Acton's Special Town Meeting violated Free Speech rights of voters


Acton Town Moderator Peter Ashton decided to violate the free-speech rights of voters at the Special Town Meeting (STM) on December 4, 2017, by refusing to allow public criticism of elected School Committee members.

Ashton researched his authority to silence speakers and got the green light for this illegal ruling from Town Counsel Nina Pickering-Cook. Interestingly, Pickering-Cook fancies herself an expert on First Amendment law, writing an article on her website that says that public officials cannot shield themselves from criticism. Except in Acton, that is.

Ashton read an introduction to Warrant Article One, a School Committee proposal to fund a Feasibility Study for two new elementary school buildings. Ashton cautioned Town Meeting members that in order to preserve "civility," he "[would] not tolerate" criticism of others by name.

"I am well aware of the tenor of the discussion on social media and I will not tolerate personal attacks, threats, or bullying of any kind." To read Ashton's prepared statement, click here and scroll down to page 6: http://www.actonforum.com/sites/default/files/PRR-12-14-17.pdf

The authors of this article all wished to speak to Town Meeting and to urge a vote against this Warrant article because we felt that the School Committee could not be trusted to manage the building project with the current leadership in place. The School leaders publicly misled and lied to residents of Acton and Boxborough when former Superintendent Glenn Brand was forced to resign. We all planned on calling for the resignation of members of the School Committee, including its Chair, Amy Krishnamurthy.

By restricting or silencing criticism of our elected officials, the approximately 1,200 registered voters who attended the Town Meeting were given a one-sided presentation and view of the warrant article and were not fully informed of their options to express their misgivings at the school funding warrant article by voting against it. Subsequently, the article overwhelmingly passed.

Ashton came to the meeting prepared to shut down this avenue of "bullying." He exchanged emails with Town Counsel, previewing the expected calls for resignation and telling Pickering-Cook that he viewed this as a "personal attack" and he "would not allow it."

"I want to make sure you agree with me on this," Ashton asked.

Pickering-Cook responded "I agree."

"I think that very strict control of the meeting is warranted and needed in order to focus only on the issues in the warrant," she wrote.

She concluded, "You can remind folks of their other democratic avenues to express question (sic), concern and dissent." To read the full email exchange, see: http://www.actonforum.com/sites/default/files/PRR-12-14-17.pdf

Controlling the meeting and preventing disruptions is certainly within the Moderator's power. Speakers who continue to speak after the Moderator has ordered their silence are subject to arrest and detention. But it is a fundamental tenet of democracy to be able to publicly criticize our elected officials, and there is no more appropriate venue than Town Meeting. This is where decisions are made, and this is the one place where issues such as this are to be publicly discussed. The suggestion that voters should seek "other democratic avenues to express...dissent" is offensive.

Each of the authors will discuss how this affected them during the meeting, and readers can decide if the Town's Moderator, abetted by town counsel, should be purposely skewing results of Town Meeting votes and thereby tainting the results. Does the First Amendment to the U.S. Constitution apply throughout the land except at Acton's Town Meeting?

If you'd like to watch the "debate," it is on www.ActonTV.org, at time 58:30. Here is the direct link: http://actontv.org/on-demand/post-video/special-town-meeting-12-5-2017

SCOTT SMYERS

Smyers planned on speaking but decided to remain seated after Ashton's preamble warning and hearing the exchange between Nitschelm and Ashton.

I am not hesitant to speak up at Town Meeting and have spoken as a citizen expressing my opinion on many issues over the years, but the Moderator was clearly determined to shut down any dissenting opinions and defending the SC under the ruse of maintaining order.

After hearing the Moderator cut Allen Nitschelm off when he asked for resignations, I was very frustrated because my plan was to remind the public how the SC no longer had my trust and they could easily restore my faith and the trust of many others with the resignation of the Chair. This statement was even more directed at an individual compared to Nitschelm's statement. I was also planning on talking about how important it is for us to be absolutely sure every elected official has good judgment. Not perfect, but at least above average. We trust the School Committee with an incredible amount of money and thousands of children’s education. After ruminating on the Moderator's incredibly broad (and unreasonable) interpretation of "personal attacks," I decided to remain seated rather than risk getting into a heated dispute with the Moderator.

