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Sunday, March 19, 2023
Residents’ Right to Be Rude Upheld by Massachusetts Supreme Court. (NY Times)
Click here to read the full text of the Massachusetts Supreme Judicial Court decision in Barron v. Kolenda, finding Town of Southborough's civility policy was unconstitutional. Three cheers!
Residents’ Right to Be Rude Upheld by Massachusetts Supreme Court
In an age of division, the court ruled that towns could not mandate polite discourse at public meetings. One official called the decision “very dispiriting.”
By Jenna Russell
In a decision that jangled the nerves of some elected officials, the Massachusetts Supreme Judicial Court last week reaffirmed a basic liberty established by the founding fathers: the right to be rude at public meetings.
The ruling sent waves of consternation across the state, where many local select board and school committee members have emerged battle-scarred from the coronavirus pandemic and its fierce disputes over masks, vaccines and remote learning. Stemming from a lawsuit filed against the town of Southborough, Mass., by a resident who said selectmen had silenced her unlawfully, the decision pushed back against attempts to mandate good manners.
“On its face it’s very dispiriting,” said Geoff Beckwith, executive director of the Massachusetts Municipal Association, which until last week had been nudging towns to develop civility guidelines for meetings. “Will it encourage the very few, very vocal individuals whose goal is to be disruptive? The S.J.C. is saying that’s the price of true freedom of speech.”
In a state with a long, proud tradition of grassroots democracy, where people still sit shoulder to shoulder in high school auditoriums each spring to quarrel over budgets at annual town meetings, fierce debate is a hallmark of civic engagement. Still, some observers caution that unchecked unpleasantness could have unintended consequences: fewer volunteers to take on the often thankless work of running town boards, for example, and fewer opportunities for public comment, which are not required by law
Those concerns were not enough to sway the state’s high court. It struck down as unconstitutional Southborough’s “civility code” for public comment at meetings, which required “respectful and courteous” discourse “free of rude, personal or slanderous remarks.” It reversed an earlier Worcester County Superior Court ruling for the town, which lies between Boston and Worcester and has about 10,000 residents.
Decorum, the new decision concluded, was not a top priority for the cousins John and Samuel Adams when they drafted Article 19 in the Massachusetts Constitution, ratified in 1780. By laying out the right to request “redress of the wrongs done them, and of the grievances they suffer,” the justices noted, they aimed to protect the colonists’ freedom to rail against King George III, disparaged at the time as “the Royal Brute,” in a profane and ungracious manner.
“There was nothing respectful or courteous about the public assemblies of the revolutionary period,” the court wrote in its opinion. “There was also much that was rude and personal, especially when it was directed at the representatives of the king and the king himself.”
Louise Barron, who filed the lawsuit with her husband, Jack, and a Southborough neighbor, said she had sparred with town leaders for years over spending decisions and records requests. But she was stunned to be threatened with removal from a Southborough Select Board meeting in December 2018 for criticizing the board.
I didn’t go in with any anticipation of a knock-down, drag-out, but surprise, surprise,” Ms. Barron, 71, said in an interview. She described herself as civic-minded and “oppositional.”
“She’s always ladylike,” her husband added.
“I buck the system,” Ms. Barron said.
In her comments to the board that night, she said, she was trying to hold the town accountable for breaking the state’s open meeting law, a violation that the state attorney general’s office had confirmed. “I know it’s not easy to be volunteers in town, but breaking the law is breaking the law,” she said at the lectern in the mostly empty chamber, holding a homemade sign that said “STOP SPENDING” on one side and “STOP BREAKING OPEN MEETING LAW” on the other.
After a board member, Daniel L. Kolenda, cut her off and accused her of “slander” against “town officials who are doing their very best,” Ms. Barron told him, “Look, you need to stop being a Hitler. You’re a Hitler. I can say what I want.”
As seen in a video of the exchange, Mr. Kolenda then stopped the meeting, stood and pointed angrily at her. Ms. Barron said he called her “disgusting” and told her she would be escorted out if she did not leave.
Mr. Kolenda, an Army veteran who has said that his experience in Iraq inspired him to run for office, is no longer on the board. He did not return a call from a reporter on Thursday.
Shaken, Ms. Barron went home and has not attended a meeting of any town board since; she sued the town in 2020. “Now I think I should have stayed,” she said, “and made them call the police.”
The court found that her reference to Hitler was “certainly rude and insulting,” but was protected speech nonetheless. The town’s insistence on civility “appears to cross the line into viewpoint discrimination: allowing lavish praise but disallowing harsh criticism of government officials,” the ruling said.
“Although civility can and should be encouraged in political discourse,” the justices wrote, “it cannot be required.”
An attorney for the town, John J. Davis, said in a statement that the court’s decision “effectively warns local officials against enforcing even modest rules of order and decorum at public meetings.” He predicted it would lead to “less free speech, not more, as public comment sessions may soon become a thing of the past.”
In the years since the Barrons filed their lawsuit, some observers say, public meetings around the country have grown more contentious, fueled by pandemic-related disruption and deepening political division. In Oxford, Mass., near the Connecticut border, the select board chairman called the police during a meeting in 2021 and demanded that they remove the vice chairwoman, after she read a statement calling for more government transparency.
The now-former board member who was targeted, Meaghan Troiano, said she had lobbied for years to add a regular public comment period at meetings, a move the board chairman opposed. She believes the Supreme Judicial Court made the right call in the Southborough case.
“They shut me down and wouldn’t let me speak because they didn’t like what I was saying,” said Ms. Troiano, who resigned from her town’s board in frustration six months later. “People still have a right to speak and be heard even if you don’t agree with them.”
Experts say the best way to encourage civil behavior is to treat people civilly in the first place, and in a way that they perceive to be fair. “The people in power have to set the tone,” said Lauren Park, a researcher in organizational psychology.
A critical component is how leaders handle criticism, said Jodi R.R. Smith, a longtime etiquette consultant in Boston. Defensiveness is not recommended.
“The difference between a good and bad politician, or executive, is how they handle someone giving negative feedback,” Ms. Smith said. “Imagine the difference if a board, instead of getting defensive, said, ‘This person is not feeling heard’, and then said, ‘Tell us more’.”
In Southborough, the selectman who became angry after Ms. Barron called him “a Hitler” addressed the episode at a later meeting, where he said he was “sorry that I became visibly upset with the resident.” He explained that her insult was “so inflammatory” that it caused “heightened emotion.”
That was not good enough for Ms. Barron, who said her entire court case might have been prevented by an apology that was more direct.
With such a gesture, she said, “This would have been put to bed.”
Jenna Russell is The Times’s New England bureau chief, based in Boston.
A version of this article appears in print on March 19, 2023, Section A, Page 19 of the New York edition with the headline: In Massachusetts, Right to Be Rude at Public Meetings Is Protected. Order Reprints | Today’s Paper | Subscribe