-: SJC-13284.
Louise Barron and others
v. Southborough Board of Selectman and another.
-: Okay, Attorney Kremer.
-: Good morning.
Good morning, and may it please the court.
My name is Ginny Sinkel Kremer,
and I am counsel for Mrs. Louise Barron,
the appellant in this case.
In this case, the court will have to decide
what protections the Declaration of Rights affords
to the speech of citizens who are criticizing
their elected government officials at a place and at a time
that the government has opened for such speech.
-: Are any civility codes constitutional?
-: Your, Your Honor, our position is that
the civility code at issue in this case
as set forth in the policy and as applied
is unconstitutional because it is standardless.
It invites the use of content-based restrictions
and regulations by public officials
who do not wish to be criticized.
-: Is it possible to draft a constitutional civility code?
-: Your Honor, I guess that would depend on
what you meant by civility code.
You know, civility codes are...
problematic in that what is civil or not civil
is in the eye of the beholder.
And the biggest problem with civility codes is not just
what happened to my client in this case,
but this case, the facts of this case illustrate that
she dared to criticize and was cut down from that.
She was trying to inform her fellow citizens.
-: Would you concede that if your client started
with the references, the hateful references to Hitler,
that she should have been shut down?
-: Your Honor, I think that all of the cases
from this court's cases
to cases by the United States Supreme Court
recognized that public officials need to be prepared for
caustic and offensive criticism at times.
-: So if your client opened with, "I think you're a Hitler,"
she should be allowed to speak?
-: Well, if my client opened with,
"You are behaving like a fascist dictator,"
would that matter to you?
If she said, "you are a criminal.
You're behaving like a criminal because you violated the law
on multiple occasions."
Where do you draw the line?
When somebody in, in the case to support this,
put themselves forth in front of voters
and step forward to become an elected leader,
they need to understand that their decisions
are gonna be subject to criticism
and sometimes it might even hurt their feelings.
-: So if the,
if your client stood up in this public common and said,
"I think you're a pedophile," is that okay?
Should she be allowed to speak?
-: Your Honor, where exactly you draw the line is
thankfully not my job.
My client did not say that.
My client-
Justice Gaziano: The question I have is,
-: Yeah.
-: Would that be okay on your view
of the First Amendment in our state constitution?
Attorney Kremer: To the extent that it, you know,
that speech constitutes name calling
or rude or insulting behavior,
prior restraints on that or content-based restrictions
are unconstitutional.
Where you veer into accusing somebody
of having committed a crime without any basis in fact,
is a different factual scenario than incurred in this case.
Justice Cypher: Now, do you-
I'm sorry, I didn't mean to interrupt.
-: I didn't get an answer, but you can ask.
-: No, go ahead, if you can get an answer.
-: I'm not gonna get one, so go ahead.
-: Okay, my question is to do with the forum.
And that is, do you we have to decide the issue
of public forum or nontraditional forum in this case
to resolve it?
Attorney Kremer: Your Honor, I don't believe so
because I believe that whatever the forum is,
this was content-based restriction by the select board.
-: Would the forum, the base-
the nature of the forum change the standard of review
if it's content-based?
I mean, would one be strict scrutiny or...?
-: Your Honor, this was a limited designated public forum
and the appropriate standard of review
is definitely strict scrutiny.
-: We have to show that much?
Isn't there a factual issue of what it is?
This is a motion of judgement on the pleadings.
Kremer: Correct, Your Honor.
-: So, before you, before you go and argue what it is,
isn't there a factual dispute that has to be resolved
as to what it is?
-: Well, Your Honor, the only factual dispute here
is whether or not the policy restricts
the limited designated forum
to only residents of Southborough or not,
and our position is, it doesn't matter.
You know, here is a resident of Southborough,
so whether or not was restricted or not,
she is qualified to speak.
She was recognized to speak.
She followed all the rules, she waited her turn.
So this isn't a situation where discovery
needs to really resolve that issue.
The town of Southborough makes a lot out of,
and so does the judge below,
out of the one reference to having to state your address,
as if people who don't live in Southborough
somehow lack addresses that limit it.
But they're really just bootstrapping that limitation
or that reference to addresses into trying to
convince this court that this was a non public forum,
which is-
-: Well, could I just test you on that?
because the paragraph that you don't cite
in the amended complaint is paragraph two of the policy,
which clearly limits the forum to town residents.
