03.09.2023 | Client Alerts | In The News

Client Alert: Municipal Board Hearing Gone Wrong (or Right)

Part of our practice involves permitting, zoning, and other appearances before municipal boards.  As part of that process, we often advise our clients as to the proper decorum surrounding such appearances and the role the client should play.  Just yesterday, the Massachusetts Supreme Judicial Court issued a ruling relating to an individual’s appearance before the Board of Selectmen of Southborough.  This individual (who is not our client) held a sign that stated, “Stop Spending” on one side and “Stop Breaking Open Meeting Law” on the other, stated the Board “ha[d] been spending like drunken sailors,” and said, “Look, you need to stop being a Hitler” and “You’re a Hitler” when she began to critique the Board during the public comment session at a meeting.  The Board’s policy required that, “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.”  After the meeting was suspended and the individual essentially escorted out, she claimed the policy violated Article 19 of the Massachusetts Declaration of Rights, which John Adams drafted with assistance from his cousin Samuel Adams.

The text of Article 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.” The Court recounted its illuminating constitutional history, found it was “directly applicable and dispositive of the claims”, and commented that “this provision expressly envisions a politically active and engaged, even aggrieved and angry, populace.” The Court noted that 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 Court determined that, among other things, the Board’s policy crosses the line into viewpoint discrimination (allowing lavish praise but disallowing harsh criticism of government officials) and then struck down the policy as violative of Article 19 and thus unconstitutional. While we may not have recommended this strategy before the Board, free speech is alive and well, thanks to our forefathers. The case is Barron et al. v. Kolenda et al., case number SJC-13284, and the American Civil Liberties Union of Massachusetts, Inc. and others filed amicus briefs in support of Ms. Barron’s right to free speech.


Jason A. Manekas