Although I supported the feasibility study from the beginning, I voted NO along with nearly 100 other citizens who likely understood this was a rare opportunity when we had some serious political leverage because the truth was so clearly on our side. A disappointing loss, but a loss based on principle. We elect people because we believe they have good judgment. Many of us believe certain members of the School Committed have exhibited below average judgment, and that cannot be excused or ignored until enough time has passed. In spite of the common strategy that works for some politicians when caught in a scandal (delay, ignore and wait for another news cycle to take over) bad judgement does not dissipate over time until it is no longer toxic.

I completely disagree with and denounce the Moderator's approach and fear this tactic will creep into other public meetings (if it hasn't already). People who truly believe in free speech understand that there are advantages to letting people speak, even if they disagree and seem unreasonable. In other words, if people like Allen, Charlie, and I speak our minds and the public interpret our points as trivial or irrelevant, the issues will fall flat and not gain any traction. However, if our message does connect with other informed members of the audience, the message may indeed gain some support and be brought to the next level where action may be taken. The Moderator's approach was clearly intended to minimize the likelihood of our message gaining traction by limiting the public discussion. Perhaps this is because the underlying issue is not going away and their best (and only) defense is to minimize open discussion.

CHARLIE KADLEC

The exceptional attendance at the December 4, 2017 Special Town Meeting assures it joining the list of memorable town meetings. The marijuana Articles brought hundreds of Acton voters to a town meeting for the first time, many certain to return having discovered the power and effectiveness of this “purest form of democracy” which is also the Town’s Legislative Branch.

Unfortunately this STM will also be remembered for a decision by Peter Ashton, the Moderator, to “silence” any criticism of the School Committee and its members, thus denying me and others who opposed the motion under Article 1 (the school’s “Feasibility Study”) the right to explain the reasons for a NO vote. This was a bad decision, made for the wrong reasons and misrepresented to Town Meeting as the customary admonition to keep the discussion “civil” and avoid “personal attacks.” Criticism of the actions of elected officials is not a “personal attack.”

As shown in the emails obtained by Acton Forum (link to emails above) Peter made his decision well ahead of the STM, and wrote about it and about his fear of not being able to handle “a very nasty meeting” to Nina Pickering-Cook, the Town Counsel, who offered an unqualified “I agree” and further encouraged Peter to maintain “very strict control” of the meeting.

Ms. Pickering-Cook’s advice is ironic given her review of a Supreme Judicial Court’s decision which clearly affirmed the right of citizens to criticize public officials (link: http://www.andersonkreiger.com/municipal-law/2016/04/15/public-officials-must-bear-public-criticism/) which includes the following: "Protected Speech: The SJC Says There is a Right to Criticize and That Attempts to Quell That Public Criticism May Subject Public Officials to Liability."

Approval of the Feasibility Study by the two Town Meetings was not needed by the School Committee (SC) to spend E&D funds, it is a requirement by the MSBA to show community support for the School District’s building plans. The SC has full control of the project, approval of the plans is also approval of the SC’s control. Confidence and trust in the SC were therefore relevant issues for consideration of the Feasibility Study vote.

Not everyone in Acton has been following the Glenn Brand dismissal fiasco. There were many people at the STM for the marijuana Articles who might for the first time be hearing the reasons why I and others did not wish to support the current SC. Ashton’s ruling denied them that information. That is not how good decisions are made at Town Meeting.

State Law gives Town Meeting Moderators the right to “’silence” any speaker for any reason or no reason. Whether or not this is too much power is a discussion for another time, but for the sake of preserving Town Meeting as a viable part of local government it should be clear that the Moderator must refrain from controlling the debate to favor or protect one side, for whatever reason.

I suggest that the following quote be included in the Moderator’s message for the next town meeting Warrant :

“It is the first responsibility of every citizen to question authority”
Benjamin Franklin


ALLEN NITSCHELM

I did end up speaking against the motion, but my prepared text was scrapped because of Ashton's preamble. Despite not making any "personal" attacks, I was repeatedly interrupted and told to "move on" when I called for the resignation of "individuals" on the School Committee (and not mentioning any individual names.)

Now that I've had time to reflect on what happened, I am pretty upset that Moderator Peter Ashton prevented Town Meeting from being able to hear and consider our point of view. I am NOT an opponent of the Feasibility Study itself, but I feel having accountability for our elected officials is more important than a building project.