-: Well, Your Honor, I will give you,
concede that for purposes of this argument.
I don't think that it matters, again, because I don't-
-: Whether or not you concede it,
it's in paragraph two of the policy.
It says, "Town residents can speak at these forums."
-: Right, but that doesn't mean
that nobody else can speak at these forums.
I think that there is a lot of other language
that talks about the public as opposed to town residents--
-: Can I just go back to your question about,
or your point about content-based restrictions.
Why do we even have to go there?
I mean, isn't this viewpoint-based descriptions,
which are, restrictions, which are unconstitutional
no matter what forum we are in?
-: Yes, Your Honor, I think that the policy as well,
you know, on its face and as applied,
doesn't necessarily, on its face,
engage in viewpoint-based discrimination,
but certainly Mr. Kolenda's actions in this case
engaged in viewpoint discrimination
because as soon as the plaintiff tried to
bring to light a fact that Mr. Kolenda and the board
was trying to keep under the radar,
which was the attorney general's recent findings
of dozens more open-meeting law violations,
which the board used acronyms to describe--
-: So you're not any longer making
a facial challenge to the policy?
You're just saying as applied
in this context it is unconstitutional?
-: Facially and as applied, I think--
-: All right, well then facially,
you kinda need to go to the actual words
of the policy, right?
And show that in no,
under no circumstances is that constitutional.
Kremer: I disagree, Your Honor.
-: Why?
-: Because in most circumstances,
it's unconstitutional and I think that there are cases--
-: What is your legal authority for that being the test?
That usually, 51% of the time, it's unconstitutional?
Kremer: Your Honor, I believe that it's cited
that that particular line of cases
is cited in the ACLU's brief
and I can find that reference for you--
-: Isn't it the line of cases that say,
if it interferes with a substantial amount
of free speech on its face
then it can be declared unconstitutional, right?
-: Correct.
-: That's Perry, and some of the
Supreme Court cases that draw on that, right?
-: Correct, and that's because it goes to the chilling effect
that this kind of restraint, these kinds of regulations have
because it leads to even self-policing
and I think that that is illustrated
by Mr. Kolenda's announcement
of those very buzz words and phrases
before entertaining public speak is,
"Don't you dare to offend me.
Don't you dare to criticize this board."
He was very selective in his rendition
of which parts of the policy he called out.
And when my client approached the board politely,
without disruption and not shouting,
and was trying to bring to the Board's attention
and to the public's attention,
the fact of the attorney general's findings,
he immediately shut her down.
So this is before the utterance of the term Hitler.
This is before anything that could be called,
by any stretch of the imagination, disruptive.
He shut her down based on the language of the policy.
-: He shut her down, but,
at least for your civil rights claim,
you're gonna need him ordering, basically saying,
"I'm gonna bring in the cops if you don't shut up," right?
You're not gonna, you're not gonna meet
the threats, intimidation, and coercion requirements
on your civil rights claim without going deeper into Hitler
and the response to Hitler, right?
-: Well, I don't think that he,
he did threaten to have her physically removed
and the complaint makes all of those allegations.
I don't think-
-: He did or he didn't?
-: He did.
-: But he doesn't do that
until after she compares him to Hitler, right?
-: I don't think that that has any bearing on the analysis-
-: But Counsel, are you appealing the civil rights claims?
-: Yes.
Justice Cypher: You still- -: The dismissal, yes, yes.
-: The dismissal, okay. -: Yes.
-: So but, I guess back,
going to Justice Lowy's and Justice Wendlandt's questions,
we've got two different-
We've got a facial challenge and an applied challenge.
The facial challenge...
And we also have a civil rights claim
and we also have a state and federal constitutional claim,
so we're gonna have to-
-: No federal constitutional claim.
-: You're not relying on the federal constitution?
-: No, no. It's just, it's simply, it was remanded from the,
the original complaint stated federal claims.
-: So just the state constitution you're relying on?
-: Correct, Your Honor.
-: And has the state constitution,
in our state constitutional analysis,
have we done this limited, I guess in the ACLU's brief,
a designated limited public forum?
Have we, have we gone into this morass,
which the Supreme Court's done?
