Barron v. Kolenda ( 2023 )

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SJC-13284
LOUISE BARRON & others1 vs. DANIEL L. KOLENDA2 & another.3
Worcester. November 2, 2022. – March 7, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker,
& Wendlandt, JJ.
Open Meeting Law. Municipal Corporations, Open meetings,
Selectmen, Governmental immunity. Constitutional Law,
Right to assemble, Right to petition government, Freedom of
speech and press. Governmental Immunity. Massachusetts
Civil Rights Act. Civil Rights, Availability of remedy,
Immunity of public official. Declaratory Relief.
Civil action commenced in the Superior Court Department on
April 3, 2020.
The case was heard by Shannon Frison, J., on a motion for
judgment on the pleadings.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Ginny Sinkel Kremer for the plaintiffs.
John J. Davis for the defendants.
1 Jack Barron and Arthur St. Andre.
2 Individually and as a member of the board of selectmen of
Southborough.
3 Town of Southborough.
2
The following submitted briefs for amici curiae:
John Foskett for Massachusetts Association of School
Committees.
Ruth A. Bourquin for American Civil Liberties Union of
Massachusetts, Inc.
Maura E. O'Keefe, Town Counsel, & Rosemary Crowley for
Massachusetts Municipal Lawyers Association.
Frank J. Bailey, Selena Fitanides, & John C. La Liberte for
PioneerLegal, LLC.
KAFKER, J. After objecting to open meeting law violations
and other municipal actions in a public comment session at a
meeting of the board of selectmen of Southborough (board), the
plaintiff Louise Barron was accused of violating the board's
"public participation at public meetings" policy (public comment
policy or civility code) and eventually threatened with physical
removal from the meeting. Thereafter, she and two other
plaintiffs brought State constitutional challenges to the
policy, claiming in particular that she had exercised her
constitutionally protected right under art. 19 of the
Massachusetts Declaration of Rights "to assemble, speak in a
peaceable manner, and petition her town leaders for redress."
In the plaintiffs' request for declaratory relief, seeking
to have the public comment policy declared unconstitutional,
they also used terminology associated with free speech claims
brought under art. 16 of the Massachusetts Declaration of
Rights, as amended by art. 77 of the Amendments to the
Constitution, and the First Amendment to the United States
Constitution, although they voluntarily withdrew their First
3
Amendment and other Federal claims, eliminating the Federal
constitutional basis that had justified removal of the case from
State to Federal court. Finally, Barron claims that the threat
to remove her from the meeting for exercising her State
constitutional rights violated the Massachusetts Civil Rights
Act (MCRA), G. L. c. 12, §§ 11H-11I.
For the reasons set forth infra, we conclude that the
public comment policy of the town of Southborough (town)
violates rights protected by art. 19 and, to the extent it is
argued, art. 16. Under both arts. 19 and 16, such civility
restraints on the content of speech at a public comment session
in a public meeting are forbidden. 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 without violating both provisions of the
Massachusetts Declaration of Rights, which provide for a robust
protection of public criticism of governmental action and
officials. What can be required is that the public comment
session be conducted in an "orderly and peaceable" manner,
including designating when public comment shall be allowed in
the governmental meeting, the time limits for each person
speaking, and rules preventing speakers from disrupting others,
and removing those speakers if they do. We have concluded that
such time, place, and manner restrictions do not violate either
4
the right to assembly under art. 19 or the right to free speech
under art. 16. See Desrosiers v. Governor, 486 Mass. 369, 390-
391 (2020), cert. denied, 142 S. Ct. 83 (2021) (permitting time,
place, and manner restrictions under art. 19); Mendoza v.
Licensing Bd. of Fall River, 444 Mass. 188, 197-198 (2005)
(discussing time, place, and manner restrictions under art. 16).
Furthermore, when Barron alleged that the chair threatened
to have her physically removed from a public comment session of
a public meeting after she criticized town officials about
undisputed violations of the open meeting laws, she properly
alleged that he threatened to interfere with her exercise of
State constitutional rights protected by arts. 16 and 19 in
violation of the MCRA. There is also no qualified immunity, as
there is a clearly established State constitutional right under
arts. 16 and 19 to object (and even to do so vigorously) to the
violation of the law by government officials in a public comment
session of a public meeting. We therefore reverse the Superior
Court judgment entered in favor of board member Daniel L.
