SJC rules ‘civility’ cannot be required in public meetings

In a unanimous decision on March 7, the Massachusetts Supreme Judicial Court ruled that a public comment policy, or “civility restraint,” used by the town of Southborough violates the free speech rights codified in the Massachusetts Constitution.

“Although civility can and should be encouraged in political discourse,” the court wrote, “it cannot be required.”

The case originated from a lawsuit filed against the town of Southborough in 2020 by a resident who claimed the select board unconstitutionally silenced her at a 2018 public hearing. The resident, Louise Barron, addressed the board on several issues at a meeting in December 2018, making a number of critical comments regarding the town’s spending and accusing the board of breaking the open meeting law. After calling one of her comments “slander,” the chair of the board at the time, Daniel Kolenda, ended the public comment period and threatened to have Barron removed. Kolenda cited the board’s public comment policy, which states, “All remarks and dialogues in public meetings must be respectful and courteous, free of rude personal or slanderous remarks.”

In a 29-page decision, the SJC found that the town’s civility code was an unconstitutional restriction of Barron’s speech.

Citing a case from 1854, Commonwealth v. Porter, the court reaffirmed that “peaceable and orderly is not the same as respectful and courteous.” The court found that, while Barron’s remark likening Kolenda to Hitler was “certainly rude and insulting, it is still speech protected by [Article 19 of the Massachusetts Constitution].”

While time, place and manner restrictions for public comments might be lawful, the court ruled that the public comment policy in this case was “so overbroad, so vague and so subject to manipulation on its face that it is not salvageable or severable.” The court found that Barron had the right to “express her views vehemently, critically and personally to the government officials involved.”

The ruling was celebrated as a free speech victory by Barron, who says she has not attended a public meeting since 2018, as well as by the American Civil Liberties Union, which filed an amicus brief in the case.

John J. Davis, an attorney for the town, countered that the SJC decision “effectively warns local officials against enforcing even modest rules of order and decorum at public meetings and hearings.” In a statement, he added that the 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.”

Some see the ruling as a setback for efforts to promote decorum in government settings at a time when public discourse has grown increasingly coarse and personal. They say the ruling could result in fewer opportunities for public speech, as public boards, which are not required by law to have public comment sessions, could choose to eliminate them altogether. Davis added that the ruling could have a cooling effect on volunteers stepping up to serve on local boards.

The SJC decision reversed an earlier ruling for the town by the Worcester County Superior Court.