WEBVTT

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<v ->SJC-13284.</v>

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Louise Barron and others

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v. Southborough Board of Selectman and another.

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<v ->Okay, Attorney Kremer.</v>

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<v ->Good morning.</v>

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Good morning, and may it please the court.

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My name is Ginny Sinkel Kremer,

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and I am counsel for Mrs. Louise Barron,

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the appellant in this case.

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In this case, the court will have to decide

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what protections the Declaration of Rights affords

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to the speech of citizens who are criticizing

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their elected government officials at a place and at a time

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that the government has opened for such speech.

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<v ->Are any civility codes constitutional?</v>

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<v ->Your, Your Honor, our position is that</v>

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the civility code at issue in this case

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as set forth in the policy and as applied

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is unconstitutional because it is standardless.

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It invites the use of content-based restrictions

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and regulations by public officials

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who do not wish to be criticized.

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<v ->Is it possible to draft a constitutional civility code?</v>

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<v ->Your Honor, I guess that would depend on</v>

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what you meant by civility code.

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You know, civility codes are...

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problematic in that what is civil or not civil

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is in the eye of the beholder.

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And the biggest problem with civility codes is not just

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what happened to my client in this case,

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but this case, the facts of this case illustrate that

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she dared to criticize and was cut down from that.

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She was trying to inform her fellow citizens.

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<v ->Would you concede that if your client started</v>

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with the references, the hateful references to Hitler,

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that she should have been shut down?

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<v ->Your Honor, I think that all of the cases</v>

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from this court's cases

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to cases by the United States Supreme Court

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recognized that public officials need to be prepared for

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caustic and offensive criticism at times.

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<v ->So if your client opened with, "I think you're a Hitler,"</v>

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she should be allowed to speak?

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<v ->Well, if my client opened with,</v>

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"You are behaving like a fascist dictator,"

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would that matter to you?

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If she said, "you are a criminal.

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You're behaving like a criminal because you violated the law

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on multiple occasions."

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Where do you draw the line?

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When somebody in, in the case to support this,

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put themselves forth in front of voters

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and step forward to become an elected leader,

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they need to understand that their decisions

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are gonna be subject to criticism

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and sometimes it might even hurt their feelings.

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<v ->So if the,</v>

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if your client stood up in this public common and said,

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"I think you're a pedophile," is that okay?

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Should she be allowed to speak?

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<v ->Your Honor, where exactly you draw the line is</v>

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thankfully not my job.

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My client did not say that.

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My client-

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<v Justice Gaziano>The question I have is,</v>

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<v ->Yeah.</v>

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<v ->Would that be okay on your view</v>

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of the First Amendment in our state constitution?

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<v Attorney Kremer>To the extent that it, you know,</v>

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that speech constitutes name calling

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or rude or insulting behavior,

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prior restraints on that or content-based restrictions

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are unconstitutional.

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Where you veer into accusing somebody

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of having committed a crime without any basis in fact,

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is a different factual scenario than incurred in this case.

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<v Justice Cypher>Now, do you-</v>

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I'm sorry, I didn't mean to interrupt.

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<v ->I didn't get an answer, but you can ask.</v>

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<v ->No, go ahead, if you can get an answer.</v>

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<v ->I'm not gonna get one, so go ahead.</v>

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<v ->Okay, my question is to do with the forum.</v>

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And that is, do you we have to decide the issue

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of public forum or nontraditional forum in this case

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to resolve it?

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<v Attorney Kremer>Your Honor, I don't believe so</v>

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because I believe that whatever the forum is,

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this was content-based restriction by the select board.

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<v ->Would the forum, the base-</v>

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the nature of the forum change the standard of review

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if it's content-based?

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I mean, would one be strict scrutiny or...?

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<v ->Your Honor, this was a limited designated public forum</v>

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and the appropriate standard of review

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is definitely strict scrutiny.

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<v ->We have to show that much?</v>

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Isn't there a factual issue of what it is?

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This is a motion of judgement on the pleadings.

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<v Kremer>Correct, Your Honor.</v>

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<v ->So, before you, before you go and argue what it is,</v>

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isn't there a factual dispute that has to be resolved

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as to what it is?

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<v ->Well, Your Honor, the only factual dispute here</v>

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is whether or not the policy restricts

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the limited designated forum

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to only residents of Southborough or not,

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and our position is, it doesn't matter.

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You know, here is a resident of Southborough,

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so whether or not was restricted or not,

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she is qualified to speak.

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She was recognized to speak.

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She followed all the rules, she waited her turn.

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So this isn't a situation where discovery

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needs to really resolve that issue.

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The town of Southborough makes a lot out of,

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and so does the judge below,

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out of the one reference to having to state your address,

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as if people who don't live in Southborough

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somehow lack addresses that limit it.

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But they're really just bootstrapping that limitation

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or that reference to addresses into trying to

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convince this court that this was a non public forum,

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which is-

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<v ->Well, could I just test you on that?</v>

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because the paragraph that you don't cite

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in the amended complaint is paragraph two of the policy,

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which clearly limits the forum to town residents.

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<v ->Well, Your Honor, I will give you,</v>

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concede that for purposes of this argument.

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I don't think that it matters, again, because I don't-

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<v ->Whether or not you concede it,</v>

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it's in paragraph two of the policy.

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It says, "Town residents can speak at these forums."

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<v ->Right, but that doesn't mean</v>

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that nobody else can speak at these forums.

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I think that there is a lot of other language

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that talks about the public as opposed to town residents--

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<v ->Can I just go back to your question about,</v>

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or your point about content-based restrictions.

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Why do we even have to go there?

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I mean, isn't this viewpoint-based descriptions,

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which are, restrictions, which are unconstitutional

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no matter what forum we are in?

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<v ->Yes, Your Honor, I think that the policy as well,</v>

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you know, on its face and as applied,

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doesn't necessarily, on its face,

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engage in viewpoint-based discrimination,

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but certainly Mr. Kolenda's actions in this case

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engaged in viewpoint discrimination

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because as soon as the plaintiff tried to

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bring to light a fact that Mr. Kolenda and the board

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was trying to keep under the radar,

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which was the attorney general's recent findings

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of dozens more open-meeting law violations,

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which the board used acronyms to describe--

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<v ->So you're not any longer making</v>

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a facial challenge to the policy?

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You're just saying as applied

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in this context it is unconstitutional?

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<v ->Facially and as applied, I think--</v>

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<v ->All right, well then facially,</v>

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you kinda need to go to the actual words

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of the policy, right?

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And show that in no,

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under no circumstances is that constitutional.

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<v Kremer>I disagree, Your Honor.</v>

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<v ->Why?</v>

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<v ->Because in most circumstances,</v>

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it's unconstitutional and I think that there are cases--

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<v ->What is your legal authority for that being the test?</v>

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That usually, 51% of the time, it's unconstitutional?

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<v Kremer>Your Honor, I believe that it's cited</v>

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that that particular line of cases

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is cited in the ACLU's brief

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and I can find that reference for you--

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<v ->Isn't it the line of cases that say,</v>

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if it interferes with a substantial amount

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of free speech on its face

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then it can be declared unconstitutional, right?

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<v ->Correct.</v>

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<v ->That's Perry, and some of the</v>

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Supreme Court cases that draw on that, right?

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<v ->Correct, and that's because it goes to the chilling effect</v>

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that this kind of restraint, these kinds of regulations have

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because it leads to even self-policing

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and I think that that is illustrated

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by Mr. Kolenda's announcement

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of those very buzz words and phrases

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before entertaining public speak is,

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"Don't you dare to offend me.

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Don't you dare to criticize this board."

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He was very selective in his rendition

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of which parts of the policy he called out.

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And when my client approached the board politely,

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without disruption and not shouting,

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and was trying to bring to the Board's attention

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and to the public's attention,

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the fact of the attorney general's findings,

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he immediately shut her down.

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So this is before the utterance of the term Hitler.

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This is before anything that could be called,

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by any stretch of the imagination, disruptive.

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He shut her down based on the language of the policy.

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<v ->He shut her down, but,</v>

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at least for your civil rights claim,

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you're gonna need him ordering, basically saying,

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"I'm gonna bring in the cops if you don't shut up," right?

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You're not gonna, you're not gonna meet

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the threats, intimidation, and coercion requirements

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on your civil rights claim without going deeper into Hitler

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and the response to Hitler, right?

