A Southborough couple says they were silenced by town officials, and the ACLU agrees

BOSTON — The state Supreme Judicial Court heard opening arguments Wednesday in the appeal of a Southborough couple's lawsuit against the town Board of Selectmen over a 2018 incident during a town meeting. Two major advocacy groups have filed amicus curiae briefs in support of the couple's case.

Worcester Superior Court Judge Shannon Frison ruled in favor of the town last year.

The American Civil Liberties Union of Massachusetts and PioneerLegal, the legal arm of the free-market think tank the Pioneer Institute, have filed briefs with the hopes of clarifying standards for public comment in the Massachusetts Open Meeting Law.

The lawsuit was initially filed in 2020 by Louise and Jack Barron, along with fellow resident Arthur St. Andre, against members of the Board of Selectmen at the time, along with the Board of Selectmen as a group and the town as an entity. The plaintiffs claim that their rights were violated by the board’s actions and that the board violated the Open Meeting Law.

The allegations stem from a Dec. 4, 2018, meeting during which Louise Barron and the then board Chairman Daniel Kolenda had a disagreement.

Barron came to the meeting with a homemade sign opposing tax increases and alleging violations of open meetings laws. During public comment, Barron said that while she understood the board consisted of volunteers, they broke the law and were not doing their best.

Kolenda interrupted Barron to say she was slandering town officials and that he would end public comment and go into recess if she continued to do so.

Barron, who is Jewish, responded: "You need to stop being a Hitler. You’re a Hitler. I can say what I want."

According to the complaint, Kolenda turned off his microphone, called a recess and then verbally attacked Barron.

The complaint alleges that Kolenda told Barron "You're disgusting," and said he would have Barron, a senior citizen, escorted out if she did not leave.

In addition, the complaint alleges that the selectmen improperly handled the minutes and audio of Kolenda's response to Barron.

Free speech suppression

In 2019, the state disagreed that the actions Southborough took were a violation of Open Meeting Law, after Louise Barron filed a complaint with the attorney general.

The lawsuit alleges that the town's public participation rules violate the First Amendment, that Kolenda's actions were an attempt to suppress free speech and that Kolenda's response caused Louise Barron significant distress.

The town's code states, "[a]ll 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 allowed.”

Frison ruled that Barron had failed to show that Kolenda deprived her of her rights.

Jack Barron said the couple feels strongly that Louise Barron's civil rights were trampled on at the meeting and that no citizen should receive similar treatment going forward.

"[Kolenda] told her basically, 'Shut up or I'm going to have the police remove you from this meeting,'" Jack Barron said.

In addition, Barron said, he hopes some punitive measure is taken against the Town of Southborough to discourage other municipalities from similar actions.

The Barrons have lived in Southborough since the late 1980s and have been involved in town municipal issues. However, Jack Barron said Louise has stopped publicly participating after the 2018 incident.

"She's been humiliated by the town elected officials; she's been frightened," Jack Barron said. "She has lost her vim and vigor to be involved in town issues."

Jack Barron said Frison did not give his wife's case the proper attention, saying she did not allow discovery and took on the role of fact finder and jury against their wishes.

On the Hitler comment, Barron said citizens have a right to say things others may find offensive, and public officials should be prepared to hear harsh statements.

"People who get involved in public meetings as elected officials need to be prepared to take a little bit of the heat," Barron said. "If you can't take the heat, that's not the right position for you."

In the ACLU of Massachusetts' brief, attorney Ruth A. Bourquin argues that Kolenda and the Board of Selectmen violated Article 16 of the Massachusetts Declaration of Rights, which was amended in 1948 to say "The right of free speech shall not be abridged."

'Civility provisions' unconstitutional

The ACLU brief posits that governments can establish objective and reasonable topic- or speaker-based boundaries for public forums such as a public participation session, but that Southborough's "civility provisions" for public comment are unconstitutional.

"[They] draw distinctions based on the content of speech within the scope of the forum and are not narrowly tailored to serve a compelling state interest," the brief reads.

The brief argues the civility standard is viewpoint-based, meaning the metric is a subjective measure that is open to argument. A viewpoint-based metric is unconstitutional, according to the brief.

In addition, Bourquin wrote that the SJC erred in ruling that Kolenda did not interfere with Barron's rights through "threats, intimidation or coercion."

"This case has serious implications for free speech and participatory democracy. The freedom to express criticism to and about public officials goes to the heart of what separates us from repressive regimes," Carol Rose, executive director of the ACLU of Massachusetts, said in a statement. "This policy — and others like it — should not be allowed to stand; we urge the Court to make clear that relevant political speech in public comment periods cannot be suppressed."

The PioneerLegal brief focuses on the argument that the town's civility policy and town officials violated Article 19 of the Declaration of Rights, the article that grants people the right to petition the government for redress of grievances.

The brief argues that Louise Barron was properly using the public comment session to address her grievances with the town, and was silenced for doing so. It states that the civility language in the public comment rules is a laudable attempt to keep discussion polite, but is used to control speech.

"By mandating the public's political expression be 'respectful and courteous, free of rude, personal or slanderous remarks' and 'inappropriate language,' the Policy gives local officials unfettered discretion tosilence political speech whose content and viewpoint they find unpleasant, challenging, critical, or otherwise 'inappropriate,'" the brief reads.

'Textbook example'

Selena Fitanides, a lawyer with PioneerLegal, said the matter is a very serious free speech case and pertains to government accountability.

"If the public can't go and speak to their elected officials and criticize their elected officials, which is what Mrs. Barron was attempting to do, then the system breaks down," Fitanides said.

Barron's participation in public comment was a "textbook example" of what Article 19 allows when Kolenda interjected, Fitanides said. In addition, Fitanides said Barron would not have been silenced if she had been complimentary to the board.

Fitanides referred to Kolenda's actions as "viewpoint discrimination," which requires the highest Constitutional scrutiny.

On the invocation of Adolf Hitler, Fitanides said the United States has a long tradition of citizens comparing politicians abusing their powers to famous dictators such as Hitler, even if Hitler comparisons have fallen out of fashion due to the scale of his atrocities.

In addition, Fitanides said Barron was not initially silenced for the Hitler comment, rather for the criticisms of the town officials for allegedly violating the Open Meeting Law. Fitanides said the town has "tried to change the facts" to say the Hitler comment was the center of the dispute.

Fitanides said PioneerLegal hopes the SJC issues some guidance on town meeting codes.

"We have not been able to come up with a way that you could draft one of these codes that would not offend the Declaration of Rights or the First Amendment of the federal Constitution," Fitanides said. "Because every time you interject a personal view about what is offensive or inappropriate or even slander, you get into viewpoint discrimination."

A brief submitted on behalf of the town argues that the SJC was correct in its judgement because the public comment segment constitutes a limited public forum where reasonable time, place and manner restrictions can be placed.

The brief says Barron was told she may be escorted out following the Hitler comment.

"[A]fter Ms. Barron twice provoked Mr. Kolenda by yelling 'You’re a Hitler!' no reasonable person would view defendant’s response as actionable 'intimidation,'" the brief reads.

In addition, the town's brief claims that Kolenda was not threatening Barron, but rather issuing a warning to use the lawful means of communicating her views.

Requests for comment from the Board of Selectmen and the town's attorney, John Davis, from Boston-based firm Pierce, Davis, and Perritano, were not returned.

This article originally appeared on Telegram & Gazette: Southborough couple open meeting, free speech case backed by ACLU