Barron v. Kolenda

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SJC-13284

LOUISE BARRON & others1 vs. DANIEL L. KOLENDA2 & another.3

Worcester. November 2, 2022. – March 7, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker,

& Wendlandt, JJ.

Open Meeting Law. Municipal Corporations, Open meetings,

Selectmen, Governmental immunity. Constitutional Law,

Right to assemble, Right to petition government, Freedom of

speech and press. Governmental Immunity. Massachusetts

Civil Rights Act. Civil Rights, Availability of remedy,

Immunity of public official. Declaratory Relief.

Civil action commenced in the Superior Court Department on

April 3, 2020.

The case was heard by Shannon Frison, J., on a motion for

judgment on the pleadings.

The Supreme Judicial Court on its own initiative

transferred the case from the Appeals Court.

Ginny Sinkel Kremer for the plaintiffs.

John J. Davis for the defendants.

1 Jack Barron and Arthur St. Andre.

2 Individually and as a member of the board of selectmen of

Southborough.

3 Town of Southborough.

2

The following submitted briefs for amici curiae:

John Foskett for Massachusetts Association of School

Committees.

Ruth A. Bourquin for American Civil Liberties Union of

Massachusetts, Inc.

Maura E. O'Keefe, Town Counsel, & Rosemary Crowley for

Massachusetts Municipal Lawyers Association.

Frank J. Bailey, Selena Fitanides, & John C. La Liberte for

PioneerLegal, LLC.

KAFKER, J. After objecting to open meeting law violations

and other municipal actions in a public comment session at a

meeting of the board of selectmen of Southborough (board), the

plaintiff Louise Barron was accused of violating the board's

"public participation at public meetings" policy (public comment

policy or civility code) and eventually threatened with physical

removal from the meeting. Thereafter, she and two other

plaintiffs brought State constitutional challenges to the

policy, claiming in particular that she had exercised her

constitutionally protected right under art. 19 of the

Massachusetts Declaration of Rights "to assemble, speak in a

peaceable manner, and petition her town leaders for redress."

In the plaintiffs' request for declaratory relief, seeking

to have the public comment policy declared unconstitutional,

they also used terminology associated with free speech claims

brought under art. 16 of the Massachusetts Declaration of

Rights, as amended by art. 77 of the Amendments to the

Constitution, and the First Amendment to the United States

Constitution, although they voluntarily withdrew their First

3

Amendment and other Federal claims, eliminating the Federal

constitutional basis that had justified removal of the case from

State to Federal court. Finally, Barron claims that the threat

to remove her from the meeting for exercising her State

constitutional rights violated the Massachusetts Civil Rights

Act (MCRA), G. L. c. 12, §§ 11H-11I.

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. What can be required is that the public comment

session be conducted in an "orderly and peaceable" manner,

including designating when public comment shall be allowed in

the governmental meeting, the time limits for each person

speaking, and rules preventing speakers from disrupting others,

and removing those speakers if they do. We have concluded that

such time, place, and manner restrictions do not violate either

4

the right to assembly under art. 19 or the right to free speech

under art. 16. See Desrosiers v. Governor, 486 Mass. 369, 390-

391 (2020), cert. denied, 142 S. Ct. 83 (2021) (permitting time,

place, and manner restrictions under art. 19); Mendoza v.

Licensing Bd. of Fall River, 444 Mass. 188, 197-198 (2005)

(discussing time, place, and manner restrictions under art. 16).

Furthermore, when Barron alleged that the chair threatened

to have her physically removed from a public comment session of

a public meeting after she criticized town officials about

undisputed violations of the open meeting laws, she properly

alleged that he threatened to interfere with her exercise of

State constitutional rights protected by arts. 16 and 19 in

violation of the MCRA. There is also no qualified immunity, as

there is a clearly established State constitutional right under

arts. 16 and 19 to object (and even to do so vigorously) to the

violation of the law by government officials in a public comment

session of a public meeting. We therefore reverse the Superior

Court judgment entered in favor of board member Daniel L.

Kolenda. We also direct the Superior Court to enter a judgment

declaring the town's public comment policy unconstitutional in

violation of arts. 19 and 16.4

4 We acknowledge the amicus briefs submitted by the

Massachusetts Association of School Committees; American Civil

Liberties Union of Massachusetts, Inc.; Massachusetts Municipal

Lawyers Association; and PioneerLegal, LLC.

5

Background. 1. Public meeting. We draw the facts from

the plaintiffs' complaint, while also considering the board's

public comment policy and the video recording of the board's

December 4, 2018 meeting, both of which were included in the

record and considered by the judge below. See Mullins v.