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<v ->Well, I don't think that he,</v>

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he did threaten to have her physically removed

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and the complaint makes all of those allegations.

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I don't think-

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<v ->He did or he didn't?</v>

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<v ->He did.</v>

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<v ->But he doesn't do that</v>

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until after she compares him to Hitler, right?

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<v ->I don't think that that has any bearing on the analysis-</v>

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<v ->But Counsel, are you appealing the civil rights claims?</v>

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<v ->Yes.</v>

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<v Justice Cypher>You still-</v>
<v ->The dismissal, yes, yes.</v>

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<v ->The dismissal, okay.</v>
<v ->Yes.</v>

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<v ->So but, I guess back,</v>

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going to Justice Lowy's and Justice Wendlandt's questions,

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we've got two different-

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We've got a facial challenge and an applied challenge.

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The facial challenge...

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And we also have a civil rights claim

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and we also have a state and federal constitutional claim,

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so we're gonna have to-

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<v ->No federal constitutional claim.</v>

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<v ->You're not relying on the federal constitution?</v>

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<v ->No, no. It's just, it's simply, it was remanded from the,</v>

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the original complaint stated federal claims.

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<v ->So just the state constitution you're relying on?</v>

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<v ->Correct, Your Honor.</v>

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<v ->And has the state constitution,</v>

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in our state constitutional analysis,

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have we done this limited, I guess in the ACLU's brief,

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a designated limited public forum?

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Have we, have we gone into this morass,

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which the Supreme Court's done?

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<v ->In some cases, it has been touched upon,</v>

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but not in the context of this case,

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although there are two superior court cases

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Judge Wilkins just rendered--

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<v ->Again, again, not precedent for us, so I--</v>

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<v ->Correct, but they set forth,</v>

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analyses that this court

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may want to become aware of, in looking at this.

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There's a case out of Nantucket right now,

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00:12:04.710 --> 00:12:09.210
in which Judge Wilkins dismissed,

255
00:12:09.210 --> 00:12:13.230
refused to dismiss the town's claims on the same,

256
00:12:13.230 --> 00:12:15.840
basically on the same factual scenario

257
00:12:15.840 --> 00:12:19.090
and there's also the Spalding case out of Natick

258
00:12:20.220 --> 00:12:24.600
that analyzes this court's precedent

259
00:12:24.600 --> 00:12:27.510
in what I believe is a useful way.

260
00:12:27.510 --> 00:12:30.750
But so, no, this court hasn't specifically addressed--

261
00:12:30.750 --> 00:12:32.310
<v Justice Kafker>Can I?</v>
<v ->This factual scenario.</v>

262
00:12:32.310 --> 00:12:34.680
<v ->So the US Supreme Court, again so,</v>

263
00:12:34.680 --> 00:12:35.940
on the civil rights claim,

264
00:12:35.940 --> 00:12:38.490
I'm particularly concerned with.

265
00:12:38.490 --> 00:12:41.640
So, we do need to sort of track through

266
00:12:41.640 --> 00:12:44.880
the whole factual scenario, right? On that.

267
00:12:44.880 --> 00:12:45.901
<v ->Yes.</v>

268
00:12:45.901 --> 00:12:46.950
<v ->And-</v>

269
00:12:46.950 --> 00:12:49.800
<v ->As alleged in the complaint drawing inferences.</v>

270
00:12:49.800 --> 00:12:50.850
<v ->The US Supreme Court,</v>

271
00:12:50.850 --> 00:12:52.830
when they do their civil rights claims,

272
00:12:52.830 --> 00:12:54.810
they have a qualified immunity analysis.

273
00:12:54.810 --> 00:12:59.340
Do we do that on state's civil rights claims?

274
00:12:59.340 --> 00:13:02.310
Or do we not get into qualified immunity at all?

275
00:13:02.310 --> 00:13:06.040
<v ->Your Honor, the qualified immunity issue</v>

276
00:13:08.802 --> 00:13:11.670
is something that the superior court

277
00:13:11.670 --> 00:13:13.950
didn't even mention.

278
00:13:13.950 --> 00:13:18.690
And, you know, that defense depends upon contested facts

279
00:13:18.690 --> 00:13:21.210
so I'm not sure that at this juncture

280
00:13:21.210 --> 00:13:24.543
it's appropriate for this court to weigh in on that.

281
00:13:26.160 --> 00:13:28.320
<v ->Speaking of contested facts,</v>

282
00:13:28.320 --> 00:13:30.330
and I'm sorry to interrupt you, Justice Kafker-

283
00:13:30.330 --> 00:13:31.500
<v Justice Kafker>No, no, go ahead.</v>

284
00:13:31.500 --> 00:13:32.333
<v ->What?</v>

285
00:13:32.333 --> 00:13:33.166
<v Justice Kafker>Go ahead.</v>

286
00:13:33.166 --> 00:13:35.460
<v ->Oh, is that, um, you were mentioning before</v>

287
00:13:35.460 --> 00:13:38.760
the open-meeting law and the judge,

288
00:13:38.760 --> 00:13:39.990
the superior court judge,

289
00:13:39.990 --> 00:13:42.750
used that open-meeting law conclusion

290
00:13:42.750 --> 00:13:44.820
or the finding as a factor

291
00:13:44.820 --> 00:13:47.790
in classifying the school board meeting

292
00:13:47.790 --> 00:13:51.090
as a designated public forum, correct?

293
00:13:51.090 --> 00:13:53.280
<v ->Yes, it was not a school board, however.</v>

294
00:13:53.280 --> 00:13:56.610
It was a select board, which is actually a big difference.

295
00:13:56.610 --> 00:13:58.860
<v Justice Cypher>Okay, but is it still true, though,</v>

296
00:13:58.860 --> 00:14:01.865
that is was, the open-meeting law,

297
00:14:01.865 --> 00:14:03.420
she considered that and it is valid thing

298
00:14:03.420 --> 00:14:06.617
we can consider in the selectman meeting?

299
00:14:06.617 --> 00:14:08.820
<v ->(stammering) I'm confused by what part</v>

300
00:14:08.820 --> 00:14:10.920
of the open-meeting law wasn't valid to consider?

301
00:14:10.920 --> 00:14:12.610
<v ->The judge said the fact that</v>

302
00:14:13.500 --> 00:14:16.140
the open-meeting law is another,

303
00:14:16.140 --> 00:14:18.000
just another factor to consider,

304
00:14:18.000 --> 00:14:20.610
that you have to have an open meeting.

305
00:14:20.610 --> 00:14:21.960
It's another factor to consider

306
00:14:21.960 --> 00:14:24.210
in this public analysis. It's her decision.

307
00:14:24.210 --> 00:14:25.790
<v ->Um, I mean I don't really think it goes</v>

308
00:14:25.790 --> 00:14:29.790
to the forum analysis, you know? This is a--

309
00:14:29.790 --> 00:14:30.623
<v ->Then let me ask you,</v>

310
00:14:30.623 --> 00:14:34.170
does it have any impact on our conclusions or..

311
00:14:34.170 --> 00:14:39.150
how should we consider the last attorney general fact?

312
00:14:39.150 --> 00:14:43.650
Find one that is on this meeting, that we're--

313
00:14:43.650 --> 00:14:45.030
<v ->Oh, I'm sorry, your honor.</v>

314
00:14:45.030 --> 00:14:46.710
I understand what you're saying.

315
00:14:46.710 --> 00:14:49.350
That there had not been an open meeting or violation,

316
00:14:49.350 --> 00:14:52.140
with respect to the doctoring of the minutes.

317
00:14:52.140 --> 00:14:53.490
I don't think that it has any bearing

318
00:14:53.490 --> 00:14:55.650
on the resolution of this case.

319
00:14:55.650 --> 00:14:57.690
<v Justice Cypher>Well, what were the factors, I mean,</v>

320
00:14:57.690 --> 00:14:59.580
shouldn't we have that in front of us?

321
00:14:59.580 --> 00:15:01.170
<v ->Well, your Honor, we're not appealing</v>

322
00:15:01.170 --> 00:15:05.867
the dismissal of the count.

323
00:15:05.867 --> 00:15:06.700
(both) on the open meeting loss

324
00:15:06.700 --> 00:15:09.780
<v ->Right. And I mixed up the tort claims</v>

325
00:15:09.780 --> 00:15:11.520
with the civil rights claim before.

