You Should Be Respectful (But You Don’t Have to Be)

In an interesting parallel to the developments in the Maine Law Court that indicate a revival of state constitutional interpretation, the Massachusetts Supreme Judicial Court issued a noteworthy opinion examining the protections granted to free speech under the Commonwealth’s constitution.

The case, Barron v. Kolenda, involved a town ordinance requiring all comments in public meetings to be “respectful and courteous, free of rude, personal or slanderous remarks.”  The lawsuit arose after a town meeting degenerated to a level that the town’s board of selectmen deemed to be less than respectful.  After a town resident alleged that the board had violated open meeting laws, the board recessed the meeting.  A shouting match ensued, with the resident referring to a board member as “a Hitler” and the board member describing the resident as “disgusting.”  The resident was compelled to leave the board meeting.

The town resident challenged the town ordinance under Massachusetts’ constitution.  Article 19 of the Massachusetts Constitution guarantees the right “in an orderly and peaceable manner, to assemble to consult upon the common good” and to seek, “by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer.”  The court observed that

[t]he 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.

Examining the rich history of Article 19, drafted by John and Samuel Adams, the court concluded that the right of assembly “was the most important principle and institution of self-government,” and was designed to permit the “fullest and freest discussion” so long as it was “orderly and peaceable.”  Ultimately, the court concluded that the requirement that discussion be “respectful and courteous” violated this guarantee.  The court then went on to conclude that the ordinance also violated Article 16, the free speech provision in the Massachusetts Constitution.  Noting that this provision differs in scope from the U.S. Constitution, the court found that the law targeted protected political speech and failed strict scrutiny because it constituted viewpoint discrimination.

The Barron decision has drawn national commentary, and provides a notable example of careful state constitutional interpretation.  It also sheds interesting light on Maine’s own guarantee of the right “in an orderly and peaceable manner to assemble to consult upon the common good” and to request “by petition or remonstrance, redress of their wrongs and grievances.”  Debate should be civil, but – as the Massachusetts Supreme Judicial Court concluded – civility codes are unconstitutional.