Corcoran, 488 Mass. 275, 281 (2021), quoting Schaer v. Brandeis

Univ., 432 Mass. 474, 477 (2000) ("In deciding [a motion for

judgment on the pleadings], all facts pleaded by the nonmoving

party must be accepted as true. . . . We also may rely on

'matters of public record, orders, items appearing in the record

of the case, and exhibits attached to the complaint'");

Rosenberg v. JPMorgan Chase & Co., 487 Mass. 403, 408 (2021) (in

reviewing motion to dismiss, we may consider extrinsic documents

plaintiff relied on in framing complaint).

Barron is a town resident and a longtime participant in

local government. The board consists of five elected members.

Kolenda was a longtime member of the board. The board is

subject to "the Massachusetts open meeting law, G. L. c. 30A,

§§ 18 and 20 (a), which generally requires public bodies to make

their meetings, including 'deliberations,' open to the public."

Boelter v. Selectmen of Wayland, 479 Mass. 233, 234 (2018). The

board's public comment policy outlines the public comment

portion of its meetings where town residents may address the

6

board.5 In 2018, the Attorney General determined that the board

had committed dozens of open meeting law violations and ordered

5 The public comment policy states in full:

"The [board of selectmen] recognizes the importance of

active public participation at all public meetings, at the

discretion of the [c]hair, on items on the official agenda

as well as items not on the official agenda. All comments

from the public should be directed to or through the

[c]hair once the speaker is recognized, and all parties

(including members of the presiding [b]oard) act in a

professional and courteous manner when either addressing

the [b]oard, or in responding to the public. Once

recognized by the [c]hair, all persons addressing the

[b]oard shall state their name and address prior to

speaking. It is the role of the [c]hair to set time

limitations and maintain order during public meetings, as

it is important that the [b]oard allow themselves enough

time to conduct their official town business.

"If included on the meeting agenda by the [c]hair,

'[p]ublic [c]omment' is a time when town residents can

bring matters before the [b]oard that are not on the

official agenda. Comments should be short and to the

point, with the [c]hair ultimately responsible to control

the time available to individual speakers. Except in

unusual circumstances, any matter presented under '[p]ublic

[c]omment' will not be debated or acted upon by the [b]oard

at the time it is presented.

"All remarks and dialogue in public meetings must be

respectful and courteous, free of rude, personal or

slanderous remarks. Inappropriate language and/or shouting

will not be tolerated. Furthermore, no person may offer

comment without permission of the [c]hair, and all persons

shall, at the request of the [c]hair, be silent. No person

shall disrupt the proceedings of a meeting.

"Finally, while it true that State law provides that the

[c]hair may order a disruptive person to withdraw from a

meeting (and, if the person does not withdraw, the [c]hair

may authorize a constable or other officer to remove the

person from the meeting), it is the position of the [board]

that no meeting should ever come to that point."

7

each member of the board to attend in-person open meeting law

training.

Barron attended the board's meeting on December 4, 2018,

where Kolenda was acting as the chair. The board members

discussed a number of topics, including the town budget, which,

if approved, would result in increased real estate taxes for

town residents. The board also discussed the possibility of

elevating the town administrator to the position of town

manager. The board also briefly addressed the open meeting law

violations. During the discussion on this point, Kolenda stated

that the board is "a group of volunteers," and further

characterized its members as "public servants" who "do their

best."

After approximately two and one-half hours of business,

Kolenda announced that the board would be moving to public

comment. Kolenda then stated, paraphrasing from the public

comment policy:

"And before we go to public comment, just a reminder for

anyone who wants to make public comment. It's a time when

town residents can bring matters before the board of

selectmen that are not on the official agenda. We do have

these posted for all boards and committees. Comments

should be short and to the point and remarks must be

respectful and courteous, free of rude, personal, or

slanderous remarks, and the guidelines go on for a couple

of pages, but if anyone has any questions on that feel free

to ask us. If not, public comment please."

Barron then approached the podium holding a sign that stated

"Stop Spending" on one side and "Stop Breaking Open Meeting Law"

8

on the other. Barron began her comments by critiquing the

proposed budget increases, opining that the town "ha[d] been

spending like drunken sailors" and was "in trouble." She argued

for a moratorium on hiring and inquired about the benefits of

hiring a town manager as opposed to a town administrator.

Kolenda responded that questions would not be answered as the

board was "not going to have a back and forth discussion during

public comment." Barron began moving to her next topic of

concern but another board member responded to her question,

indicating that the issue of a town manager would be considered

by a committee and "ha[d] nothing to do with [the] upcoming town

meeting."

After the board member's response, Barron began to critique

the board for its open meeting law violations. Barron and

Kolenda then had the following exchange:

Barron: "And the next thing I want to say is you said that

you were just merely volunteers, and I appreciate that, but

you've still broken the law with open meeting law, and that

is not the best you can do. And . . . when you say that

. . . this is the best we could do, I know it's not easy to

be volunteers in town but breaking the law is breaking the

law and --"

Kolenda: "So ma'am if you want to slander town officials

who are doing their very best -–"

Barron: "I'm not slandering."