-: In some cases, it has been touched upon,
but not in the context of this case,
although there are two superior court cases
Judge Wilkins just rendered--
-: Again, again, not precedent for us, so I--
-: Correct, but they set forth,
analyses that this court
may want to become aware of, in looking at this.
There's a case out of Nantucket right now,
in which Judge Wilkins dismissed,
refused to dismiss the town's claims on the same,
basically on the same factual scenario
and there's also the Spalding case out of Natick
that analyzes this court's precedent
in what I believe is a useful way.
But so, no, this court hasn't specifically addressed--
Justice Kafker: Can I? -: This factual scenario.
-: So the US Supreme Court, again so,
on the civil rights claim,
I'm particularly concerned with.
So, we do need to sort of track through
the whole factual scenario, right? On that.
-: Yes.
-: And-
-: As alleged in the complaint drawing inferences.
-: The US Supreme Court,
when they do their civil rights claims,
they have a qualified immunity analysis.
Do we do that on state's civil rights claims?
Or do we not get into qualified immunity at all?
-: Your Honor, the qualified immunity issue
is something that the superior court
didn't even mention.
And, you know, that defense depends upon contested facts
so I'm not sure that at this juncture
it's appropriate for this court to weigh in on that.
-: Speaking of contested facts,
and I'm sorry to interrupt you, Justice Kafker-
Justice Kafker: No, no, go ahead.
-: What?
Justice Kafker: Go ahead.
-: Oh, is that, um, you were mentioning before
the open-meeting law and the judge,
the superior court judge,
used that open-meeting law conclusion
or the finding as a factor
in classifying the school board meeting
as a designated public forum, correct?
-: Yes, it was not a school board, however.
It was a select board, which is actually a big difference.
Justice Cypher: Okay, but is it still true, though,
that is was, the open-meeting law,
she considered that and it is valid thing
we can consider in the selectman meeting?
-: (stammering) I'm confused by what part
of the open-meeting law wasn't valid to consider?
-: The judge said the fact that
the open-meeting law is another,
just another factor to consider,
that you have to have an open meeting.
It's another factor to consider
in this public analysis. It's her decision.
-: Um, I mean I don't really think it goes
to the forum analysis, you know? This is a--
-: Then let me ask you,
does it have any impact on our conclusions or..
how should we consider the last attorney general fact?
Find one that is on this meeting, that we're--
-: Oh, I'm sorry, your honor.
I understand what you're saying.
That there had not been an open meeting or violation,
with respect to the doctoring of the minutes.
I don't think that it has any bearing
on the resolution of this case.
Justice Cypher: Well, what were the factors, I mean,
shouldn't we have that in front of us?
-: Well, your Honor, we're not appealing
the dismissal of the count.
(both) on the open meeting loss
-: Right. And I mixed up the tort claims
with the civil rights claim before.
But, I guess I don't understand
why this is not a factor we could look at,
or could look at what the AG found
on the open meeting law violation issue.
-: Because that was a very narrow finding
that the open meeting law wasn't violated
and we're not contesting that.
So, none of that
-: None of that is relevant?
-: No.
-: Let me ask you again about your free speech absolutism.
What about fighting words?
So, you raise a facial challenge.
If we agree with you and we say, you're right.
This, on its face,
this statute violates free speech principles.
What else do we say as far as fighting words,
slanderous words.
Kremmer: Well--
-: Accusing someone of being a pedophile.
What do we say?
-: (stammering) I mean, you know, Your Honor,
I think that fighting words is.
-: It's directional words. I mean, you know,
? are those okay?
-: No, the term that I think is preferable
to fighting words is words
that are calculated to incite imminent violence.
She was angry that she...
-: So it's okay to prohibit.
Kremer: If she called them a name.
-: Okay, it's okay to prohibit that.
-: It's okay to prohibit incitement
to imminent violence, yes.
-: I was trying to get to your absolutism.
All right. Thank you.
Kremer: Yes.
-: What about differences in our interpretation
of the Declaration of Rights
as it relates to First Amendment issues?
Are you familiar with the
Walker versus the Georgetown housing case?
-: Yes, I am, Your Honor.
-: What does that say about
enhanced constitutional protections
under the Declaration of Rights in this area?
-: Well, I think that this court
has always left open the possibility
that Article 16 is more expansive
than First Amendment jurisprudence,
but has never ruled on that
in the context of facts presented here.
