Many citizens in towns throughout the commonwealth volunteer on local boards and committees. Most are uncompensated and contribute considerable time and energy to their communities.
However, due to the polarized climate in local, state and national government, municipalities have found it increasingly difficult to attract qualified individuals to serve, especially on boards and committees which interact directly with citizens.
Many towns have now adopted either oral or written rules of conduct and civility for participation in public meetings. The town of Southboro has adopted a policy and one particular paragraph reads as follows:
“All remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal or slanderous remarks. Inappropriate language and/or shouting will not be tolerated”.
I served for eight years, two as chairman, on the Medfield School Committee. Each meeting had a “public participation” agenda item when citizens could ask questions, comment or give opinions. Courtesy was self -imposed on our members and on citizen participants. There were disagreements, but exchanges were not to be disagreeable. During my tenure, we debated and passed a multi -million dollar school renovation project and many controversial school policies. Requiring civility was a policy that ensured productive results and exchanges in meetings.
A compelling state interest exists in the promotion of substantive and productive interaction between local government officials and the public. Free speech by citizens is required but strict scrutiny of how it is exercised is crucial to allow community governmental leaders to fulfill their duties.
In the recent case of Barron v. Kolenda, SJC No. 13284, the Supreme Judicial Court nullified a municipal civility code of conduct for public meetings due to free speech restrictions.
The case involved a confrontation between a selectman in the Town of Southboro and a citizen, who alleged that her freedom of speech was violated by a civility code enacted to maintain decorum in public meetings. The Court unanimously held that citizens’ rights to choose their own words to express an opinion under the state constitution nullifies the provision passed by the Town to ensure civil discourse. Several quotations from the decision are as follows:
“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…”
“The content sought to be prohibited – discourteous, rude, disrespectful or personal speech about governmental officials and government actions – is clearly protected by Article 19, and thus the prohibition is impermissible”
“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”.(citing court precedents)
The crucial question is whether reasonable limits can be imposed upon the words spoken by citizens at a public meeting.
The Supreme Judicial Court, in Barron, extended the free speech protection well beyond any reasonable protection that must be afforded by the state constitution – and, in doing so, rejected the town’s compelling interest in maintaining civility at the meetings.
The Plaintiff began her public comments in a Southboro selectmen’s meeting by stating that the town ”had been spending like drunken sailors”. Next was an exchange where she compared the board chairman to Hitler by saying, “You’re a Hitler… I can say what I want”. The meeting then went into recess. The Board chairman told the woman that her comments were “disgusting.”
In its decision, the Court stated that the citizen’s comparison of the board chairman to Hitler was simply “ hyperbole used to describe the chairman as behaving in a dictatorial manner…and although a comparison to Hitler is certainly rude and insulting, it is still speech protected….”
In other words, when a volunteer public official is called “Hitler,” his initial reaction and obligation must be to honor the speaker’s constitutional right to make the comparison.
I can honestly say that during my eight-year tenure as a Medfield School Committee member, if a participating citizen had called me Hitler and my initial duty was legally declared to be the protection of the person’s First Amendment right to make the accusation, that would have ended my term of service.
Ironically, although court hearings are not public meetings, per se, they are public in nature. Advocates often address public interest issues and there can be heated exchanges. Nevertheless, when they appear before a judicial tribunal, Rule 3.4 of the Professional Rules of conduct requires advocates to refrain from “abusive or obstreperous conduct,” when presenting their cause and preserve professional integrity by patient firmness rather than “belligerence or theatrics.”
Southboro, and other communities, simply seek to incorporate civility in governmental public meetings. There is, and always will be, a constitutional mandate to protect First Amendment rights. However, strict scrutiny of that right should make the choice of words subject to the compelling interest of a community to have civil public meetings so qualified citizens will still participate in the process. Hopefully, the Town of Southboro will appeal the decision to the Supreme Court. There is a reasonable chance that the Court would overturn the SJC decision and rule that in official public meetings of a government entity, there is a compelling interest in allowing a code of civility to be imposed upon participants’ choice of words, not their ideas.
Steve Kramer is an attorney and former assistant attorney general in Massachusetts from 1980 to 1987.
