State Court Report: Massachusetts protects right to be “rude” in town meetings

“Peaceable and orderly” isn’t the same as “respectful and courteous.”

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Last week, the Massachusetts Supreme Judicial Court decided Barron v. Kolenda, a case in which a resident of Southborough was ordered to leave a town meeting after (correctly) accusing the board of selectmen of violating open meeting laws, characterizing them as spending like “drunken sailors,” and describing one of the members as “a Hitler.” The state supreme court declared unconstitutional the town’s public comment policy, which requires remarks in public meetings to be “respectful and courteous, free of rude, personal, or slanderous remarks.” Civility, the court held, can’t be required in a public comment session of a governmental meeting.

The court’s ruling was striking for its focus on the state constitution’s right to assembly. Harvard Law School professor Nikolas Bowie has called the right to assembly the “ugly duckling of the First Amendment” — long-neglected as an independent source of rights and usually conflated with free speech. That’s been the case in Massachusetts as well, with state assembly rights receiving little attention in recent case law. (In a separate analysis, the court also held that the board’s public comment policy violated the right to free speech under the state constitution.)

In Barron, the court looked to the text of the Massachusetts assembly clause, which “expressly envisions a politically active and engaged, even aggrieved and angry, populace.” It also focused on the provision’s “illustrious past.” Drafted by John Adams with assistance from his cousin Samuel, Massachusetts’s assembly clause, the court explained, “reflects the lessons and the spirit of the American Revolution.” It was seen by Adams as essential to self-government and arose “out of fierce opposition to governmental authority.”

As a result, the court argued, the assembly clause was supposed to protect even “rude, personal, and disrespectful” conduct — not unlike the colonists’ behavior in response to the king and his representatives in Massachusetts. (Fun fact: A London columnist called Boston’s town meetings a “declaration of war” and criticized its leaders for “working up the populace to such a frenzy of rage.”) The town could impose so-called time, place, and manner restrictions, the court explained, including designating when public comment is allowed, imposing time limits, and preventing disruption. But “peaceable and orderly” isn’t the same as “respectful and courteous.”

There’s good reason to pay more attention to the right to assembly. Bowie’s fascinating article, cited by the Massachusetts court, traces early American history to argue that both state and federal assembly clauses were “designed to protect a constitutional right of self-government.” They weren’t just an afterthought. In fact, when the Continental Congress drafted a declaration of fundamental rights in 1774, it included a right “peaceably to assemble” but not a right to free speech. In Massachusetts, the right to free speech was only added to the state constitution in 1948.

The right to assembly is also broadly applicable in the states. Forty-seven state constitutions have assembly clauses. Four, including Massachusetts’s, predate the federal Constitution. Nearly every state’s assembly provision is located in a separate location from the right to free speech. Most are also textually quite distinct from the First Amendment, including provisions referencing things like the right to “consult for the common good” or “make known their opinions to their representatives.”

Notably, a majority of states modeled their assembly clauses off the Massachusetts one. And in most states, the scope and meaning of these provisions have yet to be articulated by courts. This makes Barron doubly significant.

What’s at Stake in Wisconsin’s Supreme Court Election

The Wisconsin Supreme Court has had a conservative majority since 2008. That could change after an election on April 4, where a conservative candidate and a progressive candidate are vying for an open seat. Dustin Brown at the University of Wisconsin’s State Democracy Research Initiative looks at what could be on the docket for the new justice. “The Wisconsin Supreme Court is resolving issues that federal courts and the state’s political branches can’t (or won’t) tackle,” he writes. “Abortion access, electoral maps, and executive powers all hang in the balance.” READ MORE

Could State Constitutions Offer a Path Out of the Education Culture Wars?

School districts and state legislatures have increasingly been passing regulations restricting school curricula to limit the teaching of LGBTQ-related topics, critical race theory, and more. Professor Joshua Weishart from the West Virginia University College of Law argues that state constitutions offer a strong rebuttal to these proposed laws via an “unmistakable duty to educate democratically.” READ MORE

Massachusetts Looks to Evolving Equality Norms

In a case finding no state constitutional right to physician-assisted suicide, the Massachusetts Supreme Judicial Court parted ways with the U.S. Supreme Court’s approach to evaluating fundamental rights. Professor Martha Davis from Northeastern University School of Law writes, “[T]he court concluded that under the Massachusetts Constitution, history does not act as a straitjacket to preclude expanded protections for previously marginalized groups, such as women or minorities.” READ MORE

Promoting Popular Engagement in Constitutional Formation

In her scholarship roundup, Amanda Powers describes two recent law review articles offering ideas for more robust public involvement in state constitutional formation and interpretation. Glen Staszewski calls for using citizen juries to resolve disputes over the interpretation of ballot initiatives. Kevin Frazier argues we can revitalize the use of state constitutional conventions with participatory tools such as crowdsourcing. READ MORE

What Else We’re Reading

• Quinn Yeargain writes for Bolts about how state constitutional amendments adopted to counteract Obamacare are being used by abortion rights advocates.

Notable Cases

Hoke County Board of Education v. State of North Carolina, North Carolina Supreme Court
Blocked transfer of money to fund public schools, halting a November ruling by the high court’s then-Democratic majority and allowing the defendants to raise additional issues. Read more in the Associated Press.

Lilith Fund v. Dickson, Texas Supreme Court
Ruled that an anti-abortion advocate’s (pre-Dobbs) social media posts that characterized pro-abortion advocacy groups as “criminal” organizations were protected speech under the federal and state constitutions and dismissed a defamation lawsuit. Read more in Law360.

Commonwealth v. DiBenedetto, Massachusetts Supreme Judicial Court
Held that a defendant does not have a federal or state due process right to be granted the terms of a plea deal offered as a package to multiple defendants if not everyone agrees to it. Read more in the Boston Globe.

Colorado State Board of Education v. Adams County School District 14, Colorado Supreme Court
Agreed to hear a case seeking judicial review of Colorado State Board of Education decisions ordering low-performing school districts to take measures to improve. Read more in Chalkbeat.

National Association of Mutual Insurance Companies v. State of Nevada, Nevada Supreme Court
Upheld a temporary ban on insurers using credit score declines to penalize those who were unemployed due to the pandemic, ruling that it was consistent with the relevant statutes, was a constitutional delegation of power, and did not violate the federal or state contract clauses. Read more in the Las Vegas Review Journal.

Silva v. Noyola, Galveston County District Court (Texas)
A wrongful death suit has been filed by the ex-husband of a woman who had an abortion, seeking damages from three women who allegedly assisted her in obtaining abortion-inducing medication. Read more in Texas Tribune.

Image: Boston Globe/Getty