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The ACLU offers guidelines for how public officials can still maintain order

Despite a ruling by the state’s highest court that the Southborough select board violated a woman’s free speech rights by shutting her down after she referred to a member as a “Hitler,” local governmental bodies can still enforce rules of decorum — as long as it’s done in a content-neutral manner.

The ACLU of Massachusetts has sent a letter to the Massachusetts Municipal Lawyers Association and the Massachusetts Association of School Committees offering guidance on how to proceed following the Supreme Judicial Court’s Barron v. Kolenda decision, which found that a local bylaw requiring “civility” violated both the state constitution and the First Amendment.

We hope to work together to maintain peaceable and orderly meetings and to preserve constitutionally protected input by the public,” according to letter, signed by state ACLU executive director Carol Rose and senior and managing attorney Ruth A. Bourquin. The letter adds: “We understand that there is much to digest in the Court’s opinion and that some public bodies fear the decision will lead to disorderly public meetings. This fear is not warranted.”

The heart of the letter are 10 specific guidelines that local officials can follow in keeping unruly members of the public from getting out of hand. Some of them were outlined by the SJC itself — time limits for public comment and for individual speakers as well as rules that forbid speakers from interrupting each other. Some go beyond that. For instance, the letter says that rules preventing anyone from speaking unless recognized by the chair are lawful, as are limits to topics that are within the jurisdiction of the public body. Needless to say, anyone who threatens violence can be ordered to leave.

As someone who used to spend a considerable amount of time reporting on such meetings back, I think the ACLU’s guidelines contain a lot of common sense, and I hope local officials will take them to heart. Probably nothing could have prevented Louise Barron from calling Southborough select board member a “Hitler.” She was, after all, protesting what she regarded as the board’s violations of the state’s open meeting law, which is a legitimate topic. But if the board had rules in place stating that she couldn’t speak until recognized and was limited to five minutes, the damage would have been contained.

None of this should minimize how vile Barron’s comments were. Her behavior that night was loathsome. Frankly, even though the SJC made the correct decision, Barron should have apologized rather than filing a lawsuit to defend her own disgusting behavior.

You can read the ACLU’s full letter here.

The SJC’s ruling on civility was correct, but it’s unlikely to be the last word

The John Adams Courthouse, home to the Supreme Judicial Court. Photo (cc) 2008 by Swampyank.

The grotesque incivility of the age has caught up with local government. The state’s Supreme Judicial Court ruled last week that a bylaw in the town of Southborough that requires members of the public to act with “civility” when addressing officials was a violation of the Massachusetts Constitution as well as the First Amendment.

It’s hard to disagree. In fact, three years ago I gave a New England Muzzle Award to the president of the town council in Exeter, Rhode Island, for sponsoring a rule requiring “decorum” from people who appear at public meetings. As I wrote for GBH News, “It should be possible to exercise some control over a public meeting without an ordinance that tramples on the First Amendment.”

I haven’t changed my mind, and I think the SJC did the right thing in ruling against Southborough officials. But wow. The unanimous decision, Barron v. Kolenda, was written by Justice Scott Kafker. Adam Gaffin, who covered the case for Universal Hub, reports:

At issue was a 2018 meeting of the town Select Board when the chairman cut short the regular public-comment period after a local gadfly, upset about both a potential tax increase and a state determination that the board had earlier and repeatedly violated the state Open Meeting Law, called the chairman “a Hitler” twice (to which he replied she was “disgusting”). He cited the town’s “civility” bylaw, which requires statements to be “respectful and courteous, free of rude, personal, or slanderous remarks” and which bars shouting and “inappropriate language.”

The SJC ruled that the select board had engaged in “viewpoint discrimination” on the grounds that favorable comments about the board would not have similarly been shot down. The court said that the wording of the bylaw goes well beyond the state constitution, which says only that the right of free speech must be exercised in “an orderly and peaceful manner.”

I could go on, but Adam’s got the story well covered, including lengthy excerpts from the SJC’s ruling. Jennifer Smith has a bit more at CommonWealth Magazine about what actually went down at the select board meeting. According to Smith, the resident in question, Louise Barron, accused town officials of “spending like drunken sailors” and held a sign; on one side was written “Stop Spending,” and the other proclaimed “Stop Breaking Open Meeting Law.” Smith continues:

Board member Daniel L. Kolenda interrupted, saying she [Barron] was starting to “slander” the town officials. He announced the public comment period would close and the board would go into recess, at which point an outraged Barron said, “Look, you need to stop being a Hitler.”