326
00:15:11.520 --> 00:15:13.530
But, I guess I don't understand

327
00:15:13.530 --> 00:15:16.950
why this is not a factor we could look at,

328
00:15:16.950 --> 00:15:20.760
or could look at what the AG found

329
00:15:20.760 --> 00:15:23.580
on the open meeting law violation issue.

330
00:15:23.580 --> 00:15:26.130
<v ->Because that was a very narrow finding</v>

331
00:15:26.130 --> 00:15:28.110
that the open meeting law wasn't violated

332
00:15:28.110 --> 00:15:29.550
and we're not contesting that.

333
00:15:29.550 --> 00:15:31.590
So, none of that

334
00:15:31.590 --> 00:15:33.653
<v ->None of that is relevant?</v>

335
00:15:33.653 --> 00:15:34.683
<v ->No.</v>

336
00:15:35.550 --> 00:15:39.723
<v ->Let me ask you again about your free speech absolutism.</v>

337
00:15:41.970 --> 00:15:43.740
What about fighting words?

338
00:15:43.740 --> 00:15:46.260
So, you raise a facial challenge.

339
00:15:46.260 --> 00:15:48.360
If we agree with you and we say, you're right.

340
00:15:48.360 --> 00:15:49.530
This, on its face,

341
00:15:49.530 --> 00:15:52.653
this statute violates free speech principles.

342
00:15:53.910 --> 00:15:57.600
What else do we say as far as fighting words,

343
00:15:57.600 --> 00:15:59.730
slanderous words.

344
00:15:59.730 --> 00:16:00.979
<v Kremmer>Well--</v>

345
00:16:00.979 --> 00:16:01.812
<v ->Accusing someone of being a pedophile.</v>

346
00:16:01.812 --> 00:16:03.025
What do we say?

347
00:16:03.025 --> 00:16:04.500
<v ->(stammering) I mean, you know, Your Honor,</v>

348
00:16:04.500 --> 00:16:07.470
I think that fighting words is.

349
00:16:07.470 --> 00:16:10.277
<v ->It's directional words. I mean, you know,</v>

350
00:16:10.277 --> 00:16:12.030
? are those okay?

351
00:16:12.030 --> 00:16:15.630
<v ->No, the term that I think is preferable</v>

352
00:16:15.630 --> 00:16:17.400
to fighting words is words

353
00:16:17.400 --> 00:16:22.080
that are calculated to incite imminent violence.

354
00:16:22.080 --> 00:16:25.230
She was angry that she...

355
00:16:25.230 --> 00:16:27.564
<v ->So it's okay to prohibit.</v>

356
00:16:27.564 --> 00:16:28.770
<v Kremer>If she called them a name.</v>

357
00:16:28.770 --> 00:16:31.080
<v ->Okay, it's okay to prohibit that.</v>

358
00:16:31.080 --> 00:16:32.116
<v ->It's okay to prohibit incitement</v>

359
00:16:32.116 --> 00:16:36.499
to imminent violence, yes.

360
00:16:36.499 --> 00:16:37.728
<v ->I was trying to get to your absolutism.</v>

361
00:16:37.728 --> 00:16:38.921
All right. Thank you.

362
00:16:38.921 --> 00:16:39.754
<v Kremer>Yes.</v>

363
00:16:39.754 --> 00:16:42.450
<v ->What about differences in our interpretation</v>

364
00:16:42.450 --> 00:16:44.370
of the Declaration of Rights

365
00:16:44.370 --> 00:16:46.980
as it relates to First Amendment issues?

366
00:16:46.980 --> 00:16:48.360
Are you familiar with the

367
00:16:48.360 --> 00:16:51.090
Walker versus the Georgetown housing case?

368
00:16:51.090 --> 00:16:52.410
<v ->Yes, I am, Your Honor.</v>

369
00:16:52.410 --> 00:16:54.390
<v ->What does that say about</v>

370
00:16:54.390 --> 00:16:57.150
enhanced constitutional protections

371
00:16:57.150 --> 00:16:59.520
under the Declaration of Rights in this area?

372
00:16:59.520 --> 00:17:00.660
<v ->Well, I think that this court</v>

373
00:17:00.660 --> 00:17:02.790
has always left open the possibility

374
00:17:02.790 --> 00:17:06.600
that Article 16 is more expansive

375
00:17:06.600 --> 00:17:08.460
than First Amendment jurisprudence,

376
00:17:08.460 --> 00:17:10.500
but has never ruled on that

377
00:17:10.500 --> 00:17:14.670
in the context of facts presented here.

378
00:17:14.670 --> 00:17:16.531
But yet, you know, it certainly is.

379
00:17:16.531 --> 00:17:18.120
<v ->But I would argue that</v>

380
00:17:18.120 --> 00:17:20.340
even under federal jurisprudence,

381
00:17:20.340 --> 00:17:22.200
this policy on its face

382
00:17:22.200 --> 00:17:24.630
and as applied is unconstitutional.

383
00:17:24.630 --> 00:17:27.570
<v ->But you win even if it's only as applied.</v>

384
00:17:27.570 --> 00:17:28.403
<v ->Yes...</v>

385
00:17:29.490 --> 00:17:30.633
we do, we win.

386
00:17:32.910 --> 00:17:34.560
But on that, I will close.

387
00:17:34.560 --> 00:17:35.763
<v ->Thank you very much.</v>

388
00:17:42.300 --> 00:17:44.100
Okay, Attorney Davis, good morning.

389
00:17:44.100 --> 00:17:45.163
<v ->Good morning.</v>

390
00:17:45.163 --> 00:17:47.010
And please the court, John Davis,

391
00:17:47.010 --> 00:17:49.560
on behalf of the Southborough defendants.

392
00:17:49.560 --> 00:17:52.680
Nearly every public body that operates,

393
00:17:52.680 --> 00:17:55.620
does so under a set of rules or guidelines,

394
00:17:55.620 --> 00:17:58.050
whether it's this court or a legislative branch

395
00:17:58.050 --> 00:17:58.950
or an executive branch.

396
00:17:58.950 --> 00:18:00.983
<v ->Can I ask you to start with the as applied challenge?</v>

397
00:18:00.983 --> 00:18:05.160
I mean, here is a citizen, a resident of Southborough

398
00:18:05.160 --> 00:18:08.040
who's voicing concerns about budgets

399
00:18:08.040 --> 00:18:10.320
and open meeting law violations,

400
00:18:10.320 --> 00:18:12.240
and then is shut down.

401
00:18:12.240 --> 00:18:14.130
And that's what the complaint says.

402
00:18:14.130 --> 00:18:17.730
Why, why isn't that quintessentially

403
00:18:17.730 --> 00:18:20.520
what the Article 16 is about?

404
00:18:20.520 --> 00:18:21.690
Or the First Amendment.

405
00:18:21.690 --> 00:18:25.680
<v ->Certainly around the, this court has followed</v>

406
00:18:25.680 --> 00:18:27.390
public forum doctrine,

407
00:18:27.390 --> 00:18:29.970
and I would cite the Roman versus trustees case.

408
00:18:29.970 --> 00:18:31.830
<v ->Yeah, but that was a First Amendment analysis.</v>

409
00:18:31.830 --> 00:18:35.640
But be that as it may, let's assume best case scenario,

410
00:18:35.640 --> 00:18:37.980
this is a limited public forum for you, right?

411
00:18:37.980 --> 00:18:38.940
<v Davis>Right.</v>

412
00:18:38.940 --> 00:18:43.940
<v ->So you can have content based subject matter restrictions</v>

413
00:18:44.100 --> 00:18:46.920
and restrictions on who may speak.

414
00:18:46.920 --> 00:18:47.753
<v Davis>Yes.</v>

415
00:18:47.753 --> 00:18:50.460
<v ->Here's a Southborough resident speaking her concerns</v>

416
00:18:50.460 --> 00:18:52.680
about issues of public concern.

417
00:18:52.680 --> 00:18:56.040
As applied, doesn't this at least go back?

418
00:18:56.040 --> 00:18:58.260
I mean, you're at the pleading stage.

