Can elected officials oust citizens from public meetings for being rude?

A legal case is currently pending in the highest court in Massachusetts that looks at the tradeoff between civility and free speech in public discourse, especially as it pertains to public meetings. Daniel Medwed, GBH’s legal analyst and Northeastern University law professor, joined Morning Edition hosts Paris Alston and Jeremy Siegel to talk about the case, Barron v. Kolenda. This transcript has been lightly edited.

Paris Alston: Daniel, we do often think about incivility in the context of big national issues, especially in recent years. But the case we're talking about today is dealing with something in our own backyard, right?

Daniel Medwed: Absolutely. Like many municipalities in the commonwealth, Southborough allows for residents to attend certain portions of the town meetings of the Board of Selectmen. And their participation is guided by a specific town policy called the Public Participation Policy, which provides 'that all remarks and dialog in public meetings must be respectful and courteous, free of rude, personal or slanderous remarks.' So that's the backdrop.

Here's what happened: In December 2018, at one of these meetings, the board recognized a local resident named Louise Barron to speak during the public comment portion of the meeting. She proceeded to criticize the town for certain increases to its budget, and then she condemned the board itself for some purported violations of the state open meeting law. At that point the chair allegedly cut her off, threatened to terminate the meeting, and accused her of slander. Barron then responded by saying something to the effect of, you need to stop being a Hitler. At which point the chair said that she would be forcibly removed unless she left on her own accord. She then did leave on her own volition and later filed a lawsuit for the infringement of her rights.

Jeremy Siegel: Even if you're upset about something, you usually need a legal reason to file a lawsuit. What is the legal theory behind this lawsuit? That it's a violation of First Amendment rights?

Medwed: Yes, that's exactly right, Jeremy. She filed a lawsuit in trial court in Worcester County in the superior court. And she raised a number of claims: That there were violations under a law called the Massachusetts Civil Rights Act; one of those claims was a First Amendment violation under the federal Constitution, as well as analogous claims under our Massachusetts Declaration of Rights, which has a similar provision. But she also sought what's called declaratory relief, seeking the court to enjoin or stop Southborough from continuing to enforce this policy. Those were the legal arguments.

Alston: So, Daniel, how did this all play out in court?

Medwed: Well, it was interesting. Down below, really early on in the litigation — before even discovery in the case, let alone anything in open court, any hearing or trial — the defendants moved to dismiss the case. And the trial court agreed with the defense, finding that this policy that prohibited rude, personal or slanderous remarks was constitutional, provided that it was employed just to maintain order or decorum or to prevent disruptions. Now, the judge did observe that in situations where it's interpreted to tamp down on speech, to tamp down on viewpoint, to tamp down on criticism of the board — that might be a problem. But the court said that wasn't the case here. Barron took issue with that decision, filed an appeal, and it's being heard in the Supreme Judicial Court tomorrow.

Siegel: So what's her specific challenge to the ruling? Is she saying that the board's trying to suppress her viewpoint? Or saying that barring rude, personal or slanderous remarks, as you said, is unconstitutional, even if it's only being used to prevent disruptions?

Medwed: That's really the core of her argument. But the legal argument before the court is a little more technical. She's claiming that the trial court misapplied the standard for ruling on a motion to dismiss at such an early stage in the litigation. She basically says that at that stage, the court should infer all of the facts in a way that support the plaintiff's position. In other words, courts shouldn't bounce cases so early in the process before a full record has been developed. So that's sort of the technical legal issue. It's a debate over the legal standard that was used to dismiss the case. But at its core, I think you're absolutely right. This is all about the First Amendment and what the scope of First Amendment protection should be.

Alston: Let's dig into that a little deeper, Daniel. How does the law work when it comes to free speech like this? Because we're talking about a town meeting. So I would imagine that the government can put some limits on the structure of public comments in a setting like that.

Medwed: That's absolutely right. And here's how it works: Supreme Court precedent, SJC precedent, all these cases suggest that it's okay to impose narrow, reasonable and objective limits on a public forum like this. They're often called time, place and manner restrictions. And the issue here is whether the restrictions are sufficiently narrow. Are they what's known as viewpoint neutral, that they're really only applied in a way to maintain decorum? Or do they monitor the content of speech in such a way as to suppress the speaker's viewpoint? Now, Barron's contention at bottom is that these civility provisions go to the content of her speech and that they were designed to prevent criticism of the town and the board. So that's really at the heart of this case.

Siegel: How do you think this is going to turn out in the end?

Medwed: Well, frankly, I'm not entirely sure, but but here's my take: On the one hand, it feels as though it was premature for the trial court to dismiss this case so early on before we really developed a record about what happened. So I imagine that the SJC could send this back to the lower court for discovery and further developments in the case. As for the more fundamental question, I am concerned about these civility provisions. I understand their utility, but I think they're often used to stifle dissent and to keep new voices from being heard, to sort of perpetuate the same old, same old power brokers. But the devil's in the details, and we'll really have to see how this plays out over time.