By Marty Benson
The following statement is from the January 23, 2023 Select Board meeting.
Tonight, I will address the Select Board’s December 19, 2023 vote to remove Dave Lunger from the Acton 250 Anniversary Committee. I am not defending the content of any of his social media posts. However, the vote to remove Mr. Lunger was marred by an improper process and serious violations of the First Amendment.
First, the process used to remove Mr. Lunger was flawed, improper, and not in accordance with an established policy. The Select Board improperly approached the discussion and vote regarding Mr. Lunger’s appointment as a second confirmation hearing. At the start, Town Counsel said, “if going forward now you all decided to seat the appointed member,”. The problem is Mr. Lunger was already appointed to and seated on the committee but this board approached the issue as if he hadn’t. The Select Board didn’t have the right to remove Mr. Lunger for comments he made prior to his appointment. The Select Board already had its opportunity to examine this issue when they voted to appoint him on November 7, 2022.
Secondly, the two reasons which the Select Board cited as cause for Mr. Lunger’s removal from the 250 committee on December 19, 2022, are potentially illegal infringements on his constitutionally protected right to freedom of speech.
In the first example, before the vote to remove Mr. Lunger, Town Counsel requested that Ms. Arsenault amend her motion to include the reason that Mr. Lunger was being removed. The reason cited was because his tweets were considered “hate speech”. This is problematic because there is no hate speech exception to the First Amendment. This principle was reaffirmed unanimously by the Supreme Court in the 2017 case, Matal v. Tam. In their decision, the Supreme Court wrote, “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” Thus, citing “hate speech” wouldn’t qualify as cause.
In the second example, to prove cause for his removal, the town had to show that Mr. Lunger violated a policy. No policies existed regarding guidelines for those serving on town committees. In lieu of an actual policy, the Select Board cited their Respect for All Statement, to prove cause and justify his removal. This statement which was issued in July 2021, reads,
“The Select Board values all Acton’s residents. Any type of hurtful speech or action, targeting anyone for who they are, is unacceptable here, including racism, antisemitism, ethnic slurs, homo or trans-phobia, ableism, etc. Respect for everyone is expected in all interactions in our community.”
However, this statement is in direct violation of the First Amendment.
In his concurring opinion to Matal v Tam., Justice Anthony Kennedy wrote, “A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.” Thus, the town is forbidden by the First Amendment to establish rules which seek to limit the free speech rights of anyone. The Select Board cannot claim that Mr. Lunger, prior to his appointment to the 250 committee, violated a Select Board policy which illegally restricted the First Amendment rights of the citizens of Acton without their consent, as a reason for cause for his removal.
For the reasons mentioned above, the Select Board’s vote to remove Mr. Lunger from the committee was likely illegal. If this case were to go to court the Town of Acton would most likely lose due to violations of Mr. Lunger’s First Amendment rights.
The rights enshrined in the First Amendment are some of the most sacred rights we have as Americans. So sacred, that in 1977, David Goldberger a Jewish attorney, employed by the Illinois chapter of the ACLU, agreed to represent a group of Neo-Nazis seeking to hold an assembly in the town of Skokie. This was due to its sizeable Jewish population. Nonetheless, the Jewish lawyer took the Neo-Nazis’ case all the way to the Supreme Court, which eventually issued a ruling in their favor. Goldberger’s story was featured in a recent Newsweek article from January 4, 2023. In the article he says, “I fervently believe that free speech is the core of democracy and that, as a general rule, the curative for bad speech is more speech. That is at the very foundation of the First Amendment. The alternative is to have the government decide who can talk and what they can say.”
This is exactly what is happening here in Acton. Our government is telling us who can talk and what they can say. This board should vote to vacate their decision to remove Mr. Lunger from the 250 Anniversary Committee as it was without process and sets a dangerous precedent.
Marty Bensen’s statement from the Jan. 23 Select Board meeting was excellent. He makes clear that the removal of Dave Lunger from the 250 Committee has potential legal ramifications, because it infringes on one’s Constitutionally protected rights. Select Board members confuse their woke religious doctrine, that of demanding “safe spaces,” with established American legal jurisprudence. This confusion should be clarified, because it has lead to a First Amendment violation. In the United States, the government is prohibited from establishing religion (through the Establishment Clause of the US Constitution; part of the 1st Amendment). Due to this prohibition, the government can not establish rules favoring Christianity, Wokism or any other religion. This prohibition has protected us from becoming a theocracy, as our government must remain separate from religion. Members of the Acton Select Board however, assume that they can impose their religious beliefs on the rest of us. When they banned Dave Lunger from the 250 Committee, due to his historical social media posts, they were violating his right to free speech and imposing their religious doctrine on him. They violated his Constitutional rights and his Constitutional guarantee that the government will not impose religion on him. They did not have this power. They violated the law of the land.
