The Massachusetts SJC grappled with a First Amendment free speech appeal in Barron v. Southborough Board of Selectman. The defendant had participated in a public meeting to present comments about recent illegal activity the town was committing. The defendant quietly waited for the public comments section of the meeting and then began by asking basic questions. When she asked about the reasoning behind a proposal for a town manager instead of a town administrator, she was told by the moderator that there was “no back and forth during public comment.” She then wanted to ask about the board participating in irresponsible spending and allegations of violations of law. When she began to do so, the moderator interrupted Barron saying, “if you want to slander town officials who are doing their very best then we will stop this public comment session.” Subsequently, the defendant stated, “you need to stop being a Hitler, I can say anything I want.” The moderator then got up, came toward the defendant, and started pumping his fist at her, yelling at her aggressively, calling her disgusting and threatening to have her removed. The transcript from this public meeting only reflected the defendant’s inappropriate comment, not the threatening and aggressive acts of the moderator that followed. Barron was then traumatized and afraid to go to any other meetings or participate in local affairs like she had done her entire adult life.
The defendant claimed a violation of her First Amendment right to free speech and Article XIX of the Declaration of Rights in Massachusetts. The case explained that “speech on public issue occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” In First Amendment cases, a plaintiff must prove that their “exercise or enjoyment of constitutional rights has been interfered with, or attempted to be interfered with, and that the interference was by threats, intimidation, or coercion.”
Additionally, both state and federal courts have developed the Public Forum Doctrine, where the extent the Government can limit access for those seeking to exercise protected speech in a particular forum “depends on whether the forum is public or nonpublic.” There are three categories of forums: Traditional Public Forums, Designated Public Forums, and Non-Public Forums. Traditional public forums include places such as public streets. Designated refers to places where the government has invited the public to a certain place to assemble and speak together. Lastly, non-public forums are forums which are limited to use by certain groups or isolated to certain subjects. The court determined that this meeting was a designated public forum since the public comment aspect invited public participation and the purpose was to invite the residents of the town to assemble and speak.
Strict scrutiny is the analysis applied in free speech cases, meaning “any restriction based on the content of the speech must be narrowly tailored to serve a compelling government interest; restrictions based on viewpoint are completely prohibited.” In this case, the Chair was silencing a viewpoint that was disfavored by the board, and that is exactly what strict scrutiny prohibits. Additionally, the board based their behavior in ending the meeting on their policy that allows prohibition of any remarks that the Chair finds rude or disrespectful. The SJC is still to decide the case.