The U.S. Supreme Court has agreed to review two apparently conflicting lower court decisions involving the question whether public officials are acting in their capacity as government officials when they block critics on their personal social media accounts. If so, this would implicate the First Amendment of the U.S. Constitution, which protects the right of free speech from governmental action. Social media websites like Twitter and Facebook are, for many, a principal source for learning about current events and engaging in debates. Unsurprisingly, public officials rely on social media both to promote their campaigns and to communicate with the public. Although social media can be a powerful tool for constituents to provide public officials with feedback, the rights of social media users to access and respond to posts by public officials on their private accounts have not been well defined. The issue is now before the Supreme Court in two different lawsuits: O’Connor-Ratcliff v. Garnier, decided by the U.S. Court of Appeals for the Ninth Circuit, and Lindke v. Freed, decided by the U.S. Court of Appeals for the Sixth Circuit.

In O’Connor-Ratcliff, two members of a southern California school board created public Facebook and Twitter pages to promote their campaigns for office. After they won and assumed office, the two used their public social media pages to inform constituents about developments at the School District, to invite the public to Board meetings, to solicit input about Board decisions, and to communicate with parents about issues of safety. Two parents of children in the district frequently left critical comments, sometimes posting the same long criticisms. The board members eventually blocked the parents from their social media pages. According to the Court of Appeals, even assuming the board members were attempting to enforce a content-neutral rule against repetitive comments, the decision to block was not sufficiently tailored to a significant governmental interest. Thus, the court ruled that the actions of the board members constituted government action, and that they violated the parents’ First Amendment rights by blocking them from their social media pages.

In contrast the Court of Appeals in Lindke v. Freed concluded that a city manager did not violate a constituent’s First Amendment rights when he blocked the constituent from posting to his Facebook page. In that case, the constituent had posted a series of comments criticizing the city manager’s COVID-19 policies. The court explained that the city manager used his page to make a variety of posts both reflecting his personal life and updates about some of the administrative directives he issued as city manager. Moreover, he did not operate his page to fulfill any actual or apparent duty of his office, nor did he use his governmental authority to maintain it. Thus, the city manager was acting in his personal capacity – and there was no state action.

Until the issue is addressed there remains significant uncertainty as to whether public officials may block individuals from their private accounts when those accounts have been used to discuss official duties. While O’Connor-Ratcliff and Lindke remain pending, public officials are advised to proceed with caution when managing their private social media platforms.

We have attorneys with experience in a wide range of issues that arise under the First Amendment and under its analogue in the Massachusetts Declaration of Rights. We are happy to address any questions that our governmental clients may have.

This update is provided for informational purposes only and should not be considered legal advice.

On March 30, 2023, the Supreme Judicial Court issued a decision that clarifies a public employer’s bargaining obligations under G. L. Chapter 150E in the context of a public health emergency – here, the rapid onset of the Omicron variant of COVID-19 in late 2021. In Boston Firefighters Union, Local 718 v. City of Boston, No. SJC -13347, the court upheld the City’s decision to mandate vaccination of its employees in December 2021 and to engage in expedited impact bargaining. In doing so, the court reversed and vacated an injunction granted to three of the City’s unions by a single justice of the Appeals Court after the injunction had initially been denied by a Superior Court justice.

The City entered into a testing regimen with its unions in Fall, 2021. In mid-December 2021, however, confronted by the rapidly emerging and highly infectious Omicron variant, and based on the expert input of the City’s Public Health Commission, the Mayor issued a vaccine mandate requiring that City employees be vaccinated. At the same time the City initiated impact bargaining on an expedited basis. Three City unions, however, commenced unfair labor practice proceedings in the Department of Labor Relations, alleging that the City had violated its bargaining obligations and had repudiated testing MOAs. Simultaneously, these three unions sought a preliminary injunction in the Superior Court to prevent enforcement of the vaccine mandate. After hearing, that court denied the injunction in January 2022, holding that the unions had failed to establish the required elements of irreparable injury, a favorable balance of harms, and that an injunction was in the public interest. The unions sought relief from a single justice of the Appeals Court. On February 15, 2022, the single justice entered an injunction, ruling that the unions had shown a likelihood of success on the merits of their claim that the City had violated its bargaining obligations; that they had shown irreparable injury because mandatory vaccination would infringe employees’ rights to bodily integrity; and that the public interest was served by an injunction. The City appealed and on its own initiative the SJC assumed direct review of the appeal.