Kolenda. We also direct the Superior Court to enter a judgment
declaring the town's public comment policy unconstitutional in
violation of arts. 19 and 16.4
4 We acknowledge the amicus briefs submitted by the
Massachusetts Association of School Committees; American Civil
Liberties Union of Massachusetts, Inc.; Massachusetts Municipal
Lawyers Association; and PioneerLegal, LLC.
5
Background. 1. Public meeting. We draw the facts from
the plaintiffs' complaint, while also considering the board's
public comment policy and the video recording of the board's
December 4, 2018 meeting, both of which were included in the
record and considered by the judge below. See Mullins v.
Corcoran, 488 Mass. 275, 281 (2021), quoting Schaer v. Brandeis
Univ., 432 Mass. 474, 477 (2000) ("In deciding [a motion for
judgment on the pleadings], all facts pleaded by the nonmoving
party must be accepted as true. . . . We also may rely on
'matters of public record, orders, items appearing in the record
of the case, and exhibits attached to the complaint'");
Rosenberg v. JPMorgan Chase & Co., 487 Mass. 403, 408 (2021) (in
reviewing motion to dismiss, we may consider extrinsic documents
plaintiff relied on in framing complaint).
Barron is a town resident and a longtime participant in
local government. The board consists of five elected members.
Kolenda was a longtime member of the board. The board is
subject to "the Massachusetts open meeting law, G. L. c. 30A,
§§ 18 and 20 (a), which generally requires public bodies to make
their meetings, including 'deliberations,' open to the public."
Boelter v. Selectmen of Wayland, 479 Mass. 233, 234 (2018). The
board's public comment policy outlines the public comment
portion of its meetings where town residents may address the
6
board.5 In 2018, the Attorney General determined that the board
had committed dozens of open meeting law violations and ordered
5 The public comment policy states in full:
"The [board of selectmen] recognizes the importance of
active public participation at all public meetings, at the
discretion of the [c]hair, on items on the official agenda
as well as items not on the official agenda. All comments
from the public should be directed to or through the
[c]hair once the speaker is recognized, and all parties
(including members of the presiding [b]oard) act in a
professional and courteous manner when either addressing
the [b]oard, or in responding to the public. Once
recognized by the [c]hair, all persons addressing the
[b]oard shall state their name and address prior to
speaking. It is the role of the [c]hair to set time
limitations and maintain order during public meetings, as
it is important that the [b]oard allow themselves enough
time to conduct their official town business.
"If included on the meeting agenda by the [c]hair,
'[p]ublic [c]omment' is a time when town residents can
bring matters before the [b]oard that are not on the
official agenda. Comments should be short and to the
point, with the [c]hair ultimately responsible to control
the time available to individual speakers. Except in
unusual circumstances, any matter presented under '[p]ublic
[c]omment' will not be debated or acted upon by the [b]oard
at the time it is presented.
"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. Furthermore, no person may offer
comment without permission of the [c]hair, and all persons
shall, at the request of the [c]hair, be silent. No person
shall disrupt the proceedings of a meeting.
"Finally, while it true that State law provides that the
[c]hair may order a disruptive person to withdraw from a
meeting (and, if the person does not withdraw, the [c]hair
may authorize a constable or other officer to remove the
person from the meeting), it is the position of the [board]
that no meeting should ever come to that point."
7
each member of the board to attend in-person open meeting law
training.
Barron attended the board's meeting on December 4, 2018,
where Kolenda was acting as the chair. The board members
discussed a number of topics, including the town budget, which,
if approved, would result in increased real estate taxes for
town residents. The board also discussed the possibility of
elevating the town administrator to the position of town
manager. The board also briefly addressed the open meeting law
violations. During the discussion on this point, Kolenda stated
that the board is "a group of volunteers," and further
characterized its members as "public servants" who "do their
best."
After approximately two and one-half hours of business,
Kolenda announced that the board would be moving to public
comment. Kolenda then stated, paraphrasing from the public
comment policy:
"And before we go to public comment, just a reminder for
anyone who wants to make public comment. It's a time when
town residents can bring matters before the board of
selectmen that are not on the official agenda. We do have
these posted for all boards and committees. Comments
should be short and to the point and remarks must be
respectful and courteous, free of rude, personal, or
slanderous remarks, and the guidelines go on for a couple
of pages, but if anyone has any questions on that feel free
to ask us. If not, public comment please."
