Amicus Briefs filed with Mass Supreme Court on Select Board comment policy

Four briefs have been filed weighing in on residents' appeal of Barron V Kolenda and the constitutionality of a Town policy limiting what is allowed during public comment in meetings.

The Mass Supreme Court will consider arguments about the constitutionality of the Southborough Select Board’s Comment Policy. Four friends of the court briefs have been filed weighing in on questions related to a resident’s 2020 lawsuit against the Board. 

The ACLU, is among those arguing that the Town’s policy violates free speech under the state constitution. The Mass Association of School Committees is among those defending such policies as necessary.

In 2021, three residents lost the civil case, Barron v. Kolenda, against the Select Board and a former member. The residents subsequently filed an appeal. In May, the case (SJC-13284) was selected for review by the Mass Supreme Judicial Court. That month, they solicited amicus briefs:

In a case involving a facial challenge to the constitutionality of a policy adopted by Southborough board of selectmen entitled “Public Participation at Public Meetings,” which provides, inter alia, that “[a]ll remarks must be respectful and courteous, free of rude, personal or slanderous remarks,” whether the public comment segment of the board’s meeting is a traditional, designated or limited public forum; whether the board’s “Public Participation at Public Meetings” policy is a constitutional, permissible prohibition on speech.

My understanding is the briefs are a way for the court to receive outside legal arguments that may influence their thinking on an issue from parties not directly involved in the case but who may care about the issues and precedent a case may set. (Often filings are made by advocacy organizations.)

Two briefs argue against the ruling made by the Worcester Superior Court in favor of the Town. One argues in support. Though a fourth argues against overturning the decision, it appears to seek middle ground. The Massachusetts Municipal Lawyers Association (MMLA) asks the court to provide clarity for municipal officials.

Amicus Brief Highlights

The brief from The American Civil Liberties Union of Massachusetts introduces:

The freedom to express criticism to and about public officials is foundational to our form of government. It separates us from totalitarian regimes. Its preservation is always vital, but never more than when faith in government may be at an ebb. The Southborough “Public Participation” Policy is facially unconstitutional. It imposes a “civility” code applicable solely to “remarks and dialogue” and “language” in portions of public meetings specifically created for input from members of the public. It allows public servants to censor criticism from those to whom they are accountable merely because they do not want to hear it. It was used in this case to silence a recognized speaker solely because she criticized the Select Board and its Chair. The Policy should not be allowed to stand.

Supporting that viewpoint is a brief from PioneerLegal. (The firm describes itself as a nonprofit, nonpartisan public interest law firm “that defends and promotes educational options, accountable government and economic opportunity across the Northeast and around the country.”)

They argue:

SOUTHBOROUGH’S POLICY IS INCONSISTENT WITH FUNDAMENTAL POLITICAL SPEECH RIGHTS. . .

  • The Policy is undoubtedly a content and viewpoint-based restriction on political speech
  • Under the Declaration of Rights, content and viewpoint based restrictions on political speech are presumptively invalid and are subject to strict scrutiny
  • The Policy is unconstitutional because it is not necessary to serve a compelling state interest, nor is it narrowly drawn to achieve that end.

The firm concludes that the Apellate Court should reverse the SJC decision and “remand this matter for further proceedings. ”

Arguing in favor of the Superior Court’s ruling, Massachusetts Association of School Committees writes:

Even though the Open Meeting Law does not require a “public comment” session, committees offer these opportunities to obtain this important feedback. The majority of citizens who attend the meetings of amicus’s members do so in a civil manner and express their views and opinions on the issues vigorously without resorting to disruptive conduct and speech. But increasingly there are some who see an opportunity for ad hominem vituperation and active interference with the orderly transaction of school district business.

A decision that reverses the judgment of the Superior Court would confront school committees with a choice between two equally poor options. Either they must hold public comment sessions unarmed with reasonable tools to ensure that their meetings are orderly, efficient and productive, or they must forego the sessions altogether so that the meetings facilitate the transaction of vital school business. Neither result is remotely in the public interest.

Massachusetts Municipal Lawyers Association concludes:

MMLA urges this Honorable Court to provide necessary, helpful direction to the volunteers who serve on the thousands of Boards and Commissions across the Commonwealth, while affirming the judgment entered on Count VI, which asserts a declaratory judgment as to the constitutionality of the policy on its face.