In its decision, the court first addressed whether the unions had a likelihood of success on the merits. The court decided that the City had no obligation to bargain the decision to require vaccination, holding:

Given the unique circumstances of the COVID-19 pandemic and its threat to the health and safety of the public, the decision to remove the testing alternative in the defendants’ COVID-19 policy constituted a nondelegable policy decision that could not be the subject of decision bargaining because any such requirement would have impinged directly on the defendants’ ability to provide essential public safety services to city residents.

Next, the court rejected the unions’ claim that the City repudiated the testing MOAs. Noting that there was no “express language” barring the City from deciding to require vaccination in the future, the court added that “any agreement to mandatory collective bargaining on an issue of public health and safety, in light of the emergency of the Omicron variant of COVID-19, likely would not have been enforceable” because the City could not bargain away its nondelegable duty to protect the public health.

Finally, regarding the City’s impact bargaining obligation the court held that “[e]xigent circumstances permit an employer to set a deadline for concluding impact bargaining and implementing a change in the conditions of employment, so long as the employer continues to bargain over the impacts”. The court validated the City’s claim “that the exigency of the COVID-19 pandemic necessitated the swift removal of the testing alternative to mandatory vaccination against COVID-19”. The sole limitation on this ruling was an ancillary issue left pending in the DLR, i.e., whether the City’s initial three-week deadline was “reasonable and necessary”.

The court also ruled that the decision by the single justice was an abuse of discretion regarding the other elements required for an injunction. The court first rejected the finding of “irreparable injury” to employees. It stated “[w]hile the circumstances giving rise to the threat of discharge from employment were extraordinary, i.e., the COVID-19 pandemic and mandatory vaccination against COVID-19, …,: the harm to the plaintiffs — the loss of employment — is still economic, …, as they could have continued to refuse to become vaccinated and instead challenged the decision both in court and before CERB.” Second, the court held the unions failed to show that the balance of harms favored them or that the injunction was in the public interest. It held that “the potential harm to the city and the public resulting from the spread of COVID-19 clearly outweighed the economic harm to the employees”.

The SJC’s decision is an important clarification of a public employer’s bargaining obligations in the context of a public health emergency. It also illuminates the standard to be applied for determining irreparable injury where employees seek relief enjoining an employment action.

VDH attorneys John Foskett, Robert Hillman, and Ann Marie Noonan represented the City in this case. If you have any questions about the content of this update, please contact us. We are pleased to assist public employers in all matters related to collective bargaining.

This update is provided for informational purposes only and should not be considered legal advice.

On March 29, 2023, Governor Maura Healey signed into law a bill that extends the temporary provisions pertaining to the Open Meeting Law through March 31, 2025.

Specifically, this extension allows public bodies to continue holding meetings remotely without a quorum of the public body physically present at a meeting location. Public bodies that meet remotely must still provide “adequate, alternative” access to remote meetings. In prior guidance, the Office of the Attorney General explained that this requirement is met by any technology that provides public access to a meeting in real time, whether it be by telephone, internet, or satellite enabled audio or video conferencing.

This extension was included in the Governor’s supplemental budget and did not include any substantive changes to the Open Meeting Law other than extending the expiration of the temporary provisions regarding remote meetings from March 31, 2023 to March 31, 2025.

If you have any questions about the content of this update, please contact us. We are pleased to assist public bodies in all matters relating to the Open Meeting Law.

This update is provided for informational purposes only and should not be considered legal advice.

On March 7, 2023 the Supreme Judicial Court issued a decision in Barron v. Kolenda, No. SJC-13284. The decision held that a policy of the Southborough Select Board that imposed civility requirements on speakers at the Board’s public comment sessions during its open meetings violated two provisions of the Massachusetts Declaration of Rights – Article 19, which protects the right of assembly, and Article 16, which protects the right of speech. The court’s decision adds some – but not complete – clarity to what municipal boards and school committees can and cannot do in controlling speakers at their public comment sessions.