Barron then approached the podium holding a sign that stated
"Stop Spending" on one side and "Stop Breaking Open Meeting Law"
8
on the other. Barron began her comments by critiquing the
proposed budget increases, opining that the town "ha[d] been
spending like drunken sailors" and was "in trouble." She argued
for a moratorium on hiring and inquired about the benefits of
hiring a town manager as opposed to a town administrator.
Kolenda responded that questions would not be answered as the
board was "not going to have a back and forth discussion during
public comment." Barron began moving to her next topic of
concern but another board member responded to her question,
indicating that the issue of a town manager would be considered
by a committee and "ha[d] nothing to do with [the] upcoming town
meeting."
After the board member's response, Barron began to critique
the board for its open meeting law violations. Barron and
Kolenda then had the following exchange:
Barron: "And the next thing I want to say is you said that
you were just merely volunteers, and I appreciate that, but
you've still broken the law with open meeting law, and that
is not the best you can do. And . . . when you say that
. . . this is the best we could do, I know it's not easy to
be volunteers in town but breaking the law is breaking the
law and --"
Kolenda: "So ma'am if you want to slander town officials
who are doing their very best -–"
Barron: "I'm not slandering."
Kolenda: "-- then then we're gonna go ahead and stop the
public comment session now and go into recess."
9
When Kolenda said the word "now," Barron interjected and,
simultaneously to Kolenda saying, "go into recess," Barron
stated, "Look, you need to stop being a Hitler." Barron
continued: "You're a Hitler. I can say what I want." After
Barron's second reference to Hitler, Kolenda said: "Alright, we
are moving into recess. Thank you."
The audio recording on the public broadcast then stopped.
A message on the screen stated, "The Board of Selectmen is
taking a brief recess and will return shortly," but the video
recording continued to show the board members for approximately
thirteen seconds.
Kolenda turned off his microphone, stood up, and began
pointing in Barron's direction, repeatedly yelling at her,
"You're disgusting!" Kolenda told Barron that he would have her
"escorted out" of the meeting if she did not leave. Concerned
that Kolenda would follow through with his threat, Barron left
the meeting.
2. Procedural history. In April 2020, Barron, her
husband, and a third resident of the town filed a complaint in
the Superior Court alleging both Federal and State causes of
action relating to the board's December 4, 2018 meeting. The
defendants removed the case to Federal court, but it was
remanded to the Superior Court after the plaintiffs withdrew the
Federal claims. The plaintiffs' amended complaint sought a
10
judgment declaring that a portion of the policy was
unconstitutional under the Massachusetts Declaration of Rights
to the extent that the policy disallows criticism of the board
members and their decisions. They also sought relief against
Kolenda in his individual capacity under the MCRA, G. L. c. 12,
§§ 11H-11I, for violation of art. 19.6 Article 19 is the only
provision of the Declaration of Rights that is expressly
referenced in the complaint, although the request for
declaratory relief is more open-ended and uses the terminology
associated with free speech claims.
Prior to discovery, the defendants filed a motion for
judgment on the pleadings. The motion was allowed as to all
counts, and the plaintiffs appealed. We transferred the case
here on our own motion.
Discussion. In the instant case, we are confronted with a
State, not a Federal, constitutional challenge. It is also a
6 The plaintiffs also brought an MCRA claim against Kolenda
in his official capacity; MCRA claims against two other board
members in their official and individual capacities; and claims
against the board members for violating the open meeting law.
Barron individually brought several common-law claims against
Kolenda. The judge dismissed all of Barron's and the
plaintiffs' claims. On appeal, the plaintiffs challenge only
the dismissals of their claim for a declaratory judgment and the
MCRA claim against Kolenda. The plaintiffs do not argue against
the dismissal of the MCRA claim against Kolenda in his official
capacity. Consequently, we do not review the dismissal of the
other claims. See Lyons v. Secretary of the Commonwealth, 490
Mass. 560, 593 n.42 (2022) (claims not argued in brief are
waived).
11
challenge expressly premised on art. 19, a provision that has
not been the focus of much attention in recent case law, despite
its illustrious past. Notably, this provision has served an
important, independent purpose for much of the history of
Massachusetts government, as there was no free speech provision
in the original Declaration of Rights. In fact, such a
provision was not added to the Massachusetts Constitution until
1948, when it was amended to include express free speech
protections. See art. 16 of the Massachusetts Declaration of
Rights, as amended by art. 77 of the Amendments to the
Constitution.