Kolenda: "-- then then we're gonna go ahead and stop the

public comment session now and go into recess."

9

When Kolenda said the word "now," Barron interjected and,

simultaneously to Kolenda saying, "go into recess," Barron

stated, "Look, you need to stop being a Hitler." Barron

continued: "You're a Hitler. I can say what I want." After

Barron's second reference to Hitler, Kolenda said: "Alright, we

are moving into recess. Thank you."

The audio recording on the public broadcast then stopped.

A message on the screen stated, "The Board of Selectmen is

taking a brief recess and will return shortly," but the video

recording continued to show the board members for approximately

thirteen seconds.

Kolenda turned off his microphone, stood up, and began

pointing in Barron's direction, repeatedly yelling at her,

"You're disgusting!" Kolenda told Barron that he would have her

"escorted out" of the meeting if she did not leave. Concerned

that Kolenda would follow through with his threat, Barron left

the meeting.

2. Procedural history. In April 2020, Barron, her

husband, and a third resident of the town filed a complaint in

the Superior Court alleging both Federal and State causes of

action relating to the board's December 4, 2018 meeting. The

defendants removed the case to Federal court, but it was

remanded to the Superior Court after the plaintiffs withdrew the

Federal claims. The plaintiffs' amended complaint sought a

10

judgment declaring that a portion of the policy was

unconstitutional under the Massachusetts Declaration of Rights

to the extent that the policy disallows criticism of the board

members and their decisions. They also sought relief against

Kolenda in his individual capacity under the MCRA, G. L. c. 12,

§§ 11H-11I, for violation of art. 19.6 Article 19 is the only

provision of the Declaration of Rights that is expressly

referenced in the complaint, although the request for

declaratory relief is more open-ended and uses the terminology

associated with free speech claims.

Prior to discovery, the defendants filed a motion for

judgment on the pleadings. The motion was allowed as to all

counts, and the plaintiffs appealed. We transferred the case

here on our own motion.

Discussion. In the instant case, we are confronted with a

State, not a Federal, constitutional challenge. It is also a

6 The plaintiffs also brought an MCRA claim against Kolenda

in his official capacity; MCRA claims against two other board

members in their official and individual capacities; and claims

against the board members for violating the open meeting law.

Barron individually brought several common-law claims against

Kolenda. The judge dismissed all of Barron's and the

plaintiffs' claims. On appeal, the plaintiffs challenge only

the dismissals of their claim for a declaratory judgment and the

MCRA claim against Kolenda. The plaintiffs do not argue against

the dismissal of the MCRA claim against Kolenda in his official

capacity. Consequently, we do not review the dismissal of the

other claims. See Lyons v. Secretary of the Commonwealth, 490

Mass. 560, 593 n.42 (2022) (claims not argued in brief are

waived).

11

challenge expressly premised on art. 19, a provision that has

not been the focus of much attention in recent case law, despite

its illustrious past. Notably, this provision has served an

important, independent purpose for much of the history of

Massachusetts government, as there was no free speech provision

in the original Declaration of Rights. In fact, such a

provision was not added to the Massachusetts Constitution until

1948, when it was amended to include express free speech

protections. See art. 16 of the Massachusetts Declaration of

Rights, as amended by art. 77 of the Amendments to the

Constitution.

As the text of art. 19, which was drafted by John Adams

with some assistance from his cousin Samuel Adams,7 along with

its illuminating constitutional history, is directly applicable

and dispositive of the claims here, we focus on art. 19 first.

Because the request for declaratory relief is more open-ended

and uses the terminology associated with art. 16 and First

Amendment claims, we address art. 16 as well.

1. Standard of review. "We review the allowance of a

motion for judgment on the pleadings de novo." Mullins, 488

Mass. at 281. We accept as true "all facts pleaded by the

7 The Adams cousins were two of the three members of the

subcommittee at the constitutional convention charged with

drafting the Massachusetts Constitution. See S.E. Morison,

History of the Constitution of Massachusetts 20 (1917).

12

nonmoving party" and "draw every reasonable inference in [that

party's] favor" to determine whether the "factual allegations

plausibly suggest[]" that the nonmoving party is entitled to

relief. Id., quoting UBS Fin. Servs., Inc. v. Aliberti, 483

Mass. 396, 405 (2019). This standard applies to our review of

the allowance of the motion for judgment on the pleadings with

regard to the claim of a violation of the MCRA. Our review of

the request for a declaratory judgment, however, differs. The

plaintiffs seek a declaration that the town's public comment

policy is unconstitutional. We review this as a facial

challenge based on the uncontested language of the policy

itself. This presents a question of law for the court requiring

de novo review. See Commonwealth v. McGhee, 472 Mass. 405, 412

(2015) (facial challenge to statute "present[s] questions of law

that we review de novo").