419
00:18:58.260 --> 00:19:01.440
<v ->You can have, if it's a re limited public form,</v>

420
00:19:01.440 --> 00:19:03.180
you can have reasonable restrictions

421
00:19:03.180 --> 00:19:05.280
that are designed to--

422
00:19:05.280 --> 00:19:06.930
<v ->What is your theory of this</v>

423
00:19:06.930 --> 00:19:09.780
is a reasonable restriction on speech

424
00:19:09.780 --> 00:19:14.520
where you have a resident of the town voicing concerns

425
00:19:14.520 --> 00:19:16.920
about decisions on budget

426
00:19:16.920 --> 00:19:20.580
and decisions related to open meeting law violations.

427
00:19:20.580 --> 00:19:22.770
What is your theory of the case

428
00:19:22.770 --> 00:19:24.450
that this doesn't go forward?

429
00:19:24.450 --> 00:19:26.460
<v ->Reasonable restriction on speech has to do with</v>

430
00:19:26.460 --> 00:19:31.050
whether or not it disrupts the purpose of the forum.

431
00:19:31.050 --> 00:19:33.180
The purpose of the forum is, is significant.

432
00:19:33.180 --> 00:19:34.980
And the courts have said so to conduct

433
00:19:34.980 --> 00:19:36.834
an orderly and efficient meeting.

434
00:19:36.834 --> 00:19:40.560
<v ->But this is clearly, she's commenting on</v>

435
00:19:40.560 --> 00:19:42.150
exactly what was mentioned,

436
00:19:42.150 --> 00:19:46.200
which is there are numerous open meeting law violations,

437
00:19:46.200 --> 00:19:49.983
and she's saying, you're violating this statute,

438
00:19:50.880 --> 00:19:53.520
then he's saying, that's slander.

439
00:19:53.520 --> 00:19:55.620
I don't understand how it's possibly slander,

440
00:19:55.620 --> 00:19:57.930
especially for a public official.

441
00:19:57.930 --> 00:20:02.370
I'm relying on the slander language in the policy.

442
00:20:02.370 --> 00:20:03.540
And he's misapplying it.

443
00:20:03.540 --> 00:20:06.600
Isn't this a clear, I mean, he can't,

444
00:20:06.600 --> 00:20:10.050
I can't dismiss this on the pleadings, on applied challenge.

445
00:20:10.050 --> 00:20:12.660
<v ->I think if that were, if it had ended there,</v>

446
00:20:12.660 --> 00:20:16.110
Your Honor, if Ms. Barron in response

447
00:20:16.110 --> 00:20:18.570
to Mr. Colin's remark said,

448
00:20:18.570 --> 00:20:20.850
well, I still think you're violating the open meeting law,

449
00:20:20.850 --> 00:20:23.070
and he had then pulled the plug at that point in time,

450
00:20:23.070 --> 00:20:24.090
we'd have a different case.

451
00:20:24.090 --> 00:20:25.080
<v ->Well no, you wouldn't</v>

452
00:20:25.080 --> 00:20:28.800
because you'd already have a violation.

453
00:20:28.800 --> 00:20:33.800
He's already basically turning off the meeting

454
00:20:33.930 --> 00:20:35.430
at that point.

455
00:20:35.430 --> 00:20:38.640
So as applied, this is clearly, it seems incorrect,

456
00:20:38.640 --> 00:20:39.473
isn't it?

457
00:20:39.473 --> 00:20:41.130
<v ->At that point in time, he is applying</v>

458
00:20:42.321 --> 00:20:44.070
the public participation policy,

459
00:20:44.070 --> 00:20:45.660
the public comment portion of the

460
00:20:45.660 --> 00:20:47.250
public participation policy,

461
00:20:47.250 --> 00:20:49.830
which prohibits slanderous or rude

462
00:20:49.830 --> 00:20:51.750
or personal language.
<v ->What's slanderous or rude?</v>

463
00:20:51.750 --> 00:20:52.770
It's accurate.

464
00:20:52.770 --> 00:20:56.610
<v ->But then as the court below said that,</v>

465
00:20:56.610 --> 00:20:57.600
I would have a problem with that.

466
00:20:57.600 --> 00:21:00.003
The judge below said, if it weren't limited,

467
00:21:00.870 --> 00:21:05.190
by other restrictions in the public participation policy,

468
00:21:05.190 --> 00:21:07.830
such as, you cannot use inappropriate language,

469
00:21:07.830 --> 00:21:10.050
and it doesn't define inappropriate language,

470
00:21:10.050 --> 00:21:11.610
but the inappropriate language,

471
00:21:11.610 --> 00:21:14.429
I would interpret to mean that

472
00:21:14.429 --> 00:21:19.429
you can't have vile epithets.

473
00:21:20.670 --> 00:21:22.544
You can't have, you can't--

474
00:21:22.544 --> 00:21:26.160
<v ->I'm sorry. I guess the most problematic part</v>

475
00:21:26.160 --> 00:21:29.310
of the policy is the word offensive for words, right?

476
00:21:29.310 --> 00:21:33.870
So if the citizen got up and said,

477
00:21:33.870 --> 00:21:38.220
I think spending is reasonable and under control,

478
00:21:38.220 --> 00:21:41.280
and I know you folks violate the open meeting law,

479
00:21:41.280 --> 00:21:42.840
but you're doing your best job

480
00:21:42.840 --> 00:21:45.390
and we thank you for your service.

481
00:21:45.390 --> 00:21:47.749
Everything's fine, right. That's not offensive, right?

482
00:21:47.749 --> 00:21:48.582
<v Davis>Right.</v>

483
00:21:48.582 --> 00:21:50.250
<v ->That citizen would be allowed to speak.</v>

484
00:21:50.250 --> 00:21:51.150
<v Davis>Right.</v>

485
00:21:51.150 --> 00:21:55.020
<v ->Citizen plaintiff says the exact opposite</v>

486
00:21:55.020 --> 00:21:56.280
and she's shut down.

487
00:21:56.280 --> 00:21:58.200
Isn't that just content based?

488
00:21:58.200 --> 00:22:01.710
<v ->Well, your Honor, I would argue that</v>

489
00:22:01.710 --> 00:22:05.340
to the extent she goes over the line,

490
00:22:05.340 --> 00:22:07.770
I mean, offensive, I agree.

491
00:22:07.770 --> 00:22:09.483
<v ->I get the Hitler part,</v>

492
00:22:10.740 --> 00:22:12.330
which comes after she's shut down,

493
00:22:12.330 --> 00:22:13.380
so take that aside.

494
00:22:13.380 --> 00:22:15.480
This is just the two things about spending

495
00:22:15.480 --> 00:22:17.340
and open meeting law of violations.

496
00:22:17.340 --> 00:22:19.110
So what's offensive about that?

497
00:22:19.110 --> 00:22:23.190
<v ->And she spoke about the expenses,</v>

498
00:22:23.190 --> 00:22:24.900
you're spending like drunken sailors.

499
00:22:24.900 --> 00:22:26.220
<v Justice Gaziano>Right.</v>
<v ->And she wasn't interrupted.</v>

500
00:22:26.220 --> 00:22:28.292
She was not called on that.

501
00:22:28.292 --> 00:22:31.380
She then asked questions about the town administrator

502
00:22:31.380 --> 00:22:32.850
and asked to engage with the board.

503
00:22:32.850 --> 00:22:34.350
And they said, no, we don't do that during public--

504
00:22:34.350 --> 00:22:35.970
<v Justice Gaziano>Oh, we don't have a rule that says</v>

505
00:22:35.970 --> 00:22:37.920
only erudite people get to speak, right?

506
00:22:37.920 --> 00:22:38.753
<v ->No, I understand.</v>

507
00:22:38.753 --> 00:22:39.817
<v Jusice Gaziano>She gets to say,</v>

508
00:22:39.817 --> 00:22:40.650
spending like drunken sailors.

509
00:22:40.650 --> 00:22:43.890
<v ->Yeah, no, I'm not saying that that was a violation.</v>

510
00:22:43.890 --> 00:22:45.540
<v ->What was the violation?</v>

511
00:22:45.540 --> 00:22:47.250
<v ->When she--</v>
<v ->Where's the offense?</v>

512
00:22:47.250 --> 00:22:49.740
<v ->He warned her consistent with the,</v>

513
00:22:49.740 --> 00:22:50.573
he warned her.

514
00:22:50.573 --> 00:22:51.959
And may maybe he should not have warned

515
00:22:51.959 --> 00:22:53.790
<v ->Wait, this is starting to sound familiar.</v>

516
00:22:53.790 --> 00:22:56.520
It sounds like he warned her and she kept speaking.