But yet, you know, it certainly is.
-: But I would argue that
even under federal jurisprudence,
this policy on its face
and as applied is unconstitutional.
-: But you win even if it's only as applied.
-: Yes...
we do, we win.
But on that, I will close.
-: Thank you very much.
Okay, Attorney Davis, good morning.
-: Good morning.
And please the court, John Davis,
on behalf of the Southborough defendants.
Nearly every public body that operates,
does so under a set of rules or guidelines,
whether it's this court or a legislative branch
or an executive branch.
-: Can I ask you to start with the as applied challenge?
I mean, here is a citizen, a resident of Southborough
who's voicing concerns about budgets
and open meeting law violations,
and then is shut down.
And that's what the complaint says.
Why, why isn't that quintessentially
what the Article 16 is about?
Or the First Amendment.
-: Certainly around the, this court has followed
public forum doctrine,
and I would cite the Roman versus trustees case.
-: Yeah, but that was a First Amendment analysis.
But be that as it may, let's assume best case scenario,
this is a limited public forum for you, right?
Davis: Right.
-: So you can have content based subject matter restrictions
and restrictions on who may speak.
Davis: Yes.
-: Here's a Southborough resident speaking her concerns
about issues of public concern.
As applied, doesn't this at least go back?
I mean, you're at the pleading stage.
-: You can have, if it's a re limited public form,
you can have reasonable restrictions
that are designed to--
-: What is your theory of this
is a reasonable restriction on speech
where you have a resident of the town voicing concerns
about decisions on budget
and decisions related to open meeting law violations.
What is your theory of the case
that this doesn't go forward?
-: Reasonable restriction on speech has to do with
whether or not it disrupts the purpose of the forum.
The purpose of the forum is, is significant.
And the courts have said so to conduct
an orderly and efficient meeting.
-: But this is clearly, she's commenting on
exactly what was mentioned,
which is there are numerous open meeting law violations,
and she's saying, you're violating this statute,
then he's saying, that's slander.
I don't understand how it's possibly slander,
especially for a public official.
I'm relying on the slander language in the policy.
And he's misapplying it.
Isn't this a clear, I mean, he can't,
I can't dismiss this on the pleadings, on applied challenge.
-: I think if that were, if it had ended there,
Your Honor, if Ms. Barron in response
to Mr. Colin's remark said,
well, I still think you're violating the open meeting law,
and he had then pulled the plug at that point in time,
we'd have a different case.
-: Well no, you wouldn't
because you'd already have a violation.
He's already basically turning off the meeting
at that point.
So as applied, this is clearly, it seems incorrect,
isn't it?
-: At that point in time, he is applying
the public participation policy,
the public comment portion of the
public participation policy,
which prohibits slanderous or rude
or personal language. -: What's slanderous or rude?
It's accurate.
-: But then as the court below said that,
I would have a problem with that.
The judge below said, if it weren't limited,
by other restrictions in the public participation policy,
such as, you cannot use inappropriate language,
and it doesn't define inappropriate language,
but the inappropriate language,
I would interpret to mean that
you can't have vile epithets.
You can't have, you can't--
-: I'm sorry. I guess the most problematic part
of the policy is the word offensive for words, right?
So if the citizen got up and said,
I think spending is reasonable and under control,
and I know you folks violate the open meeting law,
but you're doing your best job
and we thank you for your service.
Everything's fine, right. That's not offensive, right?
Davis: Right.
-: That citizen would be allowed to speak.
Davis: Right.
-: Citizen plaintiff says the exact opposite
and she's shut down.
Isn't that just content based?
-: Well, your Honor, I would argue that
to the extent she goes over the line,
I mean, offensive, I agree.
-: I get the Hitler part,
which comes after she's shut down,
so take that aside.
This is just the two things about spending
and open meeting law of violations.
So what's offensive about that?
-: And she spoke about the expenses,
you're spending like drunken sailors.
Justice Gaziano: Right. -: And she wasn't interrupted.
She was not called on that.
She then asked questions about the town administrator
and asked to engage with the board.
And they said, no, we don't do that during public--
Justice Gaziano: Oh, we don't have a rule that says
only erudite people get to speak, right?
-: No, I understand.
Jusice Gaziano: She gets to say,
spending like drunken sailors.
-: Yeah, no, I'm not saying that that was a violation.