2. Article 19. The text of art. 19 provides: "The people

have a right, in an orderly and peaceable manner, to assemble to

consult upon the common good; give instructions to their

representatives, and to request of the legislative body, by the

way of addresses, petitions, or remonstrances, redress of the

wrongs done them, and of the grievances they suffer." As

written, this provision expressly envisions a politically active

and engaged, even aggrieved and angry, populace.

13

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); Fuller v. Mayor of Medford, 224 Mass. 176, 178 (1916)

(right to assemble under art. 19 "enable[s] the [town] voters to

have full and free discussion and consultation upon the merits

of candidates for public office and of measures proposed in the

public interests").

The provision also has a distinct, identifiable history and

a close connection to public participation in town government

that is uniquely informative in this case. As more fully

14

explained infra, 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.

Our interpretation of the text, history, and purpose of

art. 19 is further informed by the words and actions of Samuel

and John Adams, who not only theorized and commented upon the

right, but were historic actors well versed in its application

during the revolutionary period, particularly in the towns.

Both Adams cousins emphasized in their correspondence and their

actions the importance of the right to assemble. See Bowie, The

Constitutional Right of Self-Government, 130 Yale L.J. 1652,

1727-1728 (2021). Samuel Adams wielded it to great effect in

his attempt to "procure a Redress of Grievances" when the

British governor of the colony attempted to exercise control

over assemblies after the Boston Massacre. Id. at 1680, quoting

Report of the Committee to Prepare an Answer to Thomas

Hutchinson's Speech (July 31, 1770), in 47 Journals of the House

of Representatives of Massachusetts 1770-1771, at 63, 69 (1978).

More philosophically, John Adams explained that the right

of assembly was a most important principle and institution of

self-government, as it allowed "[every] Man, high and low . . .

15

[to speak his senti]ments of public Affairs." Bowie, supra at

1708, quoting Letter from John Adams to Edmé Jacques Genet (May

28, 1780), in 9 Papers of John Adams 350, 353 (G.L. Lint et al.

eds., 1996). Town inhabitants, he wrote, "are invested with

. . . the right to assemble, whenever they are summoned by their

selectmen, in their town halls, there to deliberate upon the

public affairs of the town." Letter from John Adams to the Abbé

de Mably (1782), in 5 Works of John Adams 492, 495 (C.F. Adams

ed. 1851). "The consequences" of the right of assembly, in

Adams's words, were that "the inhabitants . . . acquired . . .

the habit of discussing, of deliberating, and of judging of

public affairs," and thus, "it was in these assemblies of towns

. . . that the sentiments of the people were formed . . . and

their resolutions were taken from the beginning to the end of

the disputes . . . with Great Britain." Id. Alexis de

Tocqueville made a similar point in Democracy in America:

"Town-meetings are to liberty what primary schools are to

science; they bring it within the people's reach, they teach men

how to use and how to enjoy it." 1 A. de Tocqueville, Democracy

in America 55 (H. Reeve trans. 1862).

Our own case law interpreting art. 19 confirms Adams's

insights regarding the critical role of the right of assembly in

the towns in cultivating the spirit and practice of self-

16

government. As Justice Rugg wrote in Wheelock v. Lowell, 196

Mass. 220, 227 (1907):

"It is hard to overestimate the historic significance and

patriotic influence of the public meetings held in all the

towns of Massachusetts before and during the Revolution.

No small part of the capacity for honest and efficient

local government manifested by the people of this

Commonwealth has been due to the training of citizens in

the form of the town meeting. The jealous care to preserve

the means for exercising the right of assembling for

discussion of public topics . . . demonstrates that a vital

appreciation of the importance of the opportunity to

exercise the right still survives."

From the beginning, our cases have also emphasized that

"the fullest and freest discussion" seems to be "sanctioned and

encouraged by the admirable passage in the constitution,"

Commonwealth v. Porter, 1 Gray 476, 478, 480 (1854), so long as

the right is exercised in "an orderly and peaceable manner," id.

at 478. In fact, the drafters of art. 19 tracked the language

of the Pennsylvania Constitution but with the specific addition

of the clause providing that such assembly shall be done "in an

orderly and peaceable manner." Bowie, 130 Yale L.J. at 1707.

