This commentary is by Meg Mott, Constitution Wrangler, who taught political theory and constitutional law at Marlboro College. She is Putney’s town moderator.
In an effort to turn down the vitriol at public meetings, selectboards and school boards across the country have instituted civility codes.
In Southborough, Massachusetts, the selectboard required that “all remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal or slanderous remarks.” Voters were allowed to disagree with the decisions of the board; they just needed to state their disagreements respectfully and with decorum. “Inappropriate language and/or shouting will not be tolerated,” explained the town.
In other words, if you want to comment on town business in Southborough, you’ll need to use your inside voice.
On Dec. 4, 2018, during a particularly contentious meeting on proposed budget increases, selectboard Chair Daniel Kolenda accused Louise Barron of violating the civility code. If Barron was going to “slander town officials who are doing their very best,” then he was going to shut down the public comment session. Barron sued Kolenda and other members of the selectboard, claiming that her constitutional right to assembly had been violated.
Last month, the Massachusetts Supreme Judicial Court agreed with Barron. “Although civility can and should be encouraged in political discourse,” wrote Justice Scott Kafker, “it cannot be required.”
Public meetings are constituted by political speech, which must remain “uninhibited, robust, and wide-open.” By constraining speech in a public comment session, the selectboard violated Barron’s freedom to assemble.
Kafker relied heavily on the text of Article 19 of the Massachusetts Constitution, which guarantees the right of the people to “give instructions” to their representatives through three methods — “addresses, petitions and remonstrances.” The first two categories fit within the guidelines of civility, but the third is a very different sort of animal.
Addresses and even petitions acknowledge the selectboard’s authority. Remonstrances question that authority. When the revolutionaries listed their grievances against the King in the Declaration of Independence, they were engaged in a remonstrance: Here are the places where the King and Parliament violated the ancient law and here’s why we are severing that bond.
But not all remonstrances lead to revolution. In 1610, the Dutch Arminians presented a document to the ruling Calvinists that listed their theological points of disagreement. They called that document a Remonstrance.
Vermont’s Constitution is equally fierce about the right to assembly and the manner of speeches it affords the public. Article 20 states that “the people have a right to assemble together to consult for their common good — to instruct their representatives — and to apply to the Legislature for redress of grievances, by address, petition or remonstrance.”
As in Massachusetts, the people instruct their representatives. Sometimes that instruction will sound rude. Voters may be frustrated enough with their representatives that they feel the need to remonstrate, to lay out exactly why the public officials erred in their judgment.
As town moderator of a vociferous town, I welcome this reminder that the people’s right to assembly includes the right to remonstrate. Should a member of the selectboard bristle at a voter’s tone of voice, I am under no compulsion to “correct” that speech. Instead, my job is to help the frustrated voter remonstrate, to explain to the assembly, as best they can, what aspect of the official reasoning they don’t support and why.
Robert’s Rules of Order helps me in this regard. While Section 43:21 prohibits “attacks or questioning the motives of another member,” it also says that a member “can condemn the nature or likely consequences of the proposed measure in strong terms.” My job as moderator, then, is to help a voter voice their condemnation without crossing over into unprotected speech, such as threats or fighting words.
Moderators already perform that function with amendments. Just as I give would-be amenders a chance to work on the language of a proposed amendment, so I can give condemners a chance to formulate their best condemnation.
Luckily, the right to be rude is already baked into the Vermont tradition. As former town moderator Carl Fortune explained in Susan Clark and Frank Bryan’s 2005 edition of “All Those in Favor,” “Rely on Robert’s Rules for crowd control? You can’t. You have to find a way to help people express themselves.”
The primer for town moderators by Edward N. Chase is called “Ruling the Unruly.” The expectation is that tempers might flare up and that hackles may rise. But that doesn’t mean the people’s business cannot be done.
But just because anger and frustration deserves a turn at the microphone does not mean that order goes out the window. Rules, wrote Justice Kafker, may restrict the “time limits for each person’s speech” and may prevent speakers “from disrupting others.” Robert’s Rules gives moderators the power to rule statements out of order that are not germane to the topic and the assembled the power to overrule that decision by a simple majority.
It does not allow the moderator or the selectboard to impose order in the middle of a full-throated remonstrance.
Since remonstrance and condemnation are key to the right to assembly, what we need are not civility codes but remonstrance retreats. Participants could learn how to move from a growl and a sneer to a coherent argument based on constitutional principles. Public officials could practice restating the gist of the condemnation. And everyone could think about the best way to offer instruction so that the intended audience can hear it.
Besides, we all know that forcing decorum encourages political extremism. When one faction believes they cannot challenge the prevailing political orthodoxy, their option is to give up on politics or to use anti-democratic methods, such as political violence, to make their point.
Better always to make room for remonstrance and condemnation than to banish the unruly from our public meetings. To do so is not only unconstitutional, it leads to very dangerous politics. In the end, honoring the right to be rude does not just serve the aggrieved, it serves our democratic republic.