Within the brief the MMLA writes:

In a limited public forum, the right to free speech must be balanced against the interest the government has in conducting the day to day business of providing programs and services to the public. . .
small municipal boards, operated by volunteers on a Tuesday night without the benefit of Town staff or counsel available for immediate advice deserve as much clarity and guidance as possible with respect to a rule where the wrong decision could deprive someone of a deeply held constitutional right. When a public meeting devolves into chaos as a result of an irate resident butting heads with a green volunteer, guidance from this Court is necessary to provide a beacon for what are often split second, heat of the moment choices made by a chair of a local commission. Barbs, insults, slings and arrows may all be constitutionally sanctioned forms of critique, but members of City and Town boards must be able to trust that they have the ability to control the situation in order to conduct business when tempers flare.

Lawsuit background

The initial suit was filed in 2020 against former Selectman Dan Kolenda and the Board. The action stemmed from Kolenda’s treatment of Louise Barron at a December 2018 meeting. Angered by statements she was making about the board he cut off her public comment.

The lawsuit included claims about abusive comments and improper handling of minutes. But the main argument that appears to have caught the SJC’s special attention was that the board’s public comment policy is unconstitutional.

Kolenda had used the policy to justify cutting off Barron’s angry comments to the board. The policy includes:

All remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal or slanderous remarks.

The suit included a request for a Declaratory Judgement by the Court that the board’s comment policy for public meetings is unconstitutional.

The Superior Court found against the plaintiffs in the case. She did make a declaration about the comment policy, but fell short of the plaintiff’s request. The plaintiffs filed an appeal. You can read more details about that here.

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Kelly Roney
1 month ago

Public meetings and public comment can be moderated for sake of having a fruitful dialog, right? I don’t think public officials are required to listen to hateful or disparaging speech, even from constituents.
It’s nonetheless possible that Mr. Kolenda’s implementation of the policy was Constitutionally defective. If I recall correctly, he moved to shut Ms. Bannon’s comments down before she called him a Nazi. It seems to me that both were out of line.

Rebecca Deans-Rowe
1 month ago
Reply to  Kelly Roney

Totally agree, Kelly. Public discussion must have some reasonable limits. We can’t devolve into rude, personal attacks and the discussion can’t go on indefinitely.

Kelly Roney
1 month ago
Reply to  Kelly Roney

Yes, my memory was correct. Louise Barron’s out-of-bounds Hitler comment came after Chair Dan Kolenda started moving to shut off public comment after a scant couple of minutes. See https://www.youtube.com/watch?v=lF6GQafHGL8&t=9342s.
Mr. Kolenda’s stated reason for shutting off comment was slander, after Ms. Barron accused the Board of having broken open meeting law. Since truth is an absolute defense against accusations of slander, he was plainly wrong to do so.
Does this act make the policy unconstitutional? Absent a pattern of abuse of the policy to discriminate against a specific point of view, I don’t think so. (I’d remove slander from the list of prohibitions, since there’s already a potent remedy against true slander, but that’s just my preference, not anything I’d claim is Constitutionally required.)
My worry is that the SJC will rule the policy unconstitutional and that the Select Board will respond by eliminating public comment altogether. It’s under no legal obligation that I’m aware of to take the public’s comments in its meetings.
That might leave no option but the proposal of further advisory articles, despite John Butler’s concerns, by which the town’s legislature, Town Meeting, might advise our executive, the Select Board.
Like Michael Weishan below, I’m looking for a responsive town government, one that takes citizen input more frequently than just at election time.

Michael Weishan
1 month ago

First off, I would like to say it’s nice to see a little commentary returning to this blog with real people willing to publicly stand by their opinions.
I have always commented here with my name attached, and I think that matters.
Regarding Barron vs. Kolenda, this is entirely revealing of the attitude of the BOS in regards to the public over the last decade. I have experienced Dan Kolenda’s bullying myself: as acting BOS chair back in 2018, Kolenda used an entirely fake “chair’s privilege” to refuse to recognize anyone in the audience (some 20 people) there to advocate for my reappointment to the Historical Commission. This was entirely illegal. The meeting still exists on video, and I hope it is considered in the Barron’s case going forward. Had I had the time, money, and connections, I would have filed an amicus brief supporting the Barrons.
Moving forward, we need to acknowledge that something has been seriously awry in our town government throughout the Kolenda/Healey/Braccio regimes, and we the voters need to step up soon, or surrender. There is an incredible hubris in the Town House, headed by Mark Purple, that barely deigns to consider us peons. Again and again, the “Select” Board acts against vast public outcry. I find it highly illuminating that people like I, the Barrons, Al Hamilton et alii, who are completely on the opposite ends of the national political spectrum, find ourselves again and again allied in various causes here in Southborough. Despite our differences, we all agree that when we enter the doors of the Town House, civility and respect for others takes precedence—not by dictate, but by honored custom—and those who don’t wish to abide by that tradition are NOT welcome in our town government.
All we need now going forward is respectful, responsible and RESPONSIVE government by our “Select” Board.
Let’s see if we get it.
Two seats are up in May.

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