Barron, et al. v. Kolenda, No. SJC-13284 (March 7, 2023).

Massachusetts highest court recently revisited the Commonwealth’s history without a view toward revisions but with great regard for the ideals of self-governance that gave rise to the state constitution’s guarantees of rights of assembly and speech.  To this day those goals persist, the court found, such that historically raucous and not infrequently personal public gatherings cannot be supplanted by codes of ‘civility’ which would preclude criticism of public officials. 

Massachusetts state law requires its municipalities and towns to conduct business openly, leaving it to the cities and towns to develop rules for public meetings.  The Town of Southborough enacted a policy demanding ‘civility’ in all public speech and forbidding rude criticisms of town officials.

Townsperson Louise Barron, upset with the state level determinations that the town frequently violated the open meeting policies, was open about her feelings before the select board, subsequent to which she was shouted at, called “disgusting,” and threatened with removal by a member of the board.  Exchanges of “Hitler” epithets were observed.

Barron challenged the board’s policy and action, asserting that it violated her rights of assembly and speech.  The Supreme Judicial Court has agreed, finding that both provisions of the state Declaration of Rights ensure public participation in governance free from fear of being silenced or reprisal.  

Those guarantees are steeped in traditions born in the days that the colonies of the new world sought to extricate themselves from the authority of monarchy and install among themselves rights of self governance, such as speech and assembly, which are not lightly to be disturbed absent a compelling state interest and a narrow means of supporting that interest.

Political speech such as that at town meetings is core political speech which cannot be censored — or censured — because it may precipitate discomfort or bad feelings.  As the town’s civility policy directly interfered with the exercise of assembly and petition rights, and as it was so broad and vague as to chill speech, the Supreme Judicial Court found it to be facially unconstitutional.  The policy was both content based — forbidding criticisms of officials — and viewpoint based — forbidding criticism while allowing praise, and, as such, wholly defective.

In addition to striking down the ‘civility’ policy, the Supreme Judicial Court stripped the town officials of qualified immunity, observing that the rights in question were well established and had been interfered with by threats and coercion.  

The case was remanded for further proceedings.  

Barron v. Kolenda, SJC-13284 (March 7, 2023)