Responses to SJC Ruling on Select Board comment policy

Attorneys, a plaintiff, and the ACLU are among those speaking out in reaction to this week's decision by the Mass Supreme Judicial Court on Southborough's public meeting comment policy

Today, I received a press release from the Mass chapter of the ACLU (American Civil Liberties Union). They are advising how towns should address this week’s ruling by the state’s Supreme Judicial Court on policies for comment in public meetings.

This should especially interest our Town, since (as I posted on Tuesday) Southborough’s “unconstitututional” policy was the focus of the ruling.

The advocacy group is just one of the parties linked to the case whose public reactions I’m sharing.

The Mass Supreme Judicial Court’s finding focused on a sentence in the policy adopted by the Select Board in 2017 that requires “All remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal, or slanderous remarks”.

The decision issued Tuesday went further than just making a statement about the policy, also remanding the case Barron v. Kolenda (and the Southborough Select Board) back to Worcester Superior Court. On Tuesday night, Town Administrator Mark Purple told the Select Board that their attorney was reviewing the decision and would get back to them. (In the meantime, the comment policy is still posted on the Town’s website.)

As I wrote about the ruling, the Town is still allowed to restrict the timing and length of comments, just not the rudeness of content. Comments on the blog have speculated about the possibility of boards and committees eliminating public comment from their meetings as a result.

The concern is consistent with a statement from the Town’s defense counsel John J. Davis, quoted by the Boston Globe:

“Unfortunately, the Supreme Judicial Court’s decision elevates the public’s unfettered right to express their views above local governments’ significant and legitimate interests in conducting the important business of cities, towns and public school districts in an efficient and orderly manner,” Davis said in a statement.

“Ironically, because governmental bodies need not place public comment sessions on their agendas in the first place, today’s decision will lead to less free speech not more, as public comment sessions may soon become a thing of the past,” Davis said.

That is the kind of reaction the ACLU of Massachusetts is trying to head off. A press release on the topic promotes:

Public meetings can be efficient, orderly, and open for public comment after SJC free speech ruling

Prior to oral arguments, the court publicly sought amicus briefs. The ACLU had filed a brief urging the court find against the Town’s comment policy. Today, they delivered a letter to two organizations that had filed briefs seeking the opposite outcome — the Mass Mass Municipal Lawyers Association and the the Massachusetts Association of School Committees. (You can read about all of the amicus briefs here.)

The ACLU’s press release explains their viewpoint expressed in the letter:

Ending public comment periods altogether in response to this decision would raise serious constitutional questions, according to the new ACLU letter. In light of the Court’s analysis, there is strong reason to believe that eliminating public comment sessions could violate Articles 16 and 19 of the state’s Declaration of Rights, as well as the First Amendment to the U.S. Constitution. 

Public bodies have many tools that are consistent with the Court’s decision to continue public comment sessions and ensure meetings are orderly. In 2019, the ACLU of Massachusetts represented two mothers in a case against the Natick School Committee after the women were shut down while expressing concerns about the operation of the Natick Public Schools during a “Public Speak” session. After a court ruled that this violated free speech rights, the Natick School Committee adopted a policy that honored free speech and ensured a process for orderly meetings.  

You can read the full press release here and the letter here.

The lawyers aren’t the only ones publicly reacting to the ruling. An article by the Telegram included an interview one of the three plaintiffs in the case filed by Louise Barron (the resident who was silenced) and her husband, along with neighbor Arthur St. Andre:

Jack Barron said his wife was ecstatic and felt vindicated when she heard the news that the Supreme Judicial Court ruled in her favor. He added that he hopes Louise Barron will resume her public advocacy in the town at some point, which she withdrew from following the confrontation. . . 

“Many, many thousands of Americans have given their lives for these freedoms of speech and civil rights and First Amendment rights,” Barron said. “All we had to do was go to court and pay for it. So that’s a lot easier than losing your life.”

The article contains more interesting context from their attorney Ginny Kremer. She pointed to the same prior case cited by the ACLU, on the Middlesex Superior Court’s ruling that had found against a Natick School Committee’s policy that regulated against speech content. She said that many towns changed their policy as a result of the ruling (issued in 2018), but not ours:

“Instead of admitting that the actions were not defensible, they doubled down and not only sought to defend Mr. Kolenda’s actions, but actually moved to dismiss the whole case, and they won that in front of the Superior Court,” Kremer said.

The Globe story also quoted the Town’s counsel as warning about another potential unintended consequence from the ruling:

“Moreover, in light of the Court’s unduly narrow interpretation of what qualifies as disruptive behavior, unpaid citizens, after today, will no doubt be less likely to volunteer to serve on local boards, committees and commissions.”