As the text of art. 19, which was drafted by John Adams
with some assistance from his cousin Samuel Adams,7 along with
its illuminating constitutional history, is directly applicable
and dispositive of the claims here, we focus on art. 19 first.
Because the request for declaratory relief is more open-ended
and uses the terminology associated with art. 16 and First
Amendment claims, we address art. 16 as well.
1. Standard of review. "We review the allowance of a
motion for judgment on the pleadings de novo." Mullins, 488
Mass. at 281. We accept as true "all facts pleaded by the
7 The Adams cousins were two of the three members of the
subcommittee at the constitutional convention charged with
drafting the Massachusetts Constitution. See S.E. Morison,
History of the Constitution of Massachusetts 20 (1917).
12
nonmoving party" and "draw every reasonable inference in [that
party's] favor" to determine whether the "factual allegations
plausibly suggest[]" that the nonmoving party is entitled to
relief. Id., quoting UBS Fin. Servs., Inc. v. Aliberti, 483
Mass. 396, 405 (2019). This standard applies to our review of
the allowance of the motion for judgment on the pleadings with
regard to the claim of a violation of the MCRA. Our review of
the request for a declaratory judgment, however, differs. The
plaintiffs seek a declaration that the town's public comment
policy is unconstitutional. We review this as a facial
challenge based on the uncontested language of the policy
itself. This presents a question of law for the court requiring
de novo review. See Commonwealth v. McGhee, 472 Mass. 405, 412
(2015) (facial challenge to statute "present[s] questions of law
that we review de novo").
2. Article 19. The text of art. 19 provides: "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." As
written, this provision expressly envisions a politically active
and engaged, even aggrieved and angry, populace.
13
The text of art. 19 thus encompasses the plaintiffs'
complaint here. Barron assembled with others at the public
comment session of the board meeting to request redress of the
wrongs they claimed had been done to them and the grievances
they claimed to have suffered by town official actions,
including the town's noncompliance with the open meeting law.
The text of this provision has also not been interpreted to
be limited to State representatives or legislative bodies,
despite some wording to that effect, but rather has been
interpreted to be directed at the people's interaction with
government officials more generally, including in particular
town officials. See Kobrin v. Gastfriend, 443 Mass. 327, 333
(2005) (statutory right to petition is coextensive with art. 19
and applies where "a party seeks some redress from the
government"); MacKeen v. Canton, 379 Mass. 514, 521-522 (1980)
(evaluating whether town meeting procedures were consistent with
art. 19); Fuller v. Mayor of Medford, 224 Mass. 176, 178 (1916)
(right to assemble under art. 19 "enable[s] the [town] voters to
have full and free discussion and consultation upon the merits
of candidates for public office and of measures proposed in the
public interests").
The provision also has a distinct, identifiable history and
a close connection to public participation in town government
that is uniquely informative in this case. As more fully
14
explained infra, art. 19 reflects the lessons and the spirit of
the American Revolution. 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. See Bowie, The
Constitutional Right of Self-Government, 130 Yale L.J. 1652,
1727-1728 (2021). 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 . . .
15
[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." Letter from John Adams to the Abbé
de Mably (1782), in 5 Works of John Adams 492, 495 (C.F. Adams
ed. 1851). "The consequences" of the right of assembly, in
Adams's words, were that "the inhabitants . . . acquired . . .
the habit of discussing, of deliberating, and of judging of
public affairs," and thus, "it was in these assemblies of towns
. . . that the sentiments of the people were formed . . . and
their resolutions were taken from the beginning to the end of
the disputes . . . with Great Britain." Id. Alexis de
Tocqueville made a similar point in Democracy in America:
"Town-meetings are to liberty what primary schools are to
science; they bring it within the people's reach, they teach men
how to use and how to enjoy it." 1 A. de Tocqueville, Democracy
in America 55 (H. Reeve trans. 1862).
Our own case law interpreting art. 19 confirms Adams's
insights regarding the critical role of the right of assembly in
the towns in cultivating the spirit and practice of self-
16
government. As Justice Rugg wrote in Wheelock v. Lowell, 196
Mass. 220, 227 (1907):
"It is hard to overestimate the historic significance and
patriotic influence of the public meetings held in all the
towns of Massachusetts before and during the Revolution.
