On March 19, 2023, the Sunday New York Times featured a story on the recent Massachusetts Supreme Court decision that reaffirmed what constitutes appropriate commentary when it upheld an individual’s right to be rude at public meetings.
The Case
This decision follows the case of Barron v. Kolenda, brought about by Southborough, Massachusetts resident, Louise Barron (“Barron”). In December 2018, Barron was asked to leave a town meeting due to “inappropriate language” deemed to be in violation of the town’s guidelines.
During the meeting, Barron objected to municipal actions in a public comment session. She accused the Board of spending “like drunken sailors” and called the Board Chair, Daniel Kolenda (“Kolenda”), “a Hitler.” Kolenda determined that Barron violated the Board’s policies regarding participation at public meetings and threatened to physically remove her from the meeting.
Thereafter, she and two other plaintiffs brought State constitutional challenges to the policy, claiming that Barron had exercised her constitutionally protected right under Article 19 of the Massachusetts Declaration of Rights “to assemble, speak in a peaceable manner, and petition her town leaders for redress.”
The Opinion
In its March 7, 2023 decision, the Court sided with Barron. The Court found Southborough’s Civility Code, which required discourse at public meetings be “free of rude, personal or slanderous remarks,” to be unconstitutional. The Court did acknowledge Barron’s comments as rude and insulting, however, her speech was ultimately protected.
The Court reasoned that such civility restraint on the content of speech at a public comment session in a public meeting is forbidden. Though many individuals are concerned about this recent decision, it is not a novel holding by our Courts.
Meanwhile In Pennsylvania
On October 2, 2021, four Lower Makefield Township residents (“the Residents”) claimed the Pennsbury School District (“the District”) violated their First Amendment Rights and illegally censored their public comments at the Board’s meetings by cutting them off, prohibiting their comments, and editing statements from video recordings.
In this instance, the District invoked multiple public comment policies to end the disruption caused by the Residents. The District utilized Policy 903 and 922 to stop comments they perceived as “personally directed,” “abusive,” “irrelevant,” “offensive,” “intolerant,” “otherwise inappropriate,” or “personal attacks.” Despite this attempt to remove ill-mannered comments from public meetings, U.S. District Court Judge Gene E. Pratter noted that “the First Amendment protects offensive speakers.”
All parties agreed that a Settlement Agreement would best solve this case. By approving the Agreement and acknowledging that the Board’s Policy violated the First Amendment, the District’s insurance carrier paid $300,000 in attorneys’ fees and nominal damages of $17.91 to each of the Residents.
Bottom Line for Schools
To quote the New York Times article, “Some observers say public meetings around the country have grown more contentious, fueled by pandemic related disruption and deepening political division.”
Courts across the nation stand together as they continue to protect the right to be rude at public meetings. As Associate Justice Scott L. Kafker wrote in Barron, “although civility can and should be encouraged in political discourse, it cannot be required.”
School Boards may have to bite their lips and think twice before censoring or expelling rude speakers. However, the First Amendment does not tolerate true disruption of public meetings.
Schools should review their meeting policies and determine whether they are subjecting themselves to lawsuit.
School officials with questions about board policies or the censorship of public comment at public meetings should contact their solicitor or an attorney at KingSpry.