517
00:22:56.520 --> 00:22:59.850
<v ->No, he, and then, after he warned her consistent</v>

518
00:22:59.850 --> 00:23:02.340
with the policy, she said,

519
00:23:02.340 --> 00:23:04.290
you're acting like a Hitler, you're a Hitler.

520
00:23:04.290 --> 00:23:05.460
<v ->Right.</v>
<v ->I can say what I want.</v>

521
00:23:05.460 --> 00:23:07.593
<v ->Yes</v>
<v ->It already happened.</v>

522
00:23:07.593 --> 00:23:08.472
<v ->And so that's the case that--</v>

523
00:23:08.472 --> 00:23:09.305
<v ->It already happened.</v>

524
00:23:09.305 --> 00:23:11.677
He shut it down before that, before.

525
00:23:11.677 --> 00:23:13.710
<v Justice Gaziano>And maybe just let's go back</v>

526
00:23:13.710 --> 00:23:14.759
to my question.

527
00:23:14.759 --> 00:23:16.374
I know that you're being ping ponged a little bit

528
00:23:16.374 --> 00:23:17.207
and maybe--
<v ->Yeah, sure.</v>

529
00:23:17.207 --> 00:23:18.300
<v ->And maybe I don't if you're being offended,</v>

530
00:23:18.300 --> 00:23:20.670
but I know, I'm sure you're not--

531
00:23:20.670 --> 00:23:22.109
<v Davis>I'm fine</v>

532
00:23:22.109 --> 00:23:22.942
<v ->I'm sure you're mildly,</v>

533
00:23:22.942 --> 00:23:25.023
but anyway, be that as it may.

534
00:23:26.820 --> 00:23:29.280
give me the why it's offensive, you know,

535
00:23:29.280 --> 00:23:30.720
when we have the pro-government

536
00:23:30.720 --> 00:23:32.910
versus the anti-government speakers,

537
00:23:32.910 --> 00:23:36.810
why is the anti-government person offensive?

538
00:23:36.810 --> 00:23:38.880
<v ->I'm focusing on the language she used.</v>

539
00:23:38.880 --> 00:23:39.930
<v Justice Cypher>But what language?</v>

540
00:23:39.930 --> 00:23:41.070
<v ->But the "you're a Hitler".</v>

541
00:23:41.070 --> 00:23:42.627
<v ->But that comes after.</v>

542
00:23:42.627 --> 00:23:45.480
<v ->And and he hadn't cut, he did interrupt her,</v>

543
00:23:45.480 --> 00:23:47.250
and she had interrupted him before

544
00:23:47.250 --> 00:23:48.600
and he interrupted her.

545
00:23:48.600 --> 00:23:50.010
And he interrupted her, he said,

546
00:23:50.010 --> 00:23:52.410
if you are going to, and she said,

547
00:23:52.410 --> 00:23:54.990
I'm not slandering, then we will.

548
00:23:54.990 --> 00:23:56.550
And then she said, you're a Hitler.

549
00:23:56.550 --> 00:23:58.530
So he hadn't, he hadn't cut her off.

550
00:23:58.530 --> 00:24:01.860
<v ->He may, you know what Daniel Patrick Mohan said,</v>

551
00:24:01.860 --> 00:24:05.550
you're entitled to your own opinion, but not your own facts?

552
00:24:05.550 --> 00:24:08.010
You're not entitled to your own facts.

553
00:24:08.010 --> 00:24:09.958
<v Davis>I'm sorry, your Honor.</v>

554
00:24:09.958 --> 00:24:12.480
<v ->And okay, so ma'am,</v>

555
00:24:12.480 --> 00:24:14.820
if you want to slander town officials

556
00:24:14.820 --> 00:24:18.180
who are doing their very best, he brings up slandering.

557
00:24:18.180 --> 00:24:19.013
<v Davis>Correct.</v>

558
00:24:19.013 --> 00:24:22.320
<v ->That's him. I'm not slandering.</v>

559
00:24:22.320 --> 00:24:23.550
Then he says,

560
00:24:23.550 --> 00:24:26.370
then we're gonna go ahead

561
00:24:26.370 --> 00:24:29.880
and stop the public comment session

562
00:24:29.880 --> 00:24:32.790
and go ahead to recess.

563
00:24:32.790 --> 00:24:33.870
That's what happened.

564
00:24:33.870 --> 00:24:35.940
You can't rearrange the facts.

565
00:24:35.940 --> 00:24:36.948
<v Davis>Understood, your Honor.</v>

566
00:24:36.948 --> 00:24:39.198
<v ->Before Hitler, he's done.</v>

567
00:24:40.887 --> 00:24:44.250
<v ->Yes, your Honor, that's exactly what he said.</v>

568
00:24:44.250 --> 00:24:47.430
And then she said what she said, and then he said,

569
00:24:47.430 --> 00:24:48.663
we're going into recess.

570
00:24:49.560 --> 00:24:51.630
He didn't say we're going into recess before

571
00:24:51.630 --> 00:24:52.920
she said Hitler. She called him--

572
00:24:52.920 --> 00:24:54.990
<v ->But he did stop the public comment session.</v>

573
00:24:54.990 --> 00:24:55.823
<v ->He did not.</v>

574
00:24:56.802 --> 00:24:57.635
<v ->He didn't stop the public comment session?</v>

575
00:24:57.635 --> 00:24:58.590
<v Davis>He did not.</v>

576
00:24:58.590 --> 00:25:00.390
<v Justice Cypher>I thought the tape was turned off, too.</v>

577
00:25:00.390 --> 00:25:03.930
<v ->No, it was not turned off until she called him a Hitler.</v>

578
00:25:03.930 --> 00:25:07.290
And then he says, his next words are,

579
00:25:07.290 --> 00:25:11.580
we're going into recess and then this silence.

580
00:25:11.580 --> 00:25:14.910
<v ->So what what I have is not slandering.</v>

581
00:25:14.910 --> 00:25:17.281
And then Calenda says,

582
00:25:17.281 --> 00:25:20.160
then we're gonna go ahead

583
00:25:20.160 --> 00:25:23.160
and stop the public comment session

584
00:25:23.160 --> 00:25:26.220
and go ahead to recess.

585
00:25:26.220 --> 00:25:29.010
And that's when she makes the Hitler comment.

586
00:25:29.010 --> 00:25:31.084
<v ->Correct, yes.</v>

587
00:25:31.084 --> 00:25:35.850
And after she makes the Hitler comment, he says,

588
00:25:35.850 --> 00:25:38.375
All right, we're going into recess.

589
00:25:38.375 --> 00:25:40.455
That the sequence, your Honor.

590
00:25:40.455 --> 00:25:42.480
<v ->But again, this is a decision on the pleadings.</v>

591
00:25:42.480 --> 00:25:43.560
It's not a trial.

592
00:25:43.560 --> 00:25:44.393
<v Davis>Understood.</v>

593
00:25:44.393 --> 00:25:47.850
<v ->Can I walk you through?</v>

594
00:25:47.850 --> 00:25:51.810
'Cause I find the facial challenge more difficult.

595
00:25:51.810 --> 00:25:54.330
So all remarks and dialogue and public meetings

596
00:25:54.330 --> 00:25:56.850
must be respectful and courteous,

597
00:25:56.850 --> 00:26:00.810
free of rude, personal or slanderous remarks.

598
00:26:00.810 --> 00:26:02.613
So, that's a lot.

599
00:26:05.310 --> 00:26:07.710
If you brought the Declaration of Independence

600
00:26:07.710 --> 00:26:11.338
to the meeting, would that violate that provision?

601
00:26:11.338 --> 00:26:12.330
(chuckles) Ya know?

602
00:26:12.330 --> 00:26:15.630
<v ->Well, the judge below had concerns about that,</v>

603
00:26:15.630 --> 00:26:16.500
Your Honor.

604
00:26:16.500 --> 00:26:20.130
But she went on to read the document as a whole,

605
00:26:20.130 --> 00:26:21.895
and that's, when you've got a facial challenge--

606
00:26:21.895 --> 00:26:22.728
<v Justice Karker>But, I mean</v>

607
00:26:22.728 --> 00:26:23.561
<v ->You tried to do--</v>
<v ->But, I don't know.</v>

608
00:26:23.561 --> 00:26:26.460
But again, the standard is a substantial amount

609
00:26:26.460 --> 00:26:29.820
of free speech gonna be blocked by this?