Further clarifying the type of limitations that ensure an

"orderly and peaceable" assembly, our more recent case law has

drawn on well-understood First Amendment principles and provided

for reasonable time, place, and manner restrictions. As we

stated:

"States may impose reasonable restrictions on the time,

place, or manner of protected speech and assembly 'provided

the restrictions "are justified without reference to the

content of the regulated speech, that they are narrowly

17

tailored to serve a significant governmental interest, and

that they leave open ample alternative channels for

communication of the information."'"

Desrosiers, 486 Mass. at 390-391, quoting Boston v. Back Bay

Cultural Ass'n, 418 Mass. 175, 178-179 (1994).

3. The application of art. 19 to the civility code. The

question then becomes whether the enforcement of the town's

civility code passes muster under art. 19. The code provides:

"All remarks and dialogue in public meetings must be

respectful and courteous, free of rude, personal, or

slanderous remarks. Inappropriate language and/or shouting

will not be tolerated. Furthermore, no person may offer

comment without permission of the [c]hair, and all persons

shall, at the request of the [c]hair, be silent. No person

shall disrupt the proceedings of a meeting."

As explained supra, the text, history, and case law

surrounding art. 19 provide for the "fullest and freest"

discussion of public matters, including protection of fierce

criticism of governmental action and actors, so long as that

criticism is done in a peaceable and orderly manner and is

consistent with time, place, and manner restrictions. Porter, 1

Gray at 478. See Desrosiers, 486 Mass. at 390-391. "Peaceable

and orderly" is not the same as "respectful and courteous."

There was nothing respectful or courteous about the public

assemblies of the revolutionary period. There was also much

that was rude and personal, especially when it was directed at

18

the representatives of the king and the king himself.8 See

Bowie, 130 Yale L.J. at 1677 ("in London, a columnist called

Boston's town meetings a 'declaration of war' and criticized

Boston's leaders for 'working up the populace to such a frenzy

of rage'").

Here, the town expressly provided a place for public

comment: the meeting of the board. The town also set the time,

after the conclusion of the regular meeting, as was the town's

right. Barron presented her grievances at the established time

and place.9 The town nonetheless then sought to control the

content of the public comment, which directly implicates and

restricts the exercise of the art. 19 right of the people to

request "redress of the wrongs done them, and of the grievances

8 The policy's prohibition on slander raises a different set

of questions that we need not resolve here. In Commonwealth v.

Surridge, 265 Mass. 425, 427 (1929), this court expressly carved

out slander from protection under art. 19. However, at least

under First Amendment principles, slander directed at public

officials requires actual malice. See Edwards v. Commonwealth,

477 Mass. 254, 263 (2017), S.C., 488 Mass. 555 (2021), citing

New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964).

9 A manner regulation restricts the way in which a speaker

communicates, i.e., the medium of communication or aspects of

that medium like the size of signs or the volume of audio. See

Regan v. Time, Inc., 468 U.S. 641, 656 (1984) (plurality

opinion) (manner regulations include "size and color

limitations" on photographs, "decibel level restrictions," and

"size and height limitations on outdoor signs"); Back Bay

Cultural Ass'n, 418 Mass. at 183 (ban on "forms of

entertainment" that "create the type of noise the city

legitimately seeks to eliminate" would be permissible). We are

not presented with disputed manner restrictions in the instant

case.

19

they suffer."10 The content sought to be prohibited -–

discourteous, rude, disrespectful, or personal speech about

government officials and governmental actions -- is clearly

protected by art. 19, and thus the prohibition is impermissible.

In sum, the town's civility code is contradicted by the letter

and purpose of art. 19.11

10This is not a case in which the public meeting was

limited to a particular item or items. Although that would be

content based, in order to function efficiently, towns must be

able to hold public meetings limited to a particular subject

without violating art. 19, so long as the town provides other

opportunities to exercise this right, as it did in the instant

case. Cf. Madison Joint Sch. Dist. No. 8 v. Wisconsin

Employment Relations Comm'n, 429 U.S. 167, 175 n.8 (1976)

("Plainly, public bodies may confine their meetings to specified

subject matter and may hold nonpublic sessions to transact

business").

11Given the detailed and emphatic text, history, and case

law, there is no reason to conclude that the State

constitutional right protected by art. 19 would be any less

protective than the right of assembly protected by the First

Amendment. Throughout most of its history, the right of

assembly clause in the First Amendment, although not interpreted

as being "identical" to the right of free speech, has not been

given much independent significance. See National Ass'n for the

Advancement of Colored People v. Claiborne Hardware Co., 458

U.S. 886, 911-912 (1982); Thomas v. Collins, 323 U.S. 516, 530

(1945) (rights to freedom of speech, assembly, and press,

"though not identical, are inseparable"). See also Blackhawk,

Lobbying and the Petition Clause, 68 Stan. L. Rev. 1131 (2016);

Bowie, 130 Yale L.J. at 1655; El-Haj, The Neglected Right of

Assembly, 56 UCLA L. Rev. 543 (2009); Inazu, The Forgotten

Freedom of Assembly, 84 Tul. L. Rev. 565, 570 (2010). Although

the Supreme Court's more recent decision in Duryea v. Guarneri,

564 U.S. 379, 394 (2011), somewhat reinvigorated the provision,

Blackhawk, supra at 1181, the vigor of art. 19 is unquestionable

as reflected in its text, history, and case law. Indeed, the

clear thrust of that text, history, and case law interpreting

art. 19 compels the conclusion that the town's civility code is

unconstitutional.