In contrast, the Telegram quotes Kremer as stressing that a different outcome would have resulted in a “chilling effect” on state residents’ free speech:

“To know that if you go to voice your concerns and criticisms, you could be shut down, humiliated and thrown out.”

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Kelly Roney
1 year ago

Dan Kolenda was clearly out of line when he shut down Louise Barron. She wasn’t yelling, and what enraged him was that she had mentioned the Select Board’s known violations of the Open Meeting Law. He called that slander, but any lawyer worth listening to knows that truth is an ironclad defense against his charge.

I don’t think Ms. Barron violated the comment policy at all, which never seemed to be about content restriction to me. The SJC disagreed. Despite what the ACLU may say, I think the result will be less opportunity for citizens to exercise their First Amendment rights. I think the SJC failed to recognize the distinction between the right to speak and the non-existent right to be listened to. If you’re on a town government board and someone starts yelling at you, you can simply leave the room, and the SJC can’t require you to stay.

Tim Martel
1 year ago

A true case of “be careful what you wish for.”
Given how difficult it is to find competent adults to volunteer to serve the Town, and how dangerous even a slight error in judgement could now become for them in our court system, I couldn’t fault any Chair for removing “public comment” from agendas moving forward. Or at least until our lawmakers fix this mess that the courts have created.
None of the above should be taken as an opinion about the specific merits of the case itself.

Michael Weishan
1 year ago
Reply to  Tim Martel

I highly doubt the voters of Southborough would tolerate any member of any town board eliminating public comment times from meetings. Should they try, I would be the first with a citizens petition to mandate it in all public forums. Serving in a public capacity has always come with a serving of liability, as I can truly attest, but that hasn’t changed much since the game of politics was invented, and I don’t believe this ruling will have any dulling effect. Even today, two new people pulled papers for the BOS.

Al Hamilton
1 year ago

I can attest that in the past a number of town committees have had just the policy you believe is intolerable. I agree with your sentiments on this issue but the potential chilling effect is there.

David Parry
1 year ago

I agree with Michael Weishan. that PUBLIC COMMENT should always stay on the agenda., even if some speakers are loud and annoying. That is their right, under this bastion of FREE SPEECH.. There at least two limits on speech, as I understand the SJC ruling :

1. No speech which amounts to slander (provably untrue).

2. No speech which is clearly intended to create IMMINENT DANGER — This is a particularly interesting restriction . The classic case is Patrick Henry’s shouted words ., after warming up the crowd for 20 minutes, and coming to a resounding conclusion: :


Henry aimed these “fighting words” squarely at the most powerful Virginia delegates, asembled to decide how many Virginia Militia should be sent North, to help the Massachussetts Militia.

Those present included George Washington and Thomas Jefferson.. Can you imagine that rendescvous with history. !

The point here is that Henry did NOT call for violence either AT THE MEETING ITSELF, OR IMMEDIATELY FOLLOWING. The meeting was held in March 1776, just one month before fhe first real “battles”, between opposing troops. at Lexington and Concord.

So Henry’s speech WOULD pass muster, and would be permitted under the SJC ruling, even though it contains STRONG FIGHTING WORDS.

I will end this comment with my own promise ; . “AS FOR ME …If the good. citizens of Southborough elect me, then I promise to include time for “PUBLIC COMMENT” ( if I am chair and have the power to set the agenda..

Tim Martel
1 year ago

Hi Michael,
There isn’t much you can do about it. No citizen petition can override state law, which is what defines the parameters around how the Select Board operates its meetings.
You can run for Select Board, or back a specific candidate who will push for an open policy. That’s about it.
At this point in time, its entirely legal for any board to not include any public comment section in their agenda. And if they want to protect their fellow volunteers from personal law suits and monetary damages, they should strongly consider doing so in the interim, until the state legislature offers a solution.

Michael Weishan
1 year ago
Reply to  Tim Martel

Hi Tim, I think you are belaboring the point. As the respected gentleman from Pine Hill Road, Mr. Hamilton, has repeatedly reminded me, if you have a problem with the BOS, then vote them out! And I would add that if any were so cowardly as to try to abolish public comment, well then, they probably shouldn’t be sitting in that seat, or attempting it. All I can say is this: I have today pulled papers for the open seat on the Planning Board, and I can assure you that should the voters of Southborough elect me to that office, I would not in any way feel constrained by the SJC ruling as long as what I spoke was factual and honest. The truth will out.

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