Kolenda ordered the hearing ended and cameras turned off, the SJC said. He began shouting at Barron that she was “disgusting” and he would have her “escorted out” of the meeting if she did not leave. She left and later brought suit, appealing to the high court after a lower court dismissed her claims.

The select board may control public participation to some extent, the SJC notes, by adopting “time, place, and manner restrictions” concerning the length of the public comment session, time limits for each speaker, and rules against disrupting other speakers. Because such TPM restrictions, as they are called, are viewpoint-neutral, they do not raise any constitutional issues. The Southborough ordinance, though, went well beyond that. Justice Kafker’s decision ends with this:

At a public comment session in a meeting of the board, a resident of the town thus clearly has the right to accurately complain about violations of law committed by town officials and object to other town actions, including its spending practices, and to express her views vehemently, critically, and personally to the government officials involved…. When a government official responds to a resident’s exercise of those rights by accusing her of slandering the board, screaming at her, and threatening her physical removal, it should be clear to him that his conduct is unlawful.

As I said, the SJC clearly got it right. Carol Rose, executive director of the ACLU of Massachusetts, said in a statement: “This is a major victory for free speech and participatory democracy.” But when I was regularly covering city council, select board and school committee meetings back in the 1980s, it would have been unthinkable for a member of the public to refer to a public official as “Hitler” — and, yes, there were obnoxious, uninformed members of the public back then, too. But there was also a certain level of propriety that everyone adhered to. It would have been inconceivable for anyone to invoke Hitler.

We are in a different world, now. The SJC ruling harks back to an earlier age, invoking both John Adams, for whom its gathering place is named, and Samuel Adams. Barron v. Kolenda is unlikely to be the last word on how members of the public may or may not behave in governmental forums, either in Massachusetts or elsewhere.

SJC rules that deception in recording someone does not violate the law

Joe Curtatone. Photo (cc) 2019 by the Somerville Media Center.

The state Supreme Judicial Court on Monday issued an important — and, to me at least, surprising — clarification of the Massachusetts wiretapping law, ruling that it’s not necessary to obtain someone’s consent before recording them. All that’s needed, the court said, is to inform the second party that they’re being recorded. That doesn’t change even if the person making the recording lies about their identity. Here’s Travis Andersen’s account in The Boston Globe.

The case involves Kirk Minihane of Barstool Sports, who in 2019 recorded an interview with Somerville Mayor Joe Curtatone by claiming to be Globe columnist Kevin Cullen. Minihane then played the interview on his podcast. Curtatone sued, arguing that he would not have agreed to being recorded if he had known he was speaking with Minihane rather than Cullen. Justice Frank M. Gaziano writes:

Minihane did not secretly hear or record the challenged communication within the meaning of the act, because the plaintiff knew throughout the call that his words were being heard and recorded. The identity of the party recording the communication or, indeed, the truthfulness with which that identity was asserted is irrelevant; rather, it is the act of hearing or recording itself that must be concealed to fall within the prohibition against “interception” within the act.

And here’s Gaziano’s conclusion:

Because Minihane did not secretly record his conversation with the plaintiff, the challenged recording does not fall within the statutory definition of an “interception” within the meaning of the Commonwealth’s wiretap act. The plaintiff thus has not made factual assertions sufficient to state a cause of action upon which relief can be granted.

The first indication of where the case might be headed came earlier this year, when the ACLU and the Reporters Committee for Freedom of the Press filed a brief in support of Minihane and Barstool.

Massachusetts has often been described as a “two-party consent” state when it comes to recording conversations. But even before Minihane recorded Curtatone, it was clear in some legal circles that the word “consent” was misleading. For instance, here is an explanation of the law published several years ago by the now-defunct Digital Media Law Project at Harvard’s Berkman Klein Center for Internet & Society:

Massachusetts’s wiretapping law often referred to is a “two-party consent” law. More accurately, Massachusetts makes it a crime to secretly record a conversation, whether the conversation is in-person or taking place by telephone or another medium…. Accordingly, if you are operating in Massachusetts, you should always inform all parties to a telephone call or conversation that you are recording, unless it is absolutely clear to everyone involved that you are recording (i.e., the recording is not “secret”). Under Massachusetts’s wiretapping law, if a party to a conversation is aware that you are recording and does not want to be recorded, it is up to that person to leave the conversation.

