MLM Issues Info-Gram on Public Comment Following SJC Decision
MLM has issued a client bulletin after an important ruling from the Massachusetts Supreme Judicial Court (SJC) on March 7, 2023, which limits the ability of public bodies to prevent speakers from offering critical, personal, discourteous, and/or disrespectful remarks during public comment periods at public meetings.
The case, Barron v. Kolenda, No. SJC-13284, stems from a municipal select board meeting in 2018 in which the plaintiff was accused of violating a portion of the board’s policy requiring public comments to be respectful and courteous, free of rude, personal, or slanderous remarks. During the public comment period of the meeting, the plaintiff approached the podium holding a sign that stated “Stop Spending” on one side and “Stop Breaking Open Meeting Law” on the other, and offered remarks critiquing the town’s spending and open meeting law violations, including statements that the town “ha[d] been spending like drunken sailors” and was “in trouble”, and regardless of whether the board members were volunteers, they had “still broken the law”, “that is not the best you can do”, and “breaking the law is breaking the law.”
The chair interrupted the plaintiff, indicating that if she was going to slander board members, they would stop public comment and go into recess. In response, the plaintiff told the chair to “stop being a Hitler” and continued, “You’re a Hitler. I can say what I want.” The chair then called a recess, during which time he called the plaintiff disgusting and told her he would have her escorted out if she didn’t leave. The plaintiff then left the meeting.
The SJC found that all of the plaintiff’s speech was political speech and/or hyperbole protected by their constitutional rights to free speech and assembly under the Massachusetts Declaration of Rights, and that to the extent the board’s public comment policy contained civility restraints preventing the plaintiff from offering those remarks at public comment, such restraints were unconstitutional. The SJC cautioned that a public body’s ability to regulate speech during public comment was limited to reasonable time, place, and manner restrictions necessary to ensure public comment is “orderly and peaceable”, and that these restrictions should not be content- or viewpoint-based.
The Barron decision is sure to cause some concern among local public bodies, who have seen in increase in hostility and confrontations at their meetings in recent years. In response to the decision, MLM is recommending public bodies review and update their public comment policies and take other steps to ensure their public comment periods comply with the decision. Additional information regarding the decision and recommended next steps is available from the attorneys at Murphy, Lamere & Murphy, P.C.
