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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.