Even after Monday’s SJC ruling, the law in Massachusetts remains unusually strict. According to the law firm Matthiesen, Wickert & Lehrer, 38 states plus the District of Columbia merely have a “one-party consent” law. Since the person making the recording has obviously given their consent, that means recording someone secretly in those states is legally permissible.

I tell my students that if they want to record an interview, whether in person or by phone, to ask for the subject’s consent. Then, after they turn on their recorder, tell them that they’re now recording and ask if that’s all right. That way, not only do they have the interview subject’s permission, but they have that permission on record. Minihane’s victory doesn’t change the ethics of recording someone without their knowledge.

One aspect of Monday’s ruling worth thinking about is that two-party consent, even under a looser definition of “consent,” can make it harder to engage in certain types of investigative reporting. Minihane obviously was just recording Curtatone for entertainment purposes. But undercover reporting, though less common than it used to be (thanks in part to the Food Lion case), can be a crucial tool in holding the powerful to account.

In Massachusetts, it remains illegal for a reporter to secretly record someone. The SJC’s decision doesn’t change that.

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In battle for access, OpenCourt wins another round

OpenCourt, an innovative project set up to cover proceedings in Quincy District Court, has won another round, as Supreme Judicial Court Associate Justice Margot Botsford has ruled that it may expand its live-streaming to a second courtroom.

In so doing, Botsford rejected a move by Norfolk County District Attorney Michael Morrissey and public defenders to keep OpenCourt out.

Earlier item here; Boston Globe story here; the text of Botsford’s ruling here.

Prosecutors, defenders seek to muzzle OpenCourt

Despite a ruling by the state Supreme Judicial Court in its favor, OpenCourt continues to run into legal roadblocks in its quest to cover proceedings in Quincy District Court.

In the latest move, the office of Norfolk County District Attorney Michael Morrissey and the Committee for Public Counsel Services — that is, public defenders — are seeking to block OpenCourt from expanding its livestreaming operations to a second courtroom known as Jury Room A.

The request will be heard by a single justice of the SJC.

According to OpenCourt:

As of this writing, OpenCourt is the only news organization currently prohibited from covering trials in Courtroom A, also known as Jury Room A.  Rule 1:19, the Massachusetts Camera in the Court statute, presumes that courtrooms are open to media….

Members of OpenCourt have for months openly planned to begin coverage of Jury Room A, and were set to begin livestreaming proceedings on Monday, July 16. Those plans are currently in a temporary state of limbo as we await  single justice review.

Morrissey recently received a Boston Phoenix Muzzle Award for attempting to block OpenCourt, which is affiliated with WBUR Radio (90.9 FM),  from posting archives of its livestreamed footage, a move that was shot down by the SJC.

Update, Aug. 15: SJC Associate Justice Margot Botsford ruled on Tuesday in favor of OpenCourt. The Boston Globe covers her decision here. The full text of her ruling is available here.

OpenCourt wins a crucial First Amendment case

John Davidow of WBUR and OpenCourt

Please pardon the near-silence I’ve been maintaining here. I’m co-chairing a faculty search committee, and this week and next leave me with little time for anything other than that and teaching. (And picking arguments on Twitter.)

But I do want to call your attention to an important decision by the state’s Supreme Judicial Court. On Wednesday, the court ruled that OpenCourt, the WBUR-affiliated project that offers gavel-to-gavel coverage of proceedings in Quincy District Court, cannot be ordered by the government to redact any of its coverage.

Essentially, what happened was this. The lawyer for the defendant in a horrific child-rape case blurted out the name of the victim during public court proceedings. District Attorney Michael Morrissey sought to impose an order prohibiting OpenCourt from including the girl’s name in its video archives.

OpenCourt argued, rightly in my view, that as a matter of standard journalistic practice, no news organization present would use the girl’s name — but that it would violate the First Amendment to order such discretion. Underscoring OpenCourt’s argument is that several news organizations were present that day, yet Morrissey sought an order only against OpenCourt.

