Point of Order! More Restrictions on Free Speech in Acton?

By Marty Benson

The following statement was read at the Select Board Meeting on January 8, 2024.

First, there seems to be a misunderstanding amongst certain board members regarding when it’s appropriate to call for a point of order during meetings.  An individual may raise a point of order when a rule violation occurs.  The Chair then determines if the stated rule infraction is valid, and if so, can accept the point of order.

During the Select Board meeting on December 4, 2023, I spoke during public comment and noted that Mr. Martin had a past history of advocating for the placement of political signage on the triangle in Town Common.  This statement was affirmed by Mr. Martin’s own email from March 11, 2021 which was acquired through a records request.

Shortly thereafter, Mr. Martin interrupted me by screaming point of order (45:08).  The Chair recognized him and Mr. Martin falsely contended that he had never advocated for political signage to be placed in the common.  In his comments Mr. Martin did not identify any such rule violation and it appears he simply objected to the content of my statement.  Since that meeting, I have on multiple occasions inquired from the Chair as to what rule I was violating, but have yet to receive an answer.

The reason for the lack of an answer from the Chair is due to the fact that no rule violation occurred.  The Select Board does not have a rule which places restrictions on the content of speech as such a rule would be in direct conflict with the state constitution and subsequent case law.  Going forward, the Chair and Mr. Martin must understand that they are not justified in calling a point of order based on their objections to the content of a speaker’s statement.

Second, the board’s lack of response to Ms. Nichol’s prior attack on Mr. Smyers at a previous meeting was disappointing and concerning.  At the board’s November 20, 2023 meeting, Mr. Smyers was being an ally and issued a statement opposing Antisemitism.  Thereafter, Ms. Nichol misquoted and mischaracterized Mr. Smyers’ comments and then condemned him.  What’s ironic is that in 2021, Ms. Nichol signed a petition demanding zero tolerance of Select Board members launching personal attacks on constituents.  Thus, it’s unclear why she herself has yet to apologize or resign.

Third, recently released records from the Town, including the emails which were the catalyst for Ms. Nichol’s comments, illustrate that there is still a misunderstanding regarding free speech laws.  We now know that the emails complaining about Mr. Smyers’ comments were submitted by Ms. Vieira and Ms. Ramachandran.

In Ms. Vieira emails she acknowledges the First Amendment, but implied that Mr. Smyers’ comments were hate speech which shouldn’t be permitted at meetings.  However, under US law there is no definition of hate speech because such a law would be in violation of the First Amendment.  This principle was reaffirmed unanimously by the Supreme Court in the 2017 case Matal v. Tam.  In 2023, the SJC cited Matal, in the Barron decision.  Thus, even if Ms. Vieira considered Mr. Smyers’ comments constituted hate speech, he would still be permitted to make such statements at Select Board meetings.

Furthermore, the records also indicate that the Chair on three occasions contacted Mr. Smyers’ in an effort to compel him to amend his previous statement. This action is in direct violation of state and federal law.  Additionally, the released records also showed that the Chair tried to illegally withhold the release of these emails despite a valid records request submitted by Mr. Smyers.  Going forward the Select Board needs to commit itself to honoring individuals’ free speech rights while also complying with the law.