No small part of the capacity for honest and efficient
local government manifested by the people of this
Commonwealth has been due to the training of citizens in
the form of the town meeting. The jealous care to preserve
the means for exercising the right of assembling for
discussion of public topics . . . demonstrates that a vital
appreciation of the importance of the opportunity to
exercise the right still survives."
From the beginning, our cases have also emphasized that
"the fullest and freest discussion" seems to be "sanctioned and
encouraged by the admirable passage in the constitution,"
Commonwealth v. Porter, 1 Gray 476, 478, 480 (1854), so long as
the right is exercised in "an orderly and peaceable manner," id.
at 478. In fact, the drafters of art. 19 tracked the language
of the Pennsylvania Constitution but with the specific addition
of the clause providing that such assembly shall be done "in an
orderly and peaceable manner." Bowie, 130 Yale L.J. at 1707.
Further clarifying the type of limitations that ensure an
"orderly and peaceable" assembly, our more recent case law has
drawn on well-understood First Amendment principles and provided
for reasonable time, place, and manner restrictions. As we
stated:
"States may impose reasonable restrictions on the time,
place, or manner of protected speech and assembly 'provided
the restrictions "are justified without reference to the
content of the regulated speech, that they are narrowly
17
tailored to serve a significant governmental interest, and
that they leave open ample alternative channels for
communication of the information."'"
Desrosiers, 486 Mass. at 390-391, quoting Boston v. Back Bay
Cultural Ass'n, 418 Mass. 175, 178-179 (1994).
3. The application of art. 19 to the civility code. The
question then becomes whether the enforcement of the town's
civility code passes muster under art. 19. The code provides:
"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. Furthermore, no person may offer
comment without permission of the [c]hair, and all persons
shall, at the request of the [c]hair, be silent. No person
shall disrupt the proceedings of a meeting."
As explained supra, the text, history, and case law
surrounding art. 19 provide for the "fullest and freest"
discussion of public matters, including protection of fierce
criticism of governmental action and actors, so long as that
criticism is done in a peaceable and orderly manner and is
consistent with time, place, and manner restrictions. Porter, 1
Gray at 478. See Desrosiers, 486 Mass. at 390-391. "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
18
the representatives of the king and the king himself.8 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'").
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.9 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
8 The policy's prohibition on slander raises a different set
of questions that we need not resolve here. In Commonwealth v.
Surridge, 265 Mass. 425, 427 (1929), this court expressly carved
out slander from protection under art. 19. However, at least
under First Amendment principles, slander directed at public
officials requires actual malice. See Edwards v. Commonwealth,
477 Mass. 254, 263 (2017), S.C., 488 Mass. 555 (2021), citing
New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964).
9 A manner regulation restricts the way in which a speaker
communicates, i.e., the medium of communication or aspects of
that medium like the size of signs or the volume of audio. See
Regan v. Time, Inc., 468 U.S. 641, 656 (1984) (plurality
opinion) (manner regulations include "size and color
limitations" on photographs, "decibel level restrictions," and
"size and height limitations on outdoor signs"); Back Bay
Cultural Ass'n, 418 Mass. at 183 (ban on "forms of
entertainment" that "create the type of noise the city
legitimately seeks to eliminate" would be permissible). We are
not presented with disputed manner restrictions in the instant
case.
19
they suffer."10 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. 19.11
10This is not a case in which the public meeting was
limited to a particular item or items. Although that would be
content based, in order to function efficiently, towns must be
able to hold public meetings limited to a particular subject
without violating art. 19, so long as the town provides other
opportunities to exercise this right, as it did in the instant
case. Cf. Madison Joint Sch. Dist. No. 8 v. Wisconsin
Employment Relations Comm'n, 429 U.S. 167, 175 n.8 (1976)
("Plainly, public bodies may confine their meetings to specified
subject matter and may hold nonpublic sessions to transact
business").