The SJC’s decision says in part:

We conclude that any order restricting OpenCourt’s ability to publish — by “streaming live” over the Internet, publicly archiving on the Web site or otherwise — existing audio and video recordings of court room proceedings represents a form of prior restraint on the freedoms of the press and speech protected by the First Amendment and art.

OpenCourt and the DA’s office have been at loggerheads from the beginning. The SJC’s ruling should provide some clarity to what had been a murky situation.

John Davidow, executive editor of new media at WBUR and the force behind OpenCourt, recently spoke about the project and the SJC case with my media-law students. Joe Spurr, OpenCourt’s director, was a student in my media-law class a few years ago.

What they’re doing is an important experiment in opening up what has traditionally been the most closed part of government.

Margaret Marshall’s legacy

Margaret Marshall

The big local news of the day is that Margaret Marshall, chief justice of the state’s Supreme Judicial Court, is retiring in order to take care of her ailing husband, retired New York Times columnist Anthony Lewis.

But before Marshall joined the SJC, she was general counsel for Harvard University, using hardball tactics to make accusations of racial discrimination go away. I wrote about her Harvard days for the Boston Phoenix in 1999.

My take back then was that Marshall was not the liberal firebrand her supporters were hoping she’d be. Yet she will forever be known as the author of the Goodridge (pdf) decision, which paved the way for same-sex marriage in Massachusetts. It is a magnificent legacy, and Media Nation sends her best wishes upon her retirement.

And speaking of Lewis, I’ve read two of his books on the First Amendment, and they are both first-rate: “Make No Law: The Sullivan Case and the First Amendment” and “Freedom for the Thought We Hate: A Biography of the First Amendment.” Highly recommended.

An important libel ruling by the SJC

The state’s Supreme Judicial Court issued an important decision today that reaffirms protections for the news media against libel suits.

The case involved a town employee in Abington who was fired after sexually explicit images were discovered on his town-owned computer. The Enterprise of Brockton published a series of stories on official actions taken against the employee (who was eventually fired), based almost entirely on anonymous sources.

The SJC decision, written by Justice Robert Cordy, found that the fair-report privilege, which allows journalists to report libelous statements made in the course of official proceedings, applies even when those reports are based on anonymous sources.

Cordy also ruled that the Enterprise’s stories were substantially fair and accurate despite an error in one of the stories, and that the ex-employee could not sue the paper for intentionally inflicting emotional distress.

Those are the highlights. First Amendment lawyer Robert Ambrogi offers a deeper analysis here. The full text of the decision is here. (Via Universal Hub.)

One in five

With the Massachusetts Legislature on the verge of repealing a 1913 law that’s made it difficult for out-of-state gay and lesbian couples to marry here, we’ve reached a remarkable moment in the rise of same-sex marriage — more remarkable than perhaps most people realize.

Yes, only two states allow same-sex marriage: Massachusetts and California. But, since May, the state of New York has recognized same-sex marriages performed in other jurisdictions, making it possible for New York couples to marry in, say, Canada or Massachusetts.

The combined population of Massachusetts, California and New York is 62.2 million — nearly 21 percent of the total U.S. population of 299.4 million. That means one in five Americans lives in a state where same-sex marriage is recognized.

California voters might repeal same-sex marriage this November. But given that the state’s Republican governor, Arnold Schwarzenegger, opposes the anti-marriage referendum, there’s reason to be optimistic.

A final observation about Massachusetts. Yesterday’s state Senate vote to repeal the 1913 law was unanimous. The vote in the House is expected to be overwhelming. Can we finally stop the charade that gay marriage was forced on us by “unelected judges,” as critics inevitably charge?

It may have taken the state’s Supreme Judicial Court to start the debate. But last year opponents failed to win over the mere 25 percent of legislators needed to place the question on the ballot. And now our elected legislators are taking the final steps toward normalizing same-sex marriage, secure in the knowledge that most of their constituents either support marriage equality or don’t strongly object.

More: Esther offers some observations at Gratuitous Violins.

What about health care?

Not to buy into the savvy-bloggers-versus-clueless-MSM trope. But it does appear that the mainstream media might have missed one of the most significant aspects of yesterday’s vote by the Legislature to advance the anti-gay-marriage constitutional amendment. By their omission, the media may have helped create the false impression that legislators were acting on principle rather than expediency.

