By Marty Benson
The statement below was read at the Acton Select Board Meeting from March 20, 2023.
This past week, the Supreme Judicial Court of Massachusetts ruled unanimously in Barron v. Kolenda, that the use of “ civility restraints on the content of speech at public comment session in a public meeting are forbidden.” The court reasoned that the Southborough’s Board of Selectmen’s use of a “civility code” to end public comment period violated article 16 and 19 of the Massachusetts Declaration of Rights. In their decision the SJC wrote, “For the reasons set forth infra, we conclude that the public comment policy of the town of Southborough (town) violates rights protected by art. 19 and, to the extent it is argued, art. 16. Under both arts. 19 and 16, such civility restraints on the content of speech at a public comment session in a public meeting are forbidden. Although civility, of course, is to be encouraged, it cannot be required regarding the content of what may be said in a public comment session of a governmental meeting without violating both provisions of the Massachusetts Declaration of Rights, which provide for a robust protection of public criticism of governmental action and officials.”
The history of Article 19 traces back to the Colonial era, as it was drafted by John and Samuel Adams to guarantee citizens the right to address their governmental leaders. The court further elaborated “ art. 19 reflects the lessons and the spirit of the American Revolution. The assembly provision arose out of fierce opposition to governmental authority, and it was designed to protect such opposition, even if it was rude, personal, and disrespectful to public figures, as the colonists eventually were to the king and his representatives in Massachusetts.”
The Acton Select Board must take notice of the Barron decision and its implications which reaffirmed the rights bestowed to the citizens under articles 16 and 19 of the Massachusetts Declaration of Rights. This decision underscores this board’s shortcomings in a number of its actions over the last several years. These include the following,
1) The Select Board’s July 2021, Respect for All Statement, which the Select Board cited as cause to justify their illegal vote to remove Dave Lunger from the Acton 250 Anniversary Committee.
2) Mr. Martin’s refusal to allow public comments during DEIC meetings because he was concerned about the content of public comments.
3) Ms. Nagireddy’s proposal for a code of conduct for elected officials.
4) Mr. Martin’s actions at the January 21, 2021, meeting of the Acton Select Board, when acting as clerk he disconnected the zoom connection of speakers whose views’ he disagreed with during public comment.
5) Mr. Snyder Grant’s act of calling a point of order for the purpose of stopping Scott Smyers’ public comments which were critical of Mr. Martin during the Select Board’s December 19, 2022, meeting.
6) Further gleaned from a records request is a January 8, 2021, letter from Mr. Martin to Superintendent Light in which Mr. Martin offers “to help moderate meetings behind the scenes” during School Committee meetings. The following year, the comments of speakers who spoke critically of the decision to retire the Colonial mascot were often muted in the public broadcast of School Committee meetings.
7) The recent practice of town moderators implementing speech restrictions during town meetings.
So, there will be no further violations of Massachusetts Law, Town Counsel should appear in an open session to share her recommendations and to respond to residents’ questions. The overarching issue in this conversation is that there must be an adherence to diversity of opinion and no further viewpoint discrimination.
Lastly, Mr. Mangiaratti, I have still not received a response from the Town as ordered by the Secretary of State in case SPR23/0175, in response to my records request of 4/20/2022? Any update on whether one will be forthcoming?
Great work Martin Benson
Hi All. As the attorney for the plaintiffs in the Barron case, I feel compelled to tell you that, other than potentially #1 and #4 above (situations I know absolutely nothing about so I cannot comment upon), none of the list above is covered by the SJC’s decision in the Barron case. Thanks, Ginny Kremer
Why not?
Ginny,
Thank you for taking the time to read and comment on my remarks which were read at the Acton Select Board’s meeting on March 27, 2023. While you did represent the plaintiffs in the Barron case, with the support of multiple amicus briefs submitted by groups such as the A.C.L.U., I disagree with your contention that the items I have cited are not covered by the recent Barron decision or Article 16 or Article 19 of the Massachusetts Declaration of Rights.
For instance, in item #7 of my statement I argue, “The recent practice of town moderators implementing speech restrictions during town meetings”, violates Article 19 of the Massachusetts Declaration of Rights. My argument is reaffirmed by text found on page 13 of the Baron decision which reads,
“The text of art. 19 thus encompasses the plaintiffs’ complaint here. Barron assembled with others at the public comment session of the board meeting to request redress of the wrongs they claimed had been done to them and the grievances they claimed to have suffered by town official actions, including the town’s noncompliance with the open meeting law.
The text of this provision has also not been interpreted to be limited to State representatives or legislative bodies, despite some wording to that effect, but rather has been interpreted to be directed at the people’s interaction with government officials more generally, including in particular town officials. See Kobrin v. Gastfriend, 443 Mass. 327, 333 (2005) (statutory right to petition is coextensive with art. 19 and applies where “a party seeks some redress from the government”); MacKeen v. Canton, 379 Mass. 514, 521-522 (1980) (evaluating whether town meeting procedures were consistent with art. 19);”
Thus, it’s unclear how you are contending that Item #7 is not covered by the Barron decision or Article 19 of the Massachusetts Declaration of Rights.
Lastly, while you were arguing on behalf of a plaintiff contending that civility codes violated the Massachusetts Declaration of Rights, you were concurrently serving on a governmental board whose Chair was enforcing a civility code. Last year, the Chair of the Acton-Boxborough Regional School Committee began implementing and enforcing a rule that all statements during public comment must be “civil”. Despite knowing that the Chair’s actions were illegal, you never once raised this issue during a public meeting.
Thank you for all your hard work on behalf of the plaintiff to ensure that the rights granted to the people in the Massachusetts Declaration of Rights are being upheld.
Your friendly neighbor,
Marty Benson
Thank you for investing your time and energy to help preserve the legal rights granted to all citizens of this Commonwealth and hold accountable those who would disregard them.