-: What was the violation?
-: When she-- -: Where's the offense?
-: He warned her consistent with the,
he warned her.
And may maybe he should not have warned
-: Wait, this is starting to sound familiar.
It sounds like he warned her and she kept speaking.
-: No, he, and then, after he warned her consistent
with the policy, she said,
you're acting like a Hitler, you're a Hitler.
-: Right. -: I can say what I want.
-: Yes -: It already happened.
-: And so that's the case that--
-: It already happened.
He shut it down before that, before.
Justice Gaziano: And maybe just let's go back
to my question.
I know that you're being ping ponged a little bit
and maybe-- -: Yeah, sure.
-: And maybe I don't if you're being offended,
but I know, I'm sure you're not--
Davis: I'm fine
-: I'm sure you're mildly,
but anyway, be that as it may.
give me the why it's offensive, you know,
when we have the pro-government
versus the anti-government speakers,
why is the anti-government person offensive?
-: I'm focusing on the language she used.
Justice Cypher: But what language?
-: But the "you're a Hitler".
-: But that comes after.
-: And and he hadn't cut, he did interrupt her,
and she had interrupted him before
and he interrupted her.
And he interrupted her, he said,
if you are going to, and she said,
I'm not slandering, then we will.
And then she said, you're a Hitler.
So he hadn't, he hadn't cut her off.
-: He may, you know what Daniel Patrick Mohan said,
you're entitled to your own opinion, but not your own facts?
You're not entitled to your own facts.
Davis: I'm sorry, your Honor.
-: And okay, so ma'am,
if you want to slander town officials
who are doing their very best, he brings up slandering.
Davis: Correct.
-: That's him. I'm not slandering.
Then he says,
then we're gonna go ahead
and stop the public comment session
and go ahead to recess.
That's what happened.
You can't rearrange the facts.
Davis: Understood, your Honor.
-: Before Hitler, he's done.
-: Yes, your Honor, that's exactly what he said.
And then she said what she said, and then he said,
we're going into recess.
He didn't say we're going into recess before
she said Hitler. She called him--
-: But he did stop the public comment session.
-: He did not.
-: He didn't stop the public comment session?
Davis: He did not.
Justice Cypher: I thought the tape was turned off, too.
-: No, it was not turned off until she called him a Hitler.
And then he says, his next words are,
we're going into recess and then this silence.
-: So what what I have is not slandering.
And then Calenda says,
then we're gonna go ahead
and stop the public comment session
and go ahead to recess.
And that's when she makes the Hitler comment.
-: Correct, yes.
And after she makes the Hitler comment, he says,
All right, we're going into recess.
That the sequence, your Honor.
-: But again, this is a decision on the pleadings.
It's not a trial.
Davis: Understood.
-: Can I walk you through?
'Cause I find the facial challenge more difficult.
So all remarks and dialogue and public meetings
must be respectful and courteous,
free of rude, personal or slanderous remarks.
So, that's a lot.
If you brought the Declaration of Independence
to the meeting, would that violate that provision?
(chuckles) Ya know?
-: Well, the judge below had concerns about that,
Your Honor.
But she went on to read the document as a whole,
and that's, when you've got a facial challenge--
Justice Karker: But, I mean
-: You tried to do-- -: But, I don't know.
But again, the standard is a substantial amount
of free speech gonna be blocked by this?
Or is it so open-ended that it's gonna allow
kind of discretionary decision making
that's inappropriate?
I just don't know what all these words mean.
I mean personal, I mean, again,
the Declaration of Independence is directed at King George.
A lot of it, I mean, this is personal, yes.
She's saying you're violating the open meeting law.
I mean, personal's, I mean,
there's a difference between calling you a pedophile, right?
If you're not a pedophile versus
saying you're violating the meeting.
They're both personal, but they're different, right?
-: And then the Judge below said that so long,
if those were words that you've just read, Your Honor,
were not limited, she would have a problem--
Justice Karker: Limited by what?
-: ...if they were limited?
-: What are they limited by?
-: By further language within the same paragraph--
Justice Karker: What?
-: Inappropriate language is not allowed.
I interpret that to mean that like true threats
or fighting words or profane shouting.
-: Shouting makes complete sense to me.
Shouting is a manner of speech.
It's not a content of speech.
Davis: Right.
-: But-- -: And then it also.