The policy invalidated by the court required that “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” and that “[a]ll 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.”

During the public comment session in question, after the speaker accused the town of “spending like drunken sailors” and stated “you’ve still broken the law with open meeting law, and that is not the best you can do”, the Chair responded “if you want to slander town officials … then we’re gonna go ahead and stop the public comment session now”. The speaker then stated “you need to stop being a Hitler …You’re a Hitler. I can say what I want”, at which point the Chair ended the session.

Reviewing the text, history, and prior construction of Article 19, the court held “[t]he content sought to be prohibited [by the policy] -–discourteous, rude, disrespectful, or personal speech about government officials and governmental actions — is clearly protected by art. 19, and thus the prohibition is impermissible.” Regarding Article 16, the court refused to apply the “forum analysis” that is used by federal courts interpreting the First Amendment speech right. That analysis decides the applicable rules in the context of whether or not a “limited public forum” is involved. Instead, the Barron court applied a standard of “strict scrutiny”. Because the policy targeted “political speech” and was “content based”, the court examined what was said. It decided that “[s]peech that politely praises public officials or their actions is allowed by the policy, but speech that rudely or disrespectfully criticizes public officials or their actions is not”; that this is “viewpoint discrimination”; and that the policy violates Article 16.

The court indicated certain types of restrictions that would comport with the Declaration of Rights. It noted that “[r]easonable 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 during the public comment session, and rules preventing speakers from disrupting others and removing those who do.”

In addition, the court observed that “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”. It made the same observation with respect to Article 16’s speech right (although declining to decide whether a public comment session limited to specific topics would be evaluated by “strict scrutiny”).

The court expressly reserved – without deciding – the question whether a constitutional policy can bar “slander” by speakers at a public comment session.

Finally, the court did not address the fact that these public comment sessions are not required by the Open Meeting Law and are generally sessions that are voluntarily added by boards and committees to their meetings.

As a result of this decision, certain things are clear:

• A speaker cannot be barred from engaging in “disrespectful”, “rude”, or “personal” speech directed at public officials;
• The board/committee cannot treat speakers differently from each other based on their views or on how those views are expressed;
• The board/committee can impose reasonable time limits for the entire session and for each speaker. The court did not prescribe amounts but an overall limit of 10-15 minutes and 3 minutes for each speaker is just one example of what appears to be reasonable;
• Speakers can be barred from engaging in dialogue with the board/committee; from interrupting or interfering with other speakers; from engaging in physical conduct; and from engaging in speech that threatens violence or incites imminent unlawful conduct by others.

In addition, it seems clear that the board/committee should be able to limit a public comment session to specified topics, such as matters that are within the body’s jurisdiction or matters that are on the posted agenda.

It also may be appropriate – with the caveat that this was not addressed in Barron – to limit participation in these sessions to residents/those attending the district’s schools.

As noted, whether a board/committee must hold these sessions at all was not addressed by the court. So long as other means are available for the public to communicate their views to the body, such as by sending emails to a specified mail address or by delivering written comments to the body at its meetings, a board/committee should be free to decide not to add these sessions (unless a local charter or by-law requires them). More clarity on this issue would be useful.

Also as noted, the court expressly chose not to decide whether a policy can bar speakers from engaging in “slander”. Care should be exercised in any policy that proscribes slander because of the legal doctrines that limit the reach of slander regarding public figures, including officials.

Barron does not specifically address whether a constitutional policy can bar the use of obscene or profane language. (The invalidated policy barred “inappropriate” language and, while the court did not focus on that aspect, the term would appear to be impermissibly vague). This is of special concern for school committee meetings, some of which have students and families in attendance or making presentations.

Obviously, the Barron decision has left certain questions for further development by the courts. It is essential that boards/committees act carefully and obtain legal advice in crafting rules for these sessions that comply with the Declaration of Rights but also serve the public body’s need to conduct its required business in an efficient, orderly, and productive manner.

If you have any questions about the content of this update, please contact us. We are pleased to assist public bodies in all matters related to the regulation of speech and related rights exercised by citizens.

This update is provided for informational purposes only and should not be considered legal advice.