America is awash in outrage and incivility, routinely exuded by people on the left and the right of the political spectrum. And the flames are fanned by a social media culture that rewards the loudest voices and the most strident personal attacks.
Targeting everything from school board to library board meetings, angry people now are determined to make their voices and their grievances heard. What were once often staid, boring occasions have become free speech cauldrons that challenge the patience, restraint and even the courage of those who serve on public boards and committees.
Sometimes outrage and incivility are part of a well-rehearsed performance intended to intimidate political opponents and protect unearned privileges. But they also can be a genuine response to real injustices.
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Outrage and incivility may fuel progress but also can threaten democratic values. As Yale Law professor Stephen Carter argues, we need to “recognize the terrible damage that free speech can do if people are unwilling to adhere to the basic precept of civility, that we must sometimes rein in our own impulses – including our impulses to speak hurtful words – for the sake of those who are making the democratic journey with us.”
Massachusetts court strikes down civility code
This is why all over the country, we are hearing renewed calls for civility and why cities and towns are promulgating codes of conduct designed to foster it. On March 7, the Massachusetts Supreme Judicial Court made headlines when it struck down one of those codes because it violated the state constitution’s protections of free speech and assembly.
The court courageously defended robust and uncivil speech in the political arena and what one writer called “the right to be rude at public meetings.“
The civility code in question came from Southborough, Massachusetts, which enacted it to govern the conduct of participants in meetings of its town bodies.
Its code stated: “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. Furthermore, no person may offer comment without permission of the (c)hair, and all persons shall, at the request of the (c)hair, be silent. No person shall disrupt the proceedings of a meeting.”
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The Southborough code was put to the test during a Dec. 4, 2018, meeting of the community’s Select Board. Louise Barron, whom the Massachusetts court characterized as a “longtime participant in local government,” went to the meeting determined to speak during a designated time for public comment. She wanted to criticize the board for what she regarded as its profligate spending and for repeatedly violating the state’s open meeting law.
She brought a sign with her that read “Stop Spending” on one side and “Stop Breaking Open Meeting Law” on the other. When it was Barron’s turn to speak, she criticized the board for “spending like drunken sailors” and called for a moratorium on town hiring.
That is all familiar stuff for anyone who has spent any time in local government meetings.
Things went awry, though, not from any incivility on Barron’s part, but from the unfortunate, overheated reactions by Southborough Select Board Chair Daniel Kolenda, after Barron said the board had “broken” the open meeting law.
She spoke in a rather flat and unemotional way until Kolenda interrupted her and accused her of trying “to slander town officials who are doing their very best.” When Barron responded that she was “not slandering,” Kolenda abruptly announced that he was going to “stop the public comment session now and go into recess.”
Exchange at meeting escalated quickly
Becoming agitated, Barron protested and urged him to “stop being a Hitler. You’re a Hitler. I can say what I want.” As the board chair got up to leave, the court ruling said, he “began pointing in Barron’s direction, repeatedly yelling at her, ‘You’re disgusting!’ ” He then told her that if she did not leave, he would have her “’escorted out.’”
It seems clear that Kolenda’s interventions escalated what should have been a rather tame exchange. He weaponized the town’s civility code to silence a critic. This is not to say Barron’s incendiary response didn’t make the situation worse. It surely did.
Nonetheless, the Massachusetts Supreme Judicial Court took Barron’s side. It found that the Southborough civility code was not viewpoint neutral, as any speech regulation has to be, because it allowed fulsome praise of public officials but not vehement criticism.
The court connected what Barron did to a long history of protest and disruption running all the way back to this country’s founding. It said the state constitutional protection of speech like Barron’s reflected “the lessons and the spirit of the American Revolution” and encouraged protest and opposition to authority “even if it was rude, personal, and disrespectful.”
There was, the court also observed, “nothing respectful or courteous about the public assemblies of the revolutionary period.” It argued that for speech in the political arena to be truly free, speakers have to be able to “express (their) views vehemently, critically, and personally to … government officials.”
But reading the court’s decision, one would never know that we are living in an era of name-calling, abuse and the vile threats all too often now one of the “rewards” of public service at the local level in Massachusetts and elsewhere. The court ignored the social context and downplayed the threat that incivility can pose to speech itself and the fact that the outrage era may discourage people from doing the kind of public service on which towns like Southborough depend.
Yet, the Southborough case should also remind us that the problem of incivility is both real and pressing.
As former President Barack Obama once explained, “It’s important for us to pause for a moment and make sure that we’re talking with each other in a way that heals, not in a way that wounds. … Rather than pointing fingers or assigning blame, let’s … expand our moral imaginations, to listen to each other more carefully, to sharpen our instincts for empathy and remind ourselves of all the ways that our hopes and dreams are bound together.”
What places like Southborough are trying to do by enacting civility codes is certainly understandable. But we also need to recognize that civility is not a virtue in and of itself. Its value ultimately depends on other things. All too often, civility’s defenders ignore the causes of outrage they decry and cases in which injustice, not lack of civility, is the real problem.
In the end, however, the court in the Southborough case got things right when it said, “Although civility can and should be encouraged in political discourse, it cannot be required.”
Until we succeed in encouraging and cultivating civility in our communities and our lives, we will not be able to realize Obama’s vision.
Meantime, as the court rightly put it, “Political speech must remain ‘uninhibited, robust, and wide-open.’ ”
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College in Massachusetts.