11Given the detailed and emphatic text, history, and case
law, there is no reason to conclude that the State
constitutional right protected by art. 19 would be any less
protective than the right of assembly protected by the First
Amendment. Throughout most of its history, the right of
assembly clause in the First Amendment, although not interpreted
as being "identical" to the right of free speech, has not been
given much independent significance. See National Ass'n for the
Advancement of Colored People v. Claiborne Hardware Co., 458
U.S. 886, 911-912 (1982); Thomas v. Collins, 323 U.S. 516, 530
(1945) (rights to freedom of speech, assembly, and press,
"though not identical, are inseparable"). See also Blackhawk,
Lobbying and the Petition Clause, 68 Stan. L. Rev. 1131 (2016);
Bowie, 130 Yale L.J. at 1655; El-Haj, The Neglected Right of
Assembly, 56 UCLA L. Rev. 543 (2009); Inazu, The Forgotten
Freedom of Assembly, 84 Tul. L. Rev. 565, 570 (2010). Although
the Supreme Court's more recent decision in Duryea v. Guarneri,
564 U.S. 379, 394 (2011), somewhat reinvigorated the provision,
Blackhawk, supra at 1181, the vigor of art. 19 is unquestionable
as reflected in its text, history, and case law. Indeed, the
clear thrust of that text, history, and case law interpreting
art. 19 compels the conclusion that the town's civility code is
unconstitutional.
20
4. Article 16. Assuming that the request for declaratory
relief also includes a claim based on art. 16, as well as art.
19, we also conclude that art. 16 is violated.
In their request for declaratory relief, the plaintiffs
state:
"The [c]ourt should declare that the [d]efendants may not
regulate protected speech during any time period designated
for speech by the public based on the content of the
message of the speaker, the view point of the speaker, or
their desire to avoid criticism, ensure 'proper decorum',
or avoid 'personal' or derogatory or even defamatory
statements, unless such regulation is the least restrictive
means necessary to achieve a compelling government
interest."
Our cases interpreting art. 16 clearly support this request
for relief. They also do so without any need to survey, as the
parties do, the contested Federal case law distinguishing
limited and designated public forums and the different standards
of review applicable to these forums under the First Amendment.
As this court expressly stated in Walker v. Georgetown Hous.
Auth., 424 Mass. 671, 675 (1997): "We need not decide whether
we would find the [United States] Supreme Court's public,
nonpublic, and limited public forum classifications instructive
in resolving free speech rights under our Declaration of Rights"
in the instant case. Indeed, "we need not enter that fray
because, under our Declaration of Rights, the applicable
standard for content-based restrictions on political speech is
clearly strict scrutiny." Commonwealth v. Lucas, 472 Mass. 387,
21
397 (2015). See Massachusetts Coalition for the Homeless v.
Fall River, 486 Mass. 437, 441-442 (2020) (holding that strict
scrutiny applies to content-based regulation of protected
speech); Bachrach v. Secretary of the Commonwealth, 382 Mass.
268, 276 (1981) ("As a substantial restriction of political
expression and association . . . the legislation at bar should
attract 'strict scrutiny'").12
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. See Opinion of the
Justices, 436 Mass. 1201, 1206 (2002) ("if the applicability of
12As we apply strict scrutiny here, the protection provided
by the State Constitution is at least as great if not greater
than the protection provided by the First Amendment for content-
based governmental restrictions. As noted supra, we are not
confronted with a public meeting limited to a particular item or
items. We recognize that even though a public meeting limited
to a particular purpose may require a content-based restriction
on comments, government must be able to hold such meetings to
function efficiently. Whether the government's right to hold
such meetings satisfies strict scrutiny or some lesser standard
under art. 16, we need not decide. Cf. Rowe v. Cocoa, 358 F.3d
800, 803 (11th Cir. 2004) ("There is a significant governmental
interest in conducting orderly, efficient meetings of public
bodies," which may be done via "confin[ing] their meetings to
specified subject matter"); White v. Norwalk, 900 F.2d 1421,
1425 (9th Cir. 1990) ("the Council does not violate the first
amendment when it restricts public speakers to the subject at
hand"); Smith vs. Middletown, U.S. Dist. Ct., No. 3:09-CV-1431
(D. Conn. Sept. 1, 2011), aff'd sub nom. Smith v. Santangelo,
518 Fed. Appx. 16 (2d Cir. 2013) ("The restriction of public
comment to items on the agenda is also reasonable because it
. . . facilitate[s] the official business of the Council").
