didn’t give up. I’m invigorated that we won.”

Both the Pioneer Institute and the American Civil Liberties Union filed friend of the court briefs in support of the Barrons, Kremer said.

“It’s not a partisan issue, it’s a free speech issue,’' she said.

Kremer, an elected member of the Acton-Boxborough Regional School District school committee, said she does not believe the decision will discourage people from seeking public office.

“If you put yourself out there, you need to be prepared to withstand some criticism,’' she said. “Even if it’s uncomfortable at times.”

But John J. Davis, a lawyer for the town, pushed back against the SJC ruling Tuesday.

“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. “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.”

Tonya Alanez of the Globe Staff contributed to this report.