[Editor’s Note: Full disclosure — one of the plaintiffs in this case is a current advertiser on this site.]
On Wednesday, the Supreme Judicial Court of Massachusetts heard arguments in a case filed by three Southborough residents against the Southborough Select Board. (You can watch the video here.)
For close to 40 minutes the Justices questioned in turn the plaintiff’s attorney’s claims and the Town’s defense. I’m recapping the highlights.
At the heart of the case are claims that when former Selectman Dan Kolenda used the Board’s comment guidelines to cut off public comments by Louise Barron, he and the Board violated her free speech protections and civil rights under the state constitution.
Addressing the court on Wednesday, Plaintiff’s Attorney Ginny Kremer argued allowing the Town’s policy to stand would have a chilling effect on free speech, including the public self-policing their comments.
Special Counsel for the Town, John Davis, claimed that a ruling against the Town would make Barron’s Hitler remark “the floor”. That would lead to the public making even worse remarks at public meetings, pointing to Barron v Southborough as their defense.
My (non-expert) reading of the Justices’ overall questions and arguments was that they were leaning against the Select Board’s policy and Kolenda’s conduct. But there were some legal questions and precedent references for them to further consider that could lead them in a different direction. And whether they believed Board’s actions qualified as a violation of Barron’s civil rights was less clear.
Many readers may be familiar with the general facts of an incident at the December 4, 2018 Select Board meeting. But the specifics were important during the Justices’ questioning. So here’s a recap.
At the end of the meeting, Barron spoke during public comment. In her remarks, she raised the Attorney General’s Office finding that the Select Board had multiple violations of Open Meeting Law related to posting of minutes.
Barron referred to members’ defense that they were doing the best they could and stated, “that is not the best you can do. . . I know it’s it’s not easy to be volunteers in town. But breaking the law is breaking the law.” Acting Chair Dan Kolenda interrupted, “So, ma’am, if you want to slander town officials who are doing their very best”. In an overlapping exchange, she rebutted, “I’m not slandering”, as he stated “then we’re gonna go ahead and stop the public comment session now.”
That was followed by a heated exchange in which Barron referred to Kolenda as “being a Hitler” and he subsequently yelled at her after the mics were cut and he appeared to believe the video had stopped. According to the court filings, during the exchange, Kolenda threatened to have Barron removed. (I posted links to the video in the comments below this post.)
In 2020, Barron, her husband and another resident filed a civil suit against Kolenda and the Board. You can read more about the claims and the Worcester Superior Court findings in favor of the Town here. The plaintiffs filed an appeal.
In May, the Mass SJC took up the appeal of the 2020 lawsuit, and publicly solicited amicus briefs on the Town’s right to enact a policy that states “All remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal or slanderous remarks”.
During Plaintiff’s arguments, Justice Frank Gaziano asked Kremer if she believed any civility codes were constitutional. She responded that as written and applied, it violates free speech allowed under the state’s constitution. She stressed that it is “standardless and invites the use of content based restrictions by public officials” avoiding criticism. She noted that past cases showed officials “need to be prepared for caustic and offensive criticism”.
Gaziano asked if that meant her client should have been able to speak if she opened “with hateful references to Hitler”. Kremer countered by asking if her client should be shut down for opening with “You are behaving like a fascist dictator” or calling an official a criminal for violating the law.
Gaziano pressed Kremer on her free speech “absolutism”, asking her to identify where a line would be drawn. She never directly answered whether it’s allowable to call an official a pedophile. Responding to a question about “fighting words”, she clarified that inciting “imminent violence” can be prohibited.
Later Kremer argued that the state has always “left open” that free speech in the state constitution is “more expansive” than the federal 1st amendment. She followed that she believed the policy was unconstitutional on its face and as applied. Justice David Lowy noted that she would win if it was even “just as applied”. Kremer responded yes, and on that she closed her case.
When Davis opened his remarks for the defense, Justice Dalila Argaez Wendlandt asked him to first focus on Kolenda’s application of the policy. She asked how shutting down a resident voicing concerns about budgets and open meeting law violations didn’t violate free speech rights.
Davis defended that the Town has a right to reasonably restrict speech as not to disrupt the purpose of the forum. He said the courts allow officials to conduct an orderly and efficient meeting. Justice Scott Kafker rebutted that her comments were in keeping with the purpose of the meeting. He scoffed at referring to Barron’s remarks as slander or even rude when she accurately referenced the Attorney General’s findings that the Board repeatedly violated Open Meeting Law.
Davis tried to claim that Kolenda was justified because he “pulled the plug” after Barron called him a “vile epithet”. Several Justices took issue, stating that he clearly cut off comments prior to the Hitler remark. In a back and forth, Justice David Lowy told Davis that he wasn’t entitled to his own facts. Davis apologized but continued to speak throughout his time as if Barron’s Hitler remark was what prompted cutting off comments.
Kafker shifted the focus to the “facial” finding of the policy, which he found more difficult. He said that requiring speech to be respectful, courteous, and free of rude, personal or slanderous remarks was “a lot”. He questioned if the Declaration of Independence would violate the provision.
Davis defended that the lower court agreed but allowed the language based on the document “as a whole”. He claimed that later provision against disruptive behavior allows it.
In their questions, both Kafker and Wendlandt indicated that they could see limiting disruptive conduct like shouting and using obscenities. But they opined that rude, personal and slanderous were based on the viewpoint of the listener. They foresaw that residents who said supportive things about the board would be allowed to speak while those critical of their actions could be prohibited from speaking.
Davis again defended that referring to someone as Hitler ends the conversation. Wendlandt rebutted, “But so does closing the public meeting”.
The arguments turned to whether threatening to have Barron ousted from the meeting violated her civil rights. Some of the factors debated included that the threat did occur after Barron called Kolenda “a Hitler”, whether the Open Meeting Law allowances for that were relevant if officials’ other actions were unconstitutional, and if there were legal precedents about qualified immunity for public officials.
During Kremer’s arguments, she said immunity wasn’t mentioned by the lower court and she wasn’t sure it was appropriate at this juncture. Davis later stated that the court had set precedent on qualified immunity in Duarte vs Healey. [Note: That case summary doesn’t relate to a free speech case but does state “the court concluded that the state legislature intended to adopt a standard of qualified public officers with respect to their discretionary functions as developed by the United States Supreme Court under the Federal Civil Rights Act”.]
There was also questioning during Kremer’s arguments as to whether the court needed to resolve if the comment was in a public forum or “non-traditional forum”. Kremer claimed the arguments were irrelevant. She opined that although the public comment was referred to as a time for residents to speak, the policy didn’t limit the forum to residents and made other references to the public.
Updated (11/22/22 8:39 am): It was suggested to me that I should include links to the video of the incident on 12/4/18. I had originally tried but they kept malfunctioning due to formatting issues. However, they do work in the comments section – so I pasted them there.