610
00:26:29.820 --> 00:26:32.910
Or is it so open-ended that it's gonna allow

611
00:26:32.910 --> 00:26:35.970
kind of discretionary decision making

612
00:26:35.970 --> 00:26:37.440
that's inappropriate?

613
00:26:37.440 --> 00:26:39.600
I just don't know what all these words mean.

614
00:26:39.600 --> 00:26:42.240
I mean personal, I mean, again,

615
00:26:42.240 --> 00:26:45.180
the Declaration of Independence is directed at King George.

616
00:26:45.180 --> 00:26:47.580
A lot of it, I mean, this is personal, yes.

617
00:26:47.580 --> 00:26:51.273
She's saying you're violating the open meeting law.

618
00:26:52.159 --> 00:26:55.500
I mean, personal's, I mean,

619
00:26:55.500 --> 00:26:58.593
there's a difference between calling you a pedophile, right?

620
00:26:59.550 --> 00:27:01.440
If you're not a pedophile versus

621
00:27:01.440 --> 00:27:03.870
saying you're violating the meeting.

622
00:27:03.870 --> 00:27:06.900
They're both personal, but they're different, right?

623
00:27:06.900 --> 00:27:08.790
<v ->And then the Judge below said that so long,</v>

624
00:27:08.790 --> 00:27:11.193
if those were words that you've just read, Your Honor,

625
00:27:11.193 --> 00:27:13.590
were not limited, she would have a problem--

626
00:27:13.590 --> 00:27:14.673
<v Justice Karker>Limited by what?</v>

627
00:27:14.673 --> 00:27:15.506
<v ->...if they were limited?</v>

628
00:27:15.506 --> 00:27:16.830
<v ->What are they limited by?</v>

629
00:27:16.830 --> 00:27:19.200
<v ->By further language within the same paragraph--</v>

630
00:27:19.200 --> 00:27:20.033
<v Justice Karker>What?</v>

631
00:27:20.033 --> 00:27:22.740
<v ->Inappropriate language is not allowed.</v>

632
00:27:22.740 --> 00:27:26.430
I interpret that to mean that like true threats

633
00:27:26.430 --> 00:27:30.270
or fighting words or profane shouting.

634
00:27:30.270 --> 00:27:32.400
<v ->Shouting makes complete sense to me.</v>

635
00:27:32.400 --> 00:27:34.473
Shouting is a manner of speech.

636
00:27:34.473 --> 00:27:36.570
It's not a content of speech.

637
00:27:36.570 --> 00:27:37.403
<v Davis>Right.</v>

638
00:27:37.403 --> 00:27:38.430
<v ->But--</v>
<v ->And then it also.</v>

639
00:27:38.430 --> 00:27:41.250
<v ->Inappropriate, I don't know what that means.</v>

640
00:27:41.250 --> 00:27:43.920
Respectful and courteous seems to be,

641
00:27:43.920 --> 00:27:47.190
if I'm saying you're a wise lawyer

642
00:27:47.190 --> 00:27:50.253
as opposed to you're a dumb lawyer, you know,

643
00:27:50.253 --> 00:27:53.130
that has a substantive component to it, doesn't it?

644
00:27:53.130 --> 00:27:53.963
<v ->It does, your Honor.</v>

645
00:27:53.963 --> 00:27:56.430
But it also got got down to these--

646
00:27:56.430 --> 00:27:58.050
<v ->So I'm allowed to say you're wise,</v>

647
00:27:58.050 --> 00:27:59.760
but I'm not allowed to say you're stupid?

648
00:27:59.760 --> 00:28:01.056
<v ->You can say whatever you like there.</v>

649
00:28:01.056 --> 00:28:02.203
(all chuckle)

650
00:28:02.203 --> 00:28:06.060
But I mean isn't that what the problem with this is?

651
00:28:06.060 --> 00:28:09.750
<v ->Well, the language of the policy also includes</v>

652
00:28:09.750 --> 00:28:12.173
provision with respect to disruptive behavior.

653
00:28:12.173 --> 00:28:15.120
<v ->Right, but we have to deal with</v>

654
00:28:15.120 --> 00:28:17.010
the relevant challenge language,

655
00:28:17.010 --> 00:28:19.470
which is respectful and courteous,

656
00:28:19.470 --> 00:28:22.140
free of rude, personal and slanderous remarks.

657
00:28:22.140 --> 00:28:24.827
We don't get to read that on the pleadings

658
00:28:24.827 --> 00:28:27.477
in terms of the whole policy?

659
00:28:27.477 --> 00:28:31.080
Why do you think that we get to do that?

660
00:28:31.080 --> 00:28:34.140
<v ->Well, I understood your Honor was asking</v>

661
00:28:34.140 --> 00:28:35.250
about the facial challenge.

662
00:28:35.250 --> 00:28:38.040
In a facial challenge, you are supposed to

663
00:28:38.040 --> 00:28:40.560
try to read it as narrowly as you can

664
00:28:40.560 --> 00:28:42.690
so that it is not unconstitutional.

665
00:28:42.690 --> 00:28:45.450
And it's presumed to be constitutional.

666
00:28:45.450 --> 00:28:48.090
So if you can, and as the judge below did

667
00:28:48.090 --> 00:28:48.923
she read it narrowly.

668
00:28:48.923 --> 00:28:51.930
<v ->And how do you apply respectful, courteous,</v>

669
00:28:51.930 --> 00:28:54.750
free of rude, personal and slanderous remarks

670
00:28:54.750 --> 00:28:59.520
other than depending on the viewpoint of the hearer?

671
00:28:59.520 --> 00:29:01.560
<v ->If rude, personal slanderous remarks</v>

672
00:29:01.560 --> 00:29:04.710
disrupt the meeting and interfere

673
00:29:04.710 --> 00:29:06.150
with the business of government,

674
00:29:06.150 --> 00:29:08.280
then I think that the board is entitled to shut it down.

675
00:29:08.280 --> 00:29:10.560
Because now that's a reasonable restriction

676
00:29:10.560 --> 00:29:12.150
based upon the fact that we are here

677
00:29:12.150 --> 00:29:14.250
to conduct a government business.

678
00:29:14.250 --> 00:29:17.490
We are here to conduct the business of the town.

679
00:29:17.490 --> 00:29:19.770
<v ->Until, and in that context,</v>

680
00:29:19.770 --> 00:29:24.770
we can't talk about the personal conduct of the selectmen.

681
00:29:25.230 --> 00:29:26.640
<v ->Oh, yes, you can. Yes, you can.</v>

682
00:29:26.640 --> 00:29:28.650
So long as it's not disruptive.

683
00:29:28.650 --> 00:29:31.020
I think, I think once you get, once you go, I mean,

684
00:29:31.020 --> 00:29:34.023
calling somebody as a Hitler ends the conversation.

685
00:29:34.023 --> 00:29:37.737
It's not a way to advance the public discourse.

686
00:29:37.737 --> 00:29:40.260
<v ->But so does closing the public meeting?</v>

687
00:29:40.260 --> 00:29:41.340
<v ->Yes, it does.</v>

688
00:29:41.340 --> 00:29:42.990
And that, so that's another issue.

689
00:29:42.990 --> 00:29:46.260
If this court says that that sort of speech

690
00:29:46.260 --> 00:29:51.260
below sets the floor and that's okay going forward,

691
00:29:51.690 --> 00:29:54.570
the next public participation policy.

692
00:29:54.570 --> 00:29:56.760
People are gonna be saying even worse things

693
00:29:56.760 --> 00:29:58.830
and they're gonna cite Barron versus Southborough.

694
00:29:58.830 --> 00:29:59.760
I don't see how--

695
00:29:59.760 --> 00:30:02.370
<v ->Well, I mean they could cite Barron versus Southborough</v>

696
00:30:02.370 --> 00:30:04.110
for the proposition that you don't

697
00:30:04.110 --> 00:30:06.120
get to discriminate against somebody

698
00:30:06.120 --> 00:30:09.570
based on the viewpoint of the hearer.

699
00:30:09.570 --> 00:30:12.213
That is justice Gaziano's point.