On top of these troubling violations, there is another transgression happening here. Although Dave Lunger sincerely apologized for his past speech, the Board has shown a chilling lack of forgiveness toward him. They seem to assume that they have a God given right to exert moral superiority over others. This kind of hubris and heartlessness is unusual to see in America, where most people are taught to be humble and forgiving toward others. The Judeo-Christian tradition teaches these social constructs. They have allowed us to function as a multicultural society, because humility and forgiveness leads to the tolerance of others. This is what holds us together. Tolerance is what allows America to welcome new people to our shores. Unfortunately, this debate has made clear that we are working under different rules now. It is ironic, because even the Chinese Communist Party believes in “re-educating people.” As it turns out, our current batch of leftists are even less tolerant than them. The leftists show zero willingness to forgive Dave Lunger. Because of this, they should receive zero tolerance from the rest of us. Members of the Acton Select Board have comported themselves in an illegal manner, in deciding to remove Dave Lunger from the Acton 250 committee. Because of this, they should be removed from the Acton Select Board.
As Karl Popper explained, a tolerant society can not tolerate intolerant people, because in the end, the intolerant people will destroy the tolerant society. This is a lesson learned from Nazi Germany and it is a lesson for America today. We can not tolerate intolerant people, who offer hatred and intolerance under the guise of “inclusion.”
Dec. 19, 2022 Select Board Meeting. The relevant conversation begins at 2 hours, 18 minutes.
http://actontv.org/on-demand/post-video/acton-select-board-meeting-december-19th-2022
In this video, Ben Shapiro explains how one’s religiously held beliefs are distinct from political laws.
https://youtu.be/sybYzMhmWog
How the Woke Fail the Paradox of Tolerance (An important lesson learned from Nazi Germany.)
https://youtu.be/v_uJLWOhFJk
The use of social media posts to screen committee appointments was pioneered by Jon Benson. That case went to court and the judge didn’t seem overly concerned with the process. That’s despite some flagrant open meeting law violations. Good luck with your court case.
I attended a couple of Karl Popper’s lectures when he was Professor Emeritus at LSE. I spoke to him a few times. I’m not sure where he would have landed on Mr Lunger. His comments on social media clear demonstrate intolerance. So shouldn’t he be the one that is silenced rather than tolerated?
It is neat that you saw Karl Popper in person at the London School of Economics. He seems to have been a brilliant man.
The preamble to the Declaration of Independence states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The Founders protected these “natural rights” implicitly in the Constitution and explicitly by the Bill of Rights. The 1st Amendment to the Constitution designates the right to free speech as of primary concern. This bill assures citizens that the government will not impose restrictions on their speech. It does not provide a guarantee for “safe spaces,” from the speech of others. No, providing safe spaces actually restricts free speech. The Supreme Court has taken up the issue on several occasions and decided that hateful and derogatory speech is legitimate speech. It is worthy of government protection because as they say, “one man’s vulgarity is another’s lyric.” Even defining “hate speech” can not be done, without silencing “legitimate” speech. Some of the relevant court cases are provided here: https://www.thefire.org/research-learn/hate-speech-legal.
The Acton Select Board violated the US Constitution when it sanctioned Dave Lunger for his legitimate speech. It was not within their power to supersede the legal protections offered by the Bill of Rights. The US Constitution, after all, is the supreme law of the land.
Interesting.
Perhaps you should take a look at Boutet et Al vs the Board of Selectmen. Social media posts were cite as a reason for keeping Danny Factor off the Planning Board. That was after some back room deals were cut. Check out who present those social media posts.
Ultimately, we failed to have Danny Factor get his place on the Planning Committee. The judge was not prepared to overturn the decision of a democratically elected Select Board. If Mr Lunger has a case, I suggest you go to court like we did.
Mr Lunger’s views are truly abhorrent. I definitely wouldn’t want to participate in any case you bring. Like a lot of people in this area, I know people who died in 9/11. I find his posts on that horrific terrorist attack particularly disturbing. Then there’s the transphobia and election denial.
As a “founding member” of the dog park committee I learned that nobody with special needs should apply. I was summarily dismissed for no cause at all, other than difficulty keeping track of time, which is a symptom of a brain injury. Oh, and I also re-organized the Google Drive, for which I apologized, at length, because of not knowing how long I was speaking…
Great arguments in your article. But who is the “Greenberger” that you mentioned in the ninth paragraph? J. Conboy
Edited. Thank you.
I applaud your defense of the 1st amendment right afforded to every United States citizen, regardless how obnoxious their comments, and hope you will force vacating of their flawed decision. I won’t be surprised, however, if the Board of this bastion of liberalism believes there will be little objection to their obvious trampling of the free speech amendment, the foundation of our democracy, and refuses to budge prior to receipt of a court order.
Great summary, Marty. Knowing Dave, I seriously doubt any of his comments were “hate speech,” but even if they were, his speech is protected. But perhaps the BOS should just adopt a policy that only Liberal Democrats may serve on any town boards or committees, and then everyone in power would be happy.
Instead of “No Irish Need Apply”, in Acton and blue state America it is becoming “No Conservative Need Apply”. The problem with the lack of viewpoint diversity is a narrowing of acceptable viewpoints based on ideology. This leads to blind spots in decision making and policy.