22
the bill's requirements can only be determined by reviewing the
contents of the proposed expression, the bill is a content-based
regulation of speech"). As such, it must withstand strict
scrutiny, which means it must be "both 'necessary to serve a
compelling [S]tate interest and . . . narrowly drawn to achieve
that end.'" Lucas, 472 Mass. at 398, quoting Opinion of the
Justices, supra. It is neither. 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.13 As the Supreme Court has
13At the same time, as between members of the public taking
opposite positions, a requirement that the comments be
respectful and courteous appears not to be viewpoint based, but
23
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). See Shurtleff v. Boston, 142 S. Ct. 1583, 1587
(2022) ("When the government encourages diverse expression --
say, by creating a forum for debate -- the [right to free
speech] prevents it from discriminating against speakers based
on their viewpoint"). Although we have not been required to
precisely define what constitutes viewpoint discrimination in
our case law, art. 16, like the First Amendment, certainly does
not permit viewpoint discrimination. See Roman v. Trustees of
Tufts College, 461 Mass. 707, 716-717 (2012); Opinion of the
Justices, 430 Mass. 1205, 1209 (2000).14
A provision "that public officials [can] be praised but not
condemned" is "the essence of viewpoint discrimination." Matal
v. Tam, 582 U.S. 218, 249 (2017) (Kennedy, J., concurring).
Speech that politely praises public officials or their actions
is allowed by the policy, but speech that rudely or
rather only content based. An example would be if a town
official told both sides debating a tax increase to fully
express their views but to do so courteously. Although still
impermissible, because it is content based, the restriction
would not be viewpoint based.
14 The same is true for art. 19.
24
disrespectfully criticizes public officials or their actions is
not. This constitutes viewpoint discrimination.
In sum, this civility code is unconstitutional under art.
16 as well as art. 19.
5. Overbreadth, vagueness, and permissible restrictions.
In the instant case, we have not been asked, nor should we
attempt on our own, to separate the unconstitutional from the
constitutional aspects of the town's civility code. We conclude
that it is so overbroad, so vague, and so subject to
manipulation on its face that it is not salvageable or
severable. See Massachusetts Coalition for the Homeless, 486
Mass. at 447 (statute declared facially invalid under art. 16 in
its entirety because we discerned an "unacceptable risk of a
chilling effect"); Lucas, 472 Mass. at 404 (statute declared
unconstitutional in its entirely because "even under a narrow
construction, there is a genuine risk that the operation of
[statute] will cast an unacceptable chill on core political
speech").
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
25
during the public comment session, and rules preventing speakers
from disrupting others and removing those who do.
6. MCRA claim. We also have no difficulty concluding that
the dismissal of the MCRA claim should be reversed. Taking the
facts in the light most favorable to the plaintiffs, Kolenda
"interfere[d]" with Barron's clearly established constitutional
right under arts. 19 and 16 via "threats, intimidation or
coercion." G. L. c. 12, § 11H. As such, there was a violation
of the MCRA and no qualified immunity.
"To establish a claim under the [MCRA], 'a plaintiff must
prove that (1) the exercise or enjoyment of some constitutional
or statutory right; (2) has been interfered with, or attempted
to be interfered with; and (3) such interference was by threats,
intimidation, or coercion.'" Glovsky v. Roche Bros. Supermkts.,
Inc., 469 Mass. 752, 762 (2014), quoting Currier v. National Bd.
of Med. Examiners, 462 Mass. 1, 12 (2012). In the instant case,
the video recording shows that, first, Barron complained about
the open meeting law violations; then, Kolenda accused her of
slander and said, "[W]e're gonna go ahead and stop the public
comment session now"; next, Barron said, "[Y]ou need to stop
being a Hitler"; and finally, Kolenda ended the meeting and the
audio stopped. Subsequently, Kolenda stood up and started
yelling and aggressively pointing at Barron. The plaintiffs'
complaint alleges that Kolenda shouted, "You're disgusting," and
26
threatened to have her "escorted out" of the meeting. The video
recording does not show Barron after the end of the audio
portion.
Taking the facts, including the video recording, in the
light most favorable to the plaintiffs, Barron exercised her
constitutional right under arts. 19 and 16 to address the
meeting of the board and complain about the open meeting law
violations. Her 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. 16.15
15We note that personally insulting comments may rise to
the level of fighting words, that is, "face-to-face personal
insults that are so personally abusive that they are plainly
likely to provoke a violent reaction and cause a breach of the
peace," which are not protected speech. O'Brien v. Borowski,
461 Mass. 415, 423 (2012). See also Cohen v. California, 403
U.S. 15, 20 (1971) (fighting words are "personally abusive
epithets which, when addressed to the ordinary citizen, are, as
a matter of common knowledge, inherently likely to provoke
violent reaction"). We have also explained that "the fighting
words exception [to free speech] is 'an extremely narrow one.'"
