In my home state of Massachusetts, the town of Southborough’s comment policy at town meetings partially read: “All remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal or slanderous remarks. Inappropriate language and/or shouting will not be tolerated.” Southborough resident Louise Barron was accused of violating the civility policy during a town meeting and was threatened with physical removal before she left on her own accord.

In her remarks to the board, Barron had said the town was “spending like drunken sailors” and that the town board had violated the state’s open meetings law. A town official warned Barron against slandering town officials, telling her that the public comment session would be stopped. Barron refused to back down. “Look, you need to stop being a Hitler.” Barron said. “You’re a Hitler. I can say what I want.”

The board called a recess, and told Barron that she would be escorted from the meeting if she didn’t leave, precipitating her exit. That action by the Southborough government, Justice Scott L. Kafker of the Massachusetts Supreme Judicial Court wrote, violated protections for freedom of assembly and freedom of speech in the Massachusetts Declaration of Rights, according to the Court’s ruling handed down on March 7. His majority opinion held,

“Although civility, of course, is to be encouraged, it cannot be required regarding the content of what may be said in a public comment session of a governmental meeting. What can be required is that the public comment session be conducted in an ‘orderly and peaceable’ manner, including designating when public comment shall be allowed in the governmental meeting, the time limits for each person speaking, and rules preventing speakers from disrupting others and removing those speakers if they do.”

Good old Massachusetts! Talk about pedigree: the state constitutional provision regarding the right to assembly was drafted by none other than John Adams, with assistance from his cousin Sam. As written, Kafker said, the provision “expressly envisions a politically active and engaged, even aggrieved and angry, populace” and “reflects the lessons and the spirit of the American Revolution….In this country, we have never concluded that there is a compelling need to mandate that political discourse with those with whom we strongly disagree be courteous and respectful.”

This goes into the cultural ethics blender along with the issues discussed in two posts yesterday: Twitter’s problem with gratuitously uncivil participants who threaten to limit free discourse by making it unpleasant and intimidating for others, and the Stanford Law debacle, when angry protesters’ jeers, insults and chants prevented a Federal judge from speaking. Some distinctions need to be highlighted.

The town meeting setting is clearly a site of government action, involving the First Amendment explicitly. The Southborough public comment policy went obviously astray by allowing “lavish praise” while “disallowing harsh criticism of government officials.” Because the town’s civility code was directed at government speech and was content and viewpoint- based, it required strict court scrutiny of restrictions.

The policies of educational institutions receive more leeway in regulating civility, both because of the nature of education and because they are not strictly part of the government. There a balance needs to be struck, but with educational institutions still having an ethical duty to encourage diverse points of view rather than allowing students, faculty and others to suppress them.

On social media platforms, the balance is tougher, as Ethics Alarms attempted to show in the case of the angry “asshole tweeter.”

The platforms can ban whomever they please and for reasons good, bad or arbitrary, but because of their profound influence on public opinion, discourse and democracy, it is unethical for powerful social media entities like Twitter to use their power to mislead and manipulate the course of democracy.

Veteran readers of Ethics Alarms will recall the dilemma posed here by an often perceptive but outrageously uncivil commenter, “Ablative Meatshield.” In an effort to apply First Amendment standards here (much like those directed by the MSJC), I allowed the commenter to continue commenting despite his offensive rhetoric and tone. The result was that many commenters abandoned the blog entirely after complaining to me directly in vain. It was a bad decision on my part despite the often high quality of ethical analysis Ablative Meatshield offered, though accompanied by gratuitous remarks like “Eat a box of dicks.”

As I read it, however, “Eat a box of dicks” could not be the basis for ejecting a citizen from a Southborough town meeting if it was accompanied by substantive criticism. That’s the right standard for the government.

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Pointer: Rick McNair

Source: ABA Journal