20

4. Article 16. Assuming that the request for declaratory

relief also includes a claim based on art. 16, as well as art.

19, we also conclude that art. 16 is violated.

In their request for declaratory relief, the plaintiffs

state:

"The [c]ourt should declare that the [d]efendants may not

regulate protected speech during any time period designated

for speech by the public based on the content of the

message of the speaker, the view point of the speaker, or

their desire to avoid criticism, ensure 'proper decorum',

or avoid 'personal' or derogatory or even defamatory

statements, unless such regulation is the least restrictive

means necessary to achieve a compelling government

interest."

Our cases interpreting art. 16 clearly support this request

for relief. They also do so without any need to survey, as the

parties do, the contested Federal case law distinguishing

limited and designated public forums and the different standards

of review applicable to these forums under the First Amendment.

As this court expressly stated in Walker v. Georgetown Hous.

Auth., 424 Mass. 671, 675 (1997): "We need not decide whether

we would find the [United States] Supreme Court's public,

nonpublic, and limited public forum classifications instructive

in resolving free speech rights under our Declaration of Rights"

in the instant case. Indeed, "we need not enter that fray

because, under our Declaration of Rights, the applicable

standard for content-based restrictions on political speech is

clearly strict scrutiny." Commonwealth v. Lucas, 472 Mass. 387,

21

397 (2015). See Massachusetts Coalition for the Homeless v.

Fall River, 486 Mass. 437, 441-442 (2020) (holding that strict

scrutiny applies to content-based regulation of protected

speech); Bachrach v. Secretary of the Commonwealth, 382 Mass.

268, 276 (1981) ("As a substantial restriction of political

expression and association . . . the legislation at bar should

attract 'strict scrutiny'").12

There is no question that this civility code is directed at

political speech, as it regulates speech in a public comment

session of a meeting of the board, and that it is content based,

as it requires us to examine what was said. See Opinion of the

Justices, 436 Mass. 1201, 1206 (2002) ("if the applicability of

12As we apply strict scrutiny here, the protection provided

by the State Constitution is at least as great if not greater

than the protection provided by the First Amendment for content-

based governmental restrictions. As noted supra, we are not

confronted with a public meeting limited to a particular item or

items. We recognize that even though a public meeting limited

to a particular purpose may require a content-based restriction

on comments, government must be able to hold such meetings to

function efficiently. Whether the government's right to hold

such meetings satisfies strict scrutiny or some lesser standard

under art. 16, we need not decide. Cf. Rowe v. Cocoa, 358 F.3d

800, 803 (11th Cir. 2004) ("There is a significant governmental

interest in conducting orderly, efficient meetings of public

bodies," which may be done via "confin[ing] their meetings to

specified subject matter"); White v. Norwalk, 900 F.2d 1421,

1425 (9th Cir. 1990) ("the Council does not violate the first

amendment when it restricts public speakers to the subject at

hand"); Smith vs. Middletown, U.S. Dist. Ct., No. 3:09-CV-1431

(D. Conn. Sept. 1, 2011), aff'd sub nom. Smith v. Santangelo,

518 Fed. Appx. 16 (2d Cir. 2013) ("The restriction of public

comment to items on the agenda is also reasonable because it

. . . facilitate[s] the official business of the Council").

22

the bill's requirements can only be determined by reviewing the

contents of the proposed expression, the bill is a content-based

regulation of speech"). As such, it must withstand strict

scrutiny, which means it must be "both 'necessary to serve a

compelling [S]tate interest and . . . narrowly drawn to achieve

that end.'" Lucas, 472 Mass. at 398, quoting Opinion of the

Justices, supra. It is neither. Although civility can and

should be encouraged in political discourse, it cannot be

required. In this country, we have never concluded that there

is a compelling need to mandate that political discourse with

those with whom we strongly disagree be courteous and

respectful. Rather, we have concluded that political speech

must remain "uninhibited, robust, and wide-open." Van Liew v.

Stansfield, 474 Mass. 31, 39 (2016), quoting New York Times Co.

v. Sullivan, 374 U.S. 254, 270 (1964). This civility code is

also drafted with an extraordinarily broad brush. It is

certainly not narrowly tailored.