-: Inappropriate, I don't know what that means.
Respectful and courteous seems to be,
if I'm saying you're a wise lawyer
as opposed to you're a dumb lawyer, you know,
that has a substantive component to it, doesn't it?
-: It does, your Honor.
But it also got got down to these--
-: So I'm allowed to say you're wise,
but I'm not allowed to say you're stupid?
-: You can say whatever you like there.
(all chuckle)
But I mean isn't that what the problem with this is?
-: Well, the language of the policy also includes
provision with respect to disruptive behavior.
-: Right, but we have to deal with
the relevant challenge language,
which is respectful and courteous,
free of rude, personal and slanderous remarks.
We don't get to read that on the pleadings
in terms of the whole policy?
Why do you think that we get to do that?
-: Well, I understood your Honor was asking
about the facial challenge.
In a facial challenge, you are supposed to
try to read it as narrowly as you can
so that it is not unconstitutional.
And it's presumed to be constitutional.
So if you can, and as the judge below did
she read it narrowly.
-: And how do you apply respectful, courteous,
free of rude, personal and slanderous remarks
other than depending on the viewpoint of the hearer?
-: If rude, personal slanderous remarks
disrupt the meeting and interfere
with the business of government,
then I think that the board is entitled to shut it down.
Because now that's a reasonable restriction
based upon the fact that we are here
to conduct a government business.
We are here to conduct the business of the town.
-: Until, and in that context,
we can't talk about the personal conduct of the selectmen.
-: Oh, yes, you can. Yes, you can.
So long as it's not disruptive.
I think, I think once you get, once you go, I mean,
calling somebody as a Hitler ends the conversation.
It's not a way to advance the public discourse.
-: But so does closing the public meeting?
-: Yes, it does.
And that, so that's another issue.
If this court says that that sort of speech
below sets the floor and that's okay going forward,
the next public participation policy.
People are gonna be saying even worse things
and they're gonna cite Barron versus Southborough.
I don't see how--
-: Well, I mean they could cite Barron versus Southborough
for the proposition that you don't
get to discriminate against somebody
based on the viewpoint of the hearer.
That is justice Gaziano's point.
I think that something that is complimentary
would be allowed, but something critical
would no longer be allowed.
And that is quintessentially viewpoint discrimination,
isn't it?
-: I would think, yes, I would agree.
Just because it's somebody is criticizing,
I think you can criticize government officials.
I think they can do that.
I think somebody can come to the public comment--
-: The first amendment in Article 16, so.
-: So, yes, they can do that.
But, but when you interfere with the business
of the government by disrupting the meeting,
calling somebody a pedophile,
I don't think that would,
I mean there are gray areas and that,
but there are some that are clearly beyond the pale.
And I think when--
-: Right, and so couldn't you have a policy
that goes to the conduct of the participant
that is no shouting, no obscenity,
you know, things like that
as opposed to the viewpoint,
which is personal and slanderous remarks.
I mean, isn't slander in and of itself
a viewpoint depending on
whether call somebody in to distribute?
-: Yes, yes it is.
-: Right? And so, including that in the policy
seems to be problematic
because it quintessentially is viewpoint discrimination.
It's a viewpoint designation
because it depends on how the public hears it.
It calls somebody's reputation into question.
-: Only, I agree, your Honor,
to the extent you look at it in isolation.
If you look at rude personal and slanderous remarks
in isolation, it's problematic.
-: So if that were the only part of the policy,
you agree that this would go forward?
-: If that were the only part of the policy,
don't be rude, don't use personal remarks
because if you do, we're gonna shut you down.
-: And so your theory is that in context as a whole,
the policy is about controlling the decorum
of these Pablo comments sections of the selectins meeting?
-: Yes, your Honor.
-: If you took your pen to this policy,
you would certainly strike out the word "rude," correct?
-: I would probably make a few edits, your Honor.
-: Okay. -: Your Honor.
But, I do think that again,
when we're faced with a facial challenge,
we're required to look at it as a whole.
And that's what the judge below did.
She looked at it as a whole and said,
when you, and she wrote a declaratory.
She wrote declarations consistent with the DJ request,
and she wrote declarations that per pursuant to the law
would uphold this public participation policy
so that they could go forward.
-: Can I ask a couple of sort of particular questions?