700
00:30:12.213 --> 00:30:14.640
I think that something that is complimentary

701
00:30:14.640 --> 00:30:16.860
would be allowed, but something critical

702
00:30:16.860 --> 00:30:18.327
would no longer be allowed.

703
00:30:18.327 --> 00:30:21.450
And that is quintessentially viewpoint discrimination,

704
00:30:21.450 --> 00:30:22.608
isn't it?

705
00:30:22.608 --> 00:30:23.441
<v ->I would think, yes, I would agree.</v>

706
00:30:23.441 --> 00:30:26.550
Just because it's somebody is criticizing,

707
00:30:26.550 --> 00:30:28.590
I think you can criticize government officials.

708
00:30:28.590 --> 00:30:29.423
I think they can do that.

709
00:30:29.423 --> 00:30:31.350
I think somebody can come to the public comment--

710
00:30:31.350 --> 00:30:34.470
<v ->The first amendment in Article 16, so.</v>

711
00:30:34.470 --> 00:30:35.790
<v ->So, yes, they can do that.</v>

712
00:30:35.790 --> 00:30:38.550
But, but when you interfere with the business

713
00:30:38.550 --> 00:30:41.580
of the government by disrupting the meeting,

714
00:30:41.580 --> 00:30:42.976
calling somebody a pedophile,

715
00:30:42.976 --> 00:30:43.809
I don't think that would,

716
00:30:43.809 --> 00:30:45.690
I mean there are gray areas and that,

717
00:30:45.690 --> 00:30:47.940
but there are some that are clearly beyond the pale.

718
00:30:47.940 --> 00:30:48.978
And I think when--

719
00:30:48.978 --> 00:30:50.490
<v ->Right, and so couldn't you have a policy</v>

720
00:30:50.490 --> 00:30:55.080
that goes to the conduct of the participant

721
00:30:55.080 --> 00:30:58.343
that is no shouting, no obscenity,

722
00:30:58.343 --> 00:31:00.540
you know, things like that

723
00:31:00.540 --> 00:31:02.190
as opposed to the viewpoint,

724
00:31:02.190 --> 00:31:04.350
which is personal and slanderous remarks.

725
00:31:04.350 --> 00:31:06.780
I mean, isn't slander in and of itself

726
00:31:06.780 --> 00:31:09.000
a viewpoint depending on

727
00:31:09.000 --> 00:31:11.343
whether call somebody in to distribute?

728
00:31:12.210 --> 00:31:13.560
<v ->Yes, yes it is.</v>

729
00:31:13.560 --> 00:31:16.080
<v ->Right? And so, including that in the policy</v>

730
00:31:16.080 --> 00:31:17.520
seems to be problematic

731
00:31:17.520 --> 00:31:21.120
because it quintessentially is viewpoint discrimination.

732
00:31:21.120 --> 00:31:24.060
It's a viewpoint designation

733
00:31:24.060 --> 00:31:29.060
because it depends on how the public hears it.

734
00:31:29.580 --> 00:31:34.090
It calls somebody's reputation into question.

735
00:31:34.090 --> 00:31:36.150
<v ->Only, I agree, your Honor,</v>

736
00:31:36.150 --> 00:31:38.520
to the extent you look at it in isolation.

737
00:31:38.520 --> 00:31:40.590
If you look at rude personal and slanderous remarks

738
00:31:40.590 --> 00:31:42.480
in isolation, it's problematic.

739
00:31:42.480 --> 00:31:44.460
<v ->So if that were the only part of the policy,</v>

740
00:31:44.460 --> 00:31:45.530
you agree that this would go forward?

741
00:31:45.530 --> 00:31:46.890
<v ->If that were the only part of the policy,</v>

742
00:31:46.890 --> 00:31:49.050
don't be rude, don't use personal remarks

743
00:31:49.050 --> 00:31:51.507
because if you do, we're gonna shut you down.

744
00:31:51.507 --> 00:31:56.040
<v ->And so your theory is that in context as a whole,</v>

745
00:31:56.040 --> 00:31:59.740
the policy is about controlling the decorum

746
00:32:01.645 --> 00:32:04.380
of these Pablo comments sections of the selectins meeting?

747
00:32:04.380 --> 00:32:05.460
<v ->Yes, your Honor.</v>

748
00:32:05.460 --> 00:32:07.560
<v ->If you took your pen to this policy,</v>

749
00:32:07.560 --> 00:32:12.030
you would certainly strike out the word "rude," correct?

750
00:32:12.030 --> 00:32:14.550
<v ->I would probably make a few edits, your Honor.</v>

751
00:32:14.550 --> 00:32:15.570
<v ->Okay.</v>
<v ->Your Honor.</v>

752
00:32:15.570 --> 00:32:18.060
But, I do think that again,

753
00:32:18.060 --> 00:32:20.940
when we're faced with a facial challenge,

754
00:32:20.940 --> 00:32:23.130
we're required to look at it as a whole.

755
00:32:23.130 --> 00:32:24.810
And that's what the judge below did.

756
00:32:24.810 --> 00:32:26.400
She looked at it as a whole and said,

757
00:32:26.400 --> 00:32:29.640
when you, and she wrote a declaratory.

758
00:32:29.640 --> 00:32:32.460
She wrote declarations consistent with the DJ request,

759
00:32:32.460 --> 00:32:36.300
and she wrote declarations that per pursuant to the law

760
00:32:36.300 --> 00:32:40.950
would uphold this public participation policy

761
00:32:40.950 --> 00:32:42.270
so that they could go forward.

762
00:32:42.270 --> 00:32:44.790
<v ->Can I ask a couple of sort of particular questions?</v>

763
00:32:44.790 --> 00:32:46.920
The Hitler comment,

764
00:32:46.920 --> 00:32:48.990
which is different from the pedophile comment,

765
00:32:48.990 --> 00:32:53.990
'cause pedophile is implying, is this an opinion?

766
00:32:54.510 --> 00:32:56.220
I mean, she's not really calling him...

767
00:32:56.220 --> 00:32:58.410
She doesn't think he's, you know,

768
00:32:58.410 --> 00:33:03.150
invaded eastern Europe and killed 6 million people.

769
00:33:03.150 --> 00:33:06.660
She's using a metaphor, right?

770
00:33:06.660 --> 00:33:11.660
So, I mean it's rude and it's disparaging,

771
00:33:12.060 --> 00:33:17.060
but is it even, I mean, I just don't know what you do.

772
00:33:17.160 --> 00:33:20.613
It's clearly, it's not a fact-based statement, is it?

773
00:33:22.458 --> 00:33:23.569
I mean, I just don't know how you do...

774
00:33:23.569 --> 00:33:24.402
<v ->It's vial epithet?</v>

775
00:33:24.402 --> 00:33:25.950
I mean, and you can come up with others.

776
00:33:25.950 --> 00:33:28.800
I mean, and if this is going to be okay, if that's okay--

777
00:33:28.800 --> 00:33:31.910
<v ->Not saying it's okay, I'm just trying to understand it...</v>

778
00:33:33.030 --> 00:33:35.610
What it is. 'Cause it's really,

779
00:33:35.610 --> 00:33:37.140
it's a statement of opinion

780
00:33:37.140 --> 00:33:39.660
and it's a rude statement of opinion,

781
00:33:39.660 --> 00:33:44.660
but it's not, I mean, I just don't know how you,

782
00:33:44.820 --> 00:33:46.680
how we calculate that and how we figure it.

783
00:33:46.680 --> 00:33:49.710
And then I understand your point on that one.

784
00:33:49.710 --> 00:33:52.560
The second one is the motion.

785
00:33:52.560 --> 00:33:56.220
I think the motion judge finds that there's no threats,

786
00:33:56.220 --> 00:33:57.630
intimidation or coercion here

787
00:33:57.630 --> 00:34:00.030
because the open meeting will

788
00:34:00.030 --> 00:34:02.120
allows you to remove someone.

789
00:34:02.120 --> 00:34:03.180
Is that what she does?

790
00:34:03.180 --> 00:34:04.835
<v ->That was part of her decision, your Honor.</v>

791
00:34:04.835 --> 00:34:05.668
<v ->But, I don't...</v>

792
00:34:05.668 --> 00:34:06.600
That allows you to remove someone

793
00:34:06.600 --> 00:34:08.400
if you're not violating the constitution.