Finally, the policy's requirement that the speech directed

at government officials "be respectful and courteous, [and] free

of rude . . . remarks" appears to cross the line into viewpoint

discrimination: allowing lavish praise but disallowing harsh

criticism of government officials.13 As the Supreme Court has

13At the same time, as between members of the public taking

opposite positions, a requirement that the comments be

respectful and courteous appears not to be viewpoint based, but

23

explained, "[w]hen the government targets not subject matter,

but particular views taken by speakers on a subject, the

violation of the First Amendment is all the more blatant."

Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819,

829 (1995). See Shurtleff v. Boston, 142 S. Ct. 1583, 1587

(2022) ("When the government encourages diverse expression --

say, by creating a forum for debate -- the [right to free

speech] prevents it from discriminating against speakers based

on their viewpoint"). Although we have not been required to

precisely define what constitutes viewpoint discrimination in

our case law, art. 16, like the First Amendment, certainly does

not permit viewpoint discrimination. See Roman v. Trustees of

Tufts College, 461 Mass. 707, 716-717 (2012); Opinion of the

Justices, 430 Mass. 1205, 1209 (2000).14

A provision "that public officials [can] be praised but not

condemned" is "the essence of viewpoint discrimination." Matal

v. Tam, 582 U.S. 218, 249 (2017) (Kennedy, J., concurring).

Speech that politely praises public officials or their actions

is allowed by the policy, but speech that rudely or

rather only content based. An example would be if a town

official told both sides debating a tax increase to fully

express their views but to do so courteously. Although still

impermissible, because it is content based, the restriction

would not be viewpoint based.

14 The same is true for art. 19.

24

disrespectfully criticizes public officials or their actions is

not. This constitutes viewpoint discrimination.

In sum, this civility code is unconstitutional under art.

16 as well as art. 19.

5. Overbreadth, vagueness, and permissible restrictions.

In the instant case, we have not been asked, nor should we

attempt on our own, to separate the unconstitutional from the

constitutional aspects of the town's civility code. We conclude

that it is so overbroad, so vague, and so subject to

manipulation on its face that it is not salvageable or

severable. See Massachusetts Coalition for the Homeless, 486

Mass. at 447 (statute declared facially invalid under art. 16 in

its entirety because we discerned an "unacceptable risk of a

chilling effect"); Lucas, 472 Mass. at 404 (statute declared

unconstitutional in its entirely because "even under a narrow

construction, there is a genuine risk that the operation of

[statute] will cast an unacceptable chill on core political

speech").

This is not to say that restrictions cannot be imposed on

public comment sessions consistent with arts. 16 and 19.

Reasonable time, place, and manner restrictions could include

designating when and where a public comment session may occur,

how long it might last, the time limits for each person speaking

25

during the public comment session, and rules preventing speakers

from disrupting others and removing those who do.

6. MCRA claim. We also have no difficulty concluding that

the dismissal of the MCRA claim should be reversed. Taking the

facts in the light most favorable to the plaintiffs, Kolenda

"interfere[d]" with Barron's clearly established constitutional

right under arts. 19 and 16 via "threats, intimidation or

coercion." G. L. c. 12, § 11H. As such, there was a violation

of the MCRA and no qualified immunity.

"To establish a claim under the [MCRA], 'a plaintiff must

prove that (1) the exercise or enjoyment of some constitutional

or statutory right; (2) has been interfered with, or attempted

to be interfered with; and (3) such interference was by threats,

intimidation, or coercion.'" Glovsky v. Roche Bros. Supermkts.,

Inc., 469 Mass. 752, 762 (2014), quoting Currier v. National Bd.

of Med. Examiners, 462 Mass. 1, 12 (2012). In the instant case,

the video recording shows that, first, Barron complained about

the open meeting law violations; then, Kolenda accused her of

slander and said, "[W]e're gonna go ahead and stop the public

comment session now"; next, Barron said, "[Y]ou need to stop

being a Hitler"; and finally, Kolenda ended the meeting and the

audio stopped. Subsequently, Kolenda stood up and started

yelling and aggressively pointing at Barron. The plaintiffs'

complaint alleges that Kolenda shouted, "You're disgusting," and

26

threatened to have her "escorted out" of the meeting. The video

recording does not show Barron after the end of the audio

portion.