Both the Globe and the Herald today cite last week’s Supreme Judicial Court ruling that legislators must vote up or down on citizen initiatives as the main reason that the amendment was not killed through a parliamentary maneuver, as has happened on several occasions in the past.

In the Globe, Frank Phillips and Lisa Wangsness write:

[T]he vote marked a dramatic shift in fortune for social conservatives and Governor Mitt Romney, who just weeks ago had little hope the petition would move forward. Both they and same-sex marriage advocates said the Supreme Judicial Court’s ruling was the major factor that shifted the political ground in favor of the proposed amendment.

In the Herald, Casey Ross puts it this way:

[State Sen. Richard] Tisei and other observers said [Gov.-elect Deval] Patrick, who called a press conference to explain his opposition in the morning, did not seem to understand the impact of a Supreme Judicial Court ruling last week that unambiguously stated that lawmakers had to take an up-or-down vote.

WBZ-TV (Channel 4) political analyst Jon Keller writes this on his blog:

[T]he SJC’s ruling that legislators were obligated to vote today was cited by everyone involved in the con-con, from [Massachusetts Gay and Lesbian Political Caucus co-chair] Arline Isaacson to Trav [that would be Senate President Robert Travaglini] to Mitt Romney, as a key factor in what occurred. The same SJC that infuriated so many with the gay-marriage ruling has now restored its legitimacy in the minds of all but the most obtuse.

So there you have it — reluctant legislators obey the court and uphold their oath of office by voting to advance an amendment that only 31 percent of them support. Let’s give them a hand.

But wait — wasn’t there another constitutional amendment the legislators were supposed to vote on yesterday? Uh, the answer to that would be “yes.” A citizen initiative to amend the state constitution by guaranteeing everyone health care (Media Nation is not clear on the details) was supposed to be voted on yesterday, just like the anti-gay-marriage amendment. And guess what? It wasn’t. I can find virtually no mention of this in today’s coverage — but several bloggers picked up on it immediately.

Most prominent was Blue Mass Group, which has taken a pounding from its liberal readers for insisting that the Legislature vote on all constitutional amendments, including the gay-marriage ban. Last evening, Blue Mass Group blogger David Kravitz, coming off as sadder but wiser, wrote:

The results are in: the legislature took a vote on the merits of the anti-marriage amendment, and advanced it to the 2007-08 session, but did not do so on the health care amendment, so it died on the vine. So they have — no question — violated their oaths of office. And they’ve made those of us who asked them to follow the law on the marriage amendment, even though we suspected the results would be disappointing, look pretty silly. Thanks guys.

The Outraged Liberal, who had urged the Legislature to engage in “civil disobedience” by refusing to vote on the anti-marriage amendment, opined last night:

Process liberals may have also learned a very hard lesson — particularly with the Legislature’s refusal to vote on the health care amendment. Next time there may be a better understanding that principle of the question is more important than the principle of the process.

Universal Hub wraps up blogger comment this morning — again, acknowledging the hypocrisy of the Legislature for upholding the constitution by voting on gay marriage but then thumbing its nose on health care.

The sole mainstream-media reference to the health-care amendment I could find this morning in my admittedly less-than-comprehensive search was in this story, by David Kibbe of Ottaway News Service. His lengthy account of the gay-marriage debate ends with this:

In other action yesterday, the Legislature bottled up a proposed ballot question for universal health care by sending it a committee. Opponents of the question said it would hamper the state’s efforts to establish a landmark health care law to greatly expand health coverage. But those who backed it said it would help the state achieve its goal.

That seems pretty straightforward, doesn’t it? The legislative session expired yesterday, so the health-care amendment can no longer be considered for the 2008 ballot. Thus it would appear that the Legislature explicitly ignored the SJC’s vote-or-else decree, making a mockery of the supposed respect for the process it demonstrated by advancing the anti-marriage amendment.

The media’s failure to point out this prime example of constitutional hypocrisy seems so mind-boggling that I keep thinking I must be missing something; that for some technical reason perhaps the Legislature was not obligated to vote on health care. If I’m wrong, let me know — not that you need to be told.

Update: Laura Kiritsy of Bay Windows gets it right. Kiritsy also reports that legislators went ahead and voted despite a legal opinion from the Senate counsel that they didn’t have to.

Update II: Good editorial in the MetroWest Daily News.

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