794
00:34:08.400 --> 00:34:11.220
If you are violating the constitution,

795
00:34:11.220 --> 00:34:13.170
isn't it satisfy the threats,

796
00:34:13.170 --> 00:34:14.850
intimidation and coercion requirement?

797
00:34:14.850 --> 00:34:18.000
Because it's just like gloves ski.

798
00:34:18.000 --> 00:34:20.910
And it's just like the other case we've got

799
00:34:20.910 --> 00:34:25.320
where you're threatening to remove someone from a room.

800
00:34:25.320 --> 00:34:29.103
<v ->Well, if she, pursuant to the open meeting law.</v>

801
00:34:31.404 --> 00:34:32.237
<v ->I understand you don't think</v>

802
00:34:32.237 --> 00:34:34.020
it's a constitutional violation, right?

803
00:34:34.020 --> 00:34:34.853
But if it is,

804
00:34:34.853 --> 00:34:37.470
if we decide that it is a constitutional violation

805
00:34:37.470 --> 00:34:39.990
and he's threatening to remove her,

806
00:34:39.990 --> 00:34:42.660
doesn't it meet the state civil rights threats,

807
00:34:42.660 --> 00:34:45.687
intimidation and coercion requirement as well?

808
00:34:45.687 --> 00:34:48.090
<v ->And I guess the, this quote would also have to hold that,</v>

809
00:34:48.090 --> 00:34:50.760
that provision of the open meeting law

810
00:34:50.760 --> 00:34:53.850
that says that the presiding officer can warn

811
00:34:53.850 --> 00:34:57.420
and then ask someone who is disrupting a meeting to leave.

812
00:34:57.420 --> 00:34:58.260
That's what he did.

813
00:34:58.260 --> 00:35:00.000
<v ->No, there's a difference though.</v>

814
00:35:00.000 --> 00:35:03.630
If, for example, if the speaker keeps saying,

815
00:35:03.630 --> 00:35:06.000
you've got five minutes, your five minutes is over

816
00:35:06.000 --> 00:35:08.610
and I'm gonna remove you if you keep talking,

817
00:35:08.610 --> 00:35:12.180
that's not interfering with the Constitutional Right.

818
00:35:12.180 --> 00:35:16.143
But if he's threatening to remove her unconstitutionally,

819
00:35:17.040 --> 00:35:20.010
isn't that a Civil Rights Act violation?

820
00:35:20.010 --> 00:35:21.930
And the open meeting law

821
00:35:21.930 --> 00:35:25.200
assumes that you're acting permissively, doesn't it?

822
00:35:25.200 --> 00:35:27.627
You can't remove someone from a meeting

823
00:35:27.627 --> 00:35:29.820
for violating the constitution.

824
00:35:29.820 --> 00:35:32.730
And I mean, if you're violating the constitution,

825
00:35:32.730 --> 00:35:34.350
you can't remove them, right?

826
00:35:34.350 --> 00:35:37.950
<v ->Well, I think that's the first element</v>

827
00:35:37.950 --> 00:35:40.737
of the micro claim is you have to show interference

828
00:35:40.737 --> 00:35:42.510
or, or threat or by threats.

829
00:35:42.510 --> 00:35:44.310
So, I would agree with you, judge,

830
00:35:44.310 --> 00:35:45.810
that may be interference,

831
00:35:45.810 --> 00:35:47.880
but it doesn't necessarily rise to threats,

832
00:35:47.880 --> 00:35:49.293
intimidation or coercion.

833
00:35:50.370 --> 00:35:51.780
Just because you have interfered

834
00:35:51.780 --> 00:35:53.790
now you have to show under the micro statute,

835
00:35:53.790 --> 00:35:55.320
you have to go that next route.

836
00:35:55.320 --> 00:35:58.230
It's not section 1983 where the interference alone

837
00:35:58.230 --> 00:35:59.063
would be enough.

838
00:35:59.063 --> 00:36:00.690
<v ->I know, but my understanding is--</v>

839
00:36:00.690 --> 00:36:02.490
<v ->Threatening to remove somebody</v>

840
00:36:02.490 --> 00:36:05.143
for exercising their first amendment right,

841
00:36:05.143 --> 00:36:07.560
isn't that a threat?

842
00:36:07.560 --> 00:36:09.360
<v ->If it's a direct violation, no.</v>

843
00:36:09.360 --> 00:36:11.700
It's a direct violation under the Longvaugh case

844
00:36:11.700 --> 00:36:15.390
when you say get out and they get out, that's not a threat.

845
00:36:15.390 --> 00:36:18.060
And the court, in the court here said that it's not a threat

846
00:36:18.060 --> 00:36:20.520
because it was, it was a angry reaction.

847
00:36:20.520 --> 00:36:23.970
It was an angry reaction to an outburst from Ms. Barron.

848
00:36:23.970 --> 00:36:28.800
So again, I wouldn't concede that there were threats,

849
00:36:28.800 --> 00:36:29.850
intimidation of coercion here.

850
00:36:29.850 --> 00:36:33.120
Just if, because if this court decides

851
00:36:33.120 --> 00:36:36.813
that that speech is protected under Article 16.

852
00:36:37.890 --> 00:36:40.110
<v ->So if she was engaging in speech</v>

853
00:36:40.110 --> 00:36:44.430
that she was allowed to do and he says,

854
00:36:44.430 --> 00:36:47.970
I'm going to have the constable remove you,

855
00:36:47.970 --> 00:36:49.770
that's not a threat

856
00:36:49.770 --> 00:36:54.030
because the open meeting law allows him to remove her?

857
00:36:54.030 --> 00:36:57.000
<v ->I would maintain it's not interference with her rights</v>

858
00:36:57.000 --> 00:36:59.350
by means of a threat, intimidation of coercion.

859
00:37:01.107 --> 00:37:04.290
<v ->Isn't that the exact opposite of what the cases say?</v>

860
00:37:04.290 --> 00:37:08.940
If you just took them away, it might be different,

861
00:37:08.940 --> 00:37:13.650
but he's threatening to take her away if she keeps talking.

862
00:37:13.650 --> 00:37:17.850
And that seems to be a classic threats, intimidation,

863
00:37:17.850 --> 00:37:20.460
coercion. Unless I'm misreading those cases.

864
00:37:20.460 --> 00:37:23.760
<v ->No, and Iwould have to agree that</v>

865
00:37:23.760 --> 00:37:27.900
if this court were to find that her speech

866
00:37:27.900 --> 00:37:30.330
is protected by Article 16,

867
00:37:30.330 --> 00:37:32.310
then we're probably in an area

868
00:37:32.310 --> 00:37:33.810
where there's question of fact with respect

869
00:37:33.810 --> 00:37:35.550
to threats, intimidation, coercion.

870
00:37:35.550 --> 00:37:38.400
But I would also remind the court

871
00:37:38.400 --> 00:37:40.680
that we did raise qualified immunity below

872
00:37:40.680 --> 00:37:43.530
and this court can uphold the decision.

873
00:37:43.530 --> 00:37:45.780
<v ->That's that's the question I asked your sister,</v>

874
00:37:45.780 --> 00:37:47.130
I don't know the answer to.

875
00:37:47.130 --> 00:37:49.920
We've not applied qualified immunity

876
00:37:49.920 --> 00:37:51.330
to mass Civil Rights Act.

877
00:37:51.330 --> 00:37:52.838
<v ->Yes, you have.</v>

878
00:37:52.838 --> 00:37:53.671
<v ->We have?</v>
<v ->Yes.</v>

879
00:37:54.720 --> 00:37:58.110
<v ->So we have said not only do you need</v>

880
00:37:58.110 --> 00:37:59.850
to violate the constitutional right

881
00:37:59.850 --> 00:38:01.110
to get a Civil Rights Act claim,

882
00:38:01.110 --> 00:38:03.540
and you have to violate it clearly establish--

883
00:38:03.540 --> 00:38:05.010
<v ->Yes, your honor.</v>
<v ->Which case is that?</v>

884
00:38:05.010 --> 00:38:07.200
<v ->Dew Art versus Healy, I believe.</v>

885
00:38:07.200 --> 00:38:08.730
<v ->Okay.</v>

886
00:38:08.730 --> 00:38:10.860
<v ->And there's no factual dispute</v>

887
00:38:10.860 --> 00:38:13.081
about when the meeting ended? Or was--

888
00:38:13.081 --> 00:38:14.231
<v ->No, no, there is not.</v>