The Hitler comment,
which is different from the pedophile comment,
'cause pedophile is implying, is this an opinion?
I mean, she's not really calling him...
She doesn't think he's, you know,
invaded eastern Europe and killed 6 million people.
She's using a metaphor, right?
So, I mean it's rude and it's disparaging,
but is it even, I mean, I just don't know what you do.
It's clearly, it's not a fact-based statement, is it?
I mean, I just don't know how you do...
-: It's vial epithet?
I mean, and you can come up with others.
I mean, and if this is going to be okay, if that's okay--
-: Not saying it's okay, I'm just trying to understand it...
What it is. 'Cause it's really,
it's a statement of opinion
and it's a rude statement of opinion,
but it's not, I mean, I just don't know how you,
how we calculate that and how we figure it.
And then I understand your point on that one.
The second one is the motion.
I think the motion judge finds that there's no threats,
intimidation or coercion here
because the open meeting will
allows you to remove someone.
Is that what she does?
-: That was part of her decision, your Honor.
-: But, I don't...
That allows you to remove someone
if you're not violating the constitution.
If you are violating the constitution,
isn't it satisfy the threats,
intimidation and coercion requirement?
Because it's just like gloves ski.
And it's just like the other case we've got
where you're threatening to remove someone from a room.
-: Well, if she, pursuant to the open meeting law.
-: I understand you don't think
it's a constitutional violation, right?
But if it is,
if we decide that it is a constitutional violation
and he's threatening to remove her,
doesn't it meet the state civil rights threats,
intimidation and coercion requirement as well?
-: And I guess the, this quote would also have to hold that,
that provision of the open meeting law
that says that the presiding officer can warn
and then ask someone who is disrupting a meeting to leave.
That's what he did.
-: No, there's a difference though.
If, for example, if the speaker keeps saying,
you've got five minutes, your five minutes is over
and I'm gonna remove you if you keep talking,
that's not interfering with the Constitutional Right.
But if he's threatening to remove her unconstitutionally,
isn't that a Civil Rights Act violation?
And the open meeting law
assumes that you're acting permissively, doesn't it?
You can't remove someone from a meeting
for violating the constitution.
And I mean, if you're violating the constitution,
you can't remove them, right?
-: Well, I think that's the first element
of the micro claim is you have to show interference
or, or threat or by threats.
So, I would agree with you, judge,
that may be interference,
but it doesn't necessarily rise to threats,
intimidation or coercion.
Just because you have interfered
now you have to show under the micro statute,
you have to go that next route.
It's not section 1983 where the interference alone
would be enough.
-: I know, but my understanding is--
-: Threatening to remove somebody
for exercising their first amendment right,
isn't that a threat?
-: If it's a direct violation, no.
It's a direct violation under the Longvaugh case
when you say get out and they get out, that's not a threat.
And the court, in the court here said that it's not a threat
because it was, it was a angry reaction.
It was an angry reaction to an outburst from Ms. Barron.
So again, I wouldn't concede that there were threats,
intimidation of coercion here.
Just if, because if this court decides
that that speech is protected under Article 16.
-: So if she was engaging in speech
that she was allowed to do and he says,
I'm going to have the constable remove you,
that's not a threat
because the open meeting law allows him to remove her?
-: I would maintain it's not interference with her rights
by means of a threat, intimidation of coercion.
-: Isn't that the exact opposite of what the cases say?
If you just took them away, it might be different,
but he's threatening to take her away if she keeps talking.
And that seems to be a classic threats, intimidation,
coercion. Unless I'm misreading those cases.
-: No, and Iwould have to agree that
if this court were to find that her speech
is protected by Article 16,
then we're probably in an area
where there's question of fact with respect
to threats, intimidation, coercion.
But I would also remind the court
that we did raise qualified immunity below
and this court can uphold the decision.
-: That's that's the question I asked your sister,
I don't know the answer to.
We've not applied qualified immunity
to mass Civil Rights Act.
-: Yes, you have.
-: We have? -: Yes.
-: So we have said not only do you need
to violate the constitutional right
to get a Civil Rights Act claim,
and you have to violate it clearly establish--
-: Yes, your honor. -: Which case is that?
-: Dew Art versus Healy, I believe.
-: Okay.
-: And there's no factual dispute
about when the meeting ended? Or was--
-: No, no, there is not.