Supreme Judicial Court Rules That Select Board’s Civility Policy for Public Comment Sessions Violates the Massachusetts Declaration of Rights

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.