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Sam Adams was hardly civil to authorities and Massachusetts residents today don't have to be, either, court rules

The Massachusetts Constitution lets citizens verbally confront public officials, even to the point of calling them Hitlers, and officials can't just kill the microphones to shut up angry people up at public meetings, the Supreme Judicial Court ruled today, throwing out a Southborough town bylaw that required "civility" at Town Hall meetings.

At issue was a 2018 meeting of the town Select Board when the chairman cut short the regular public-comment period after a local gadfly, upset about both a potential tax increase and a state determination that the board had earlier and repeatedly violated the state Open Meeting Law, called the chairman "a Hitler" twice (to which he replied she was "disgusting"). He cited the town's "civility" bylaw, which requires statements to be "respectful and courteous, free of rude, personal, or slanderous remarks" and which bars shouting and "inappropriate language."

But that bylaw is an unconstitutional example of "viewpoint discrimination," because it allows one form of speech - fulsome praise of town officials - but prohibits another - vitriol hurled at them - the court ruled.

Specifically, it violates Article 19 of the Massachusetts Constitution, written by John Adams with help from his cousin Sam in 1780, which gives the people the right to present their grievances to public officials, and Article 16, the state equivalent of the First Amendment right to free speech, the court ruled.

Article 19 says this right has to be exercised in "an orderly and peaceable manner," but consider the context in which the Adamses wrote the article, the court wrote:

"Peaceable and orderly" is not the same as "respectful and courteous." 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. See Bowie, 130 Yale L.J. at 1677 ("in London, a columnist called Boston's town meetings a 'declaration of war' and criticized Boston's leaders for 'working up the populace to such a frenzy of rage'").

They continued:

The assembly provision arose out of fierce opposition to governmental authority, and it was designed to protect such opposition, even if it was rude, personal, and disrespectful to public figures, as the colonists eventually were to the king and his representatives in Massachusetts. Our interpretation of the text, history, and purpose of art. 19 is further informed by the words and actions of Samuel and John Adams, who not only theorized and commented upon the right, but were historic actors well versed in its application during the revolutionary period, particularly in the towns.

Both Adams cousins emphasized in their correspondence and their actions the importance of the right to assemble. ... Samuel Adams wielded it to great effect in his attempt to "procure a Redress of Grievances" when the British governor of the colony attempted to exercise control over assemblies after the Boston Massacre. Id. at 1680, quoting Report of the Committee to Prepare an Answer to Thomas Hutchinson's Speech (July 31, 1770), in 47 Journals of the House of Representatives of Massachusetts 1770-1771, at 63, 69 (1978).

More philosophically, John Adams explained that the right of assembly was a most important principle and institution of self-government, as it allowed "[every] Man, high and low . . . [to speak his senti]ments of public Affairs." Bowie, supra at 1708, quoting Letter from John Adams to Edmé Jacques Genet (May 28, 1780), in 9 Papers of John Adams 350, 353 (G.L. Lint et al. eds., 1996). Town inhabitants, he wrote, "are invested with . . . the right to assemble, whenever they are summoned by their selectmen, in their town halls, there to deliberate upon the public affairs of the town."

The court then brought the discussion back to the 21st century and that Southborough meeting:

Here, the town expressly provided a place for public comment: the meeting of the board. The town also set the time, after the conclusion of the regular meeting, as was the town's right. Barron presented her grievances at the established time and place. The town nonetheless then sought to control the content of the public comment, which directly implicates and restricts the exercise of the art. 19 right of the people to request "redress of the wrongs done them, and of the grievances they suffer." 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. In sum, the town's civility code is contradicted by the letter and purpose of art. 19.

And so:

There is no question that this civility code is directed at political speech, as it regulates speech in a public comment session of a meeting of the board, and that it is content based, as it requires us to examine what was said. ...

Although civility can and should be encouraged in political discourse, it cannot be required. In this country, we have never concluded that there is a compelling need to mandate that political discourse with those with whom we strongly disagree be courteous and respectful. Rather, we have concluded that political speech must remain "uninhibited, robust, and wide-open." Van Liew v. Stansfield, 474 Mass. 31, 39 (2016), quoting New York Times Co. v. Sullivan, 374 U.S. 254, 270 (1964). This civility code is also drafted with an extraordinarily broad brush. It is certainly not narrowly tailored.

Finally, the policy's requirement that the speech directed at government officials "be respectful and courteous, [and] free of rude . . . remarks" appears to cross the line into viewpoint discrimination: allowing lavish praise but disallowing harsh criticism of government officials. As the Supreme Court has explained, "[w]hen the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant." Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).

In the Southborough resident's case:

[The resident's] comparison between Kolenda and Hitler was, at least in the light most favorable to the plaintiffs, simply hyperbole, describing Kolenda as behaving in a dictatorial manner, that is, domineering or authoritarian. Although a comparison to Hitler is certainly rude and insulting, it is still speech protected by art. 16.

The court did add this doesn't mean municipal boards can set no limits on public speaking:

This is not to say that restrictions cannot be imposed on public comment sessions consistent with arts. 16 and 19. Reasonable 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.

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Comments

Doesn't apply in Boston.

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Do tell.

Did you read the second part about not applying to people screaming down speakers or not yielding the mic?

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Yes, Ed Flynn starts regular Wednesday meetings of the City Council warning people to put down any signs and shut up on possible penalty of being removed, but the court said municipal boards can set a time and place for public comment, and the City Council has decided the time and place for that is during the separate committee hearings at which all council business (aside from ceremonial stuff like proclamations) is first considered, in great detail (some of these hearing last several hours to let everybody speak).

Would this pass muster? Somebody would have to sue for us to find out.

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In a "public" meeting on zoom, members of the public are regularly cut off, limited to 30 seconds, or simply never called upon.

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Sounds to me like the Boston City Council lawyers anticipated this issue and relegated public speaking to less visible meetings that do not take up the whole councils time. This would be perfectly legal because the council is giving people a chance to speak and is not discriminating about who can and can not speak at these meetings.

Sadly this is the route that may be taken by more entities as these public meetings become more rowdy.

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n/t

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As was quoted:

The court did add this doesn't mean municipal boards can set no limits on public speaking:

This is not to say that restrictions cannot be imposed on public comment sessions consistent with arts. 16 and 19. Reasonable 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.

for Ref Art 19:

"The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good; give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer."

Sounds fairly broad although ransacking and burning down Gov. Hutchinson's house as Sam Adams and the Sons of Liberty were alleged to have so done would still be considered over the line of "orderly and peaceable"

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So I can now call a public official a poopey head. Awesome.

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