O'Brien, supra, quoting Johnson v. Campbell, 332 F.3d 199, 212
(3d Cir. 2003). We further emphasize that elected officials are
expected to be able to respond to insulting comments about their
job performance without violence. See Commonwealth v. Bigelow,
475 Mass. 554, 562 (2016) ("personal insults and allegations
concerning [selectman's] alleged criminal past" were
"constitutionally protected political speech" because "central
thrust is criticism of him as a selectman"). Although not
presented in the instant case, we recognize that fighting words
from one public speaker may trigger a disturbance from another
27
In addition, the plaintiffs' allegations plausibly suggest
that Barron's rights were interfered with via threats,
intimidation, or coercion. Kolenda's response is not fully
captured by the video recording, but, accepting the plaintiffs'
account as true, Kolenda told Barron to stop speaking, started
screaming at her, and threatened to have her removed from the
meeting in response to her protected speech. If this is proved
at trial, she could establish a violation of the MCRA. See
Batchelder v. Allied Stores Corp., 393 Mass. 819, 823 (1985)
("sufficient intimidation or coercion" where "security officer
ordered [plaintiff] to stop soliciting and distributing his
political handbills"); Sarvis v. Boston Safe Deposit & Trust
Co., 47 Mass. App. Ct. 86, 93 (1999) (third element of MCRA
satisfied where "defendants attempted to interfere with the
plaintiffs' right to a summary process hearing by threatening
them with arrest and then bringing about their arrests").
On the facts alleged, Kolenda is also not entitled to
qualified immunity. As we have explained: "[G]overnment
officials performing discretionary functions, generally are
shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
member of the public, which may require action by government
officials.
28
known." LaChance v. Commissioner of Correction, 463 Mass. 767,
777 (2012), S.C., 475 Mass. 757 (2016), quoting Rodriques v.
Furtado, 410 Mass. 878, 882 (1991). More specifically, "[a]
right is only clearly established if, at the time of the alleged
violation, 'the contours of the right allegedly violated [were]
sufficiently definite so that a reasonable official would
appreciate that the conduct in question was unlawful.'"
LaChance, supra, quoting Longval v. Commissioner of Correction,
448 Mass. 412, 419 (2007). Nevertheless, "it is not necessary
for the courts to have previously considered a particular
situation identical to the one faced by the government
official." Caron v. Silvia, 32 Mass. App. Ct. 271, 273 (1992).
"It is enough, rather, that there existed case law sufficient to
clearly establish that, if a court were presented with such a
situation, the court would find that the plaintiff's rights were
violated." Id., quoting Hall v. Ochs, 817 F.2d 920, 925 (1st
Cir. 1987). In the instant case, the contours of the rights are
sufficiently clear, and a reasonable public official would
understand that his response to the exercise of those rights was
unlawful.
As discussed supra, the "full and free" discussion in town
meetings protected by art. 19 has a long and distinguished
history in Massachusetts. Fuller, 224 Mass. at 178. It is also
well established that restrictions on the content of political
29
speech must be "necessary to serve a compelling [S]tate interest
and . . . narrowly drawn to achieve that end" to satisfy the
requirements of art. 16, Opinion of the Justices, 436 Mass. at
1206, and that viewpoint discrimination is absolutely
prohibited, Rosenberger, 515 U.S. at 829.
At a public comment session in a meeting of the board, a
resident of the town thus clearly has the right to accurately
complain about violations of law committed by town officials and
object to other town actions, including its spending practices,
and to express her views vehemently, critically, and personally
to the government officials involved. Such a right is clearly
protected by art. 19 as well as art. 16 for the reasons
discussed supra. When a government official responds to a
resident's exercise of those rights by accusing her of
slandering the board, screaming at her, and threatening her
physical removal, it should be clear to him that his conduct is
unlawful. Thus, there is no basis for qualified immunity.
Conclusion. The order of judgment on the pleadings is
reversed, and the case is remanded for further proceedings
consistent with this opinion, including entry of a judgment
declaring that the town's public comment policy is
unconstitutional.
So ordered.