Taking the facts, including the video recording, in the

light most favorable to the plaintiffs, Barron exercised her

constitutional right under arts. 19 and 16 to address the

meeting of the board and complain about the open meeting law

violations. Her comparison between Kolenda and Hitler was, at

least in the light most favorable to the plaintiffs, simply

hyperbole, describing Kolenda as behaving in a dictatorial

manner, that is, domineering or authoritarian. Although a

comparison to Hitler is certainly rude and insulting, it is

still speech protected by art. 16.15

15We note that personally insulting comments may rise to

the level of fighting words, that is, "face-to-face personal

insults that are so personally abusive that they are plainly

likely to provoke a violent reaction and cause a breach of the

peace," which are not protected speech. O'Brien v. Borowski,

461 Mass. 415, 423 (2012). See also Cohen v. California, 403

U.S. 15, 20 (1971) (fighting words are "personally abusive

epithets which, when addressed to the ordinary citizen, are, as

a matter of common knowledge, inherently likely to provoke

violent reaction"). We have also explained that "the fighting

words exception [to free speech] is 'an extremely narrow one.'"

O'Brien, supra, quoting Johnson v. Campbell, 332 F.3d 199, 212

(3d Cir. 2003). We further emphasize that elected officials are

expected to be able to respond to insulting comments about their

job performance without violence. See Commonwealth v. Bigelow,

475 Mass. 554, 562 (2016) ("personal insults and allegations

concerning [selectman's] alleged criminal past" were

"constitutionally protected political speech" because "central

thrust is criticism of him as a selectman"). Although not

presented in the instant case, we recognize that fighting words

from one public speaker may trigger a disturbance from another

27

In addition, the plaintiffs' allegations plausibly suggest

that Barron's rights were interfered with via threats,

intimidation, or coercion. Kolenda's response is not fully

captured by the video recording, but, accepting the plaintiffs'

account as true, Kolenda told Barron to stop speaking, started

screaming at her, and threatened to have her removed from the

meeting in response to her protected speech. If this is proved

at trial, she could establish a violation of the MCRA. See

Batchelder v. Allied Stores Corp., 393 Mass. 819, 823 (1985)

("sufficient intimidation or coercion" where "security officer

ordered [plaintiff] to stop soliciting and distributing his

political handbills"); Sarvis v. Boston Safe Deposit & Trust

Co., 47 Mass. App. Ct. 86, 93 (1999) (third element of MCRA

satisfied where "defendants attempted to interfere with the

plaintiffs' right to a summary process hearing by threatening

them with arrest and then bringing about their arrests").

On the facts alleged, Kolenda is also not entitled to

qualified immunity. As we have explained: "[G]overnment

officials performing discretionary functions, generally are

shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

member of the public, which may require action by government

officials.

28

known." LaChance v. Commissioner of Correction, 463 Mass. 767,

777 (2012), S.C., 475 Mass. 757 (2016), quoting Rodriques v.

Furtado, 410 Mass. 878, 882 (1991). More specifically, "[a]

right is only clearly established if, at the time of the alleged

violation, 'the contours of the right allegedly violated [were]

sufficiently definite so that a reasonable official would

appreciate that the conduct in question was unlawful.'"

LaChance, supra, quoting Longval v. Commissioner of Correction,

448 Mass. 412, 419 (2007). Nevertheless, "it is not necessary

for the courts to have previously considered a particular

situation identical to the one faced by the government

official." Caron v. Silvia, 32 Mass. App. Ct. 271, 273 (1992).

"It is enough, rather, that there existed case law sufficient to

clearly establish that, if a court were presented with such a

situation, the court would find that the plaintiff's rights were

violated." Id., quoting Hall v. Ochs, 817 F.2d 920, 925 (1st

Cir. 1987). In the instant case, the contours of the rights are

sufficiently clear, and a reasonable public official would

understand that his response to the exercise of those rights was

unlawful.

As discussed supra, the "full and free" discussion in town

meetings protected by art. 19 has a long and distinguished

history in Massachusetts. Fuller, 224 Mass. at 178. It is also

well established that restrictions on the content of political

29

speech must be "necessary to serve a compelling [S]tate interest

and . . . narrowly drawn to achieve that end" to satisfy the

requirements of art. 16, Opinion of the Justices, 436 Mass. at

1206, and that viewpoint discrimination is absolutely

prohibited, Rosenberger, 515 U.S. at 829.

At a public comment session in a meeting of the board, a

resident of the town thus clearly has the right to accurately

complain about violations of law committed by town officials and

object to other town actions, including its spending practices,

and to express her views vehemently, critically, and personally

to the government officials involved. Such a right is clearly

protected by art. 19 as well as art. 16 for the reasons

discussed supra. When a government official responds to a

resident's exercise of those rights by accusing her of

slandering the board, screaming at her, and threatening her

physical removal, it should be clear to him that his conduct is

unlawful. Thus, there is no basis for qualified immunity.

Conclusion. The order of judgment on the pleadings is

reversed, and the case is remanded for further proceedings

consistent with this opinion, including entry of a judgment

declaring that the town's public comment policy is

unconstitutional.

So ordered.