I believe Ashton is purposely misreading his sources. If you read Town Meeting Time, it is clear it is about "decorum" and protecting speakers from attacking one another. I believe it is an illegal extension of this power to have the Moderator prevent the legitimate criticism of our elected officials. I have copied the Library's Town Meeting Time section that Ashton referenced here: http://www.actonforum.com/sites/default/files/TMT-1.pdf

I have found several court cases from around the country about the difference between maintaining decorum at a public meeting (a legitimate goal) and shutting down criticism of public officials (a violation of free speech rights.) The reason these situations are different is because criticizing public officials is our right as voters, and shutting down such criticism for the protection of those being criticized is wrong.

WISCONSIN

A man criticized public officials at a Town Meeting and was shut down. He sued and the court wrote that Government officials create a designated forum for speech when they open up the microphone for a public comment period. During this period, citizens may criticize government officials – essential in a constitutional democracy.

http://www.newseuminstitute.org/2015/06/15/man-silenced-during-public-comment-period-can-proceed-with-claim/

This is the link to the court case order itself:

http://www.wiwd.uscourts.gov/opinions/pdfs/2014/14-C-162-C-05-12-15.PDF

ILLINOIS

Here is an Illinois case with a similar finding. A speaker tried to criticize School Committee members at a SC meeting and was shut down. He sued and the right to criticize officials was affirmed.

http://www.newseuminstitute.org/2016/05/10/federal-judge-right-to-criticize-public-officials-clearly-established/

The article quotes a 1931 court ruling:

The First Amendment protects the right to criticize public officials. In 1931, Justice Hugo Black expressed it eloquently in Bridges v. California, when he wrote, “It is a prized American privilege to speak one’s mind, though not always with perfect good taste, on all public institutions.”

Ashton framed the discussion by saying that he wanted to prevent "bullying." How many Town Meeting members were "bullied" into remaining silent? This is a violation that cannot continue.

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Comments

can free speech be returned?

Ought the Moderator ask of a SC member, before they speak, "Will your semantics be congruent with the truth?"
This Name

are you gearing up for a lawsuit?

Hello all, I watched the first half of the 2+ hour Town Meeting on the live stream, and I agree that the moderator seemed to cut Allen off rather quickly - perhaps he was just trying to assert a modicum of control over the proceedings after the extremely late start and technical glitches that plagued the early part of the meeting? Regardless, I would hope that Allen and co. would reach out to the moderator and SC directly and ask that they be allowed to speak and criticize, if desired, at future SC and Town Meetings without actually filing a suit against the Town (citing the above evidence from prior suits). As a taxpayer, I cringe at the thought of the $1000+ per hour legal fees - as documented on the FB page - that would result from even the threat of a suit. We'll already be on the hook in 2019 for the $500 per year override - please have mercy on us! :) - Jaime

Not a reaction to late-start STM

Hi Jaime,

Thanks for your comment and good suggestion.

Moderator Ashton's ruling was not a reaction to the late-start of the STM or a reaction to the technical glitches experienced. This was a prepared statement, checked with Town Counsel, in advance. That being said, our goal is to prevent this from ever happening again to future voters, so Charlie and Scott have reached out to Mr. Ashton to request a meeting to try to avoid taking this further. Whether we do will be up to Mr. Ashton.

Allen

Allen Nitschelm has lived in Acton since 1998 and writes about fiscal issues at the
local and state level. He is a former member of the town's Finance Committee
and is an Associate Publisher of Acton Forum.

POLS ARE POLS ARE POLS - AND NEVER TO BE TRUSTED

Daily, we read about pols and their sexual harrassment episodes that their fellow pols try to explain away. Pols' (all elected or appointed office holders) number one goal, to maintain their power, is followed by NEVER speak ill of a Pol. Many lawyers associated with Pols believe the law is secondary to the wants of Pols (look at our town lawyer). In the US for reasons I have never quite understood, we the people have granted our Pols enormous power and have put them on pedestals from which they look down upon us. Until we as a people understand our appointed and elected officials WORK FOR US and serve at OUR PLEASURE we will continue to have STMs similar to the last fiasco. We have allowed the town meetings in Acton to be nothing more than a lecture from connected groups to the citizens. By the standards of Acton Town Meeting "laws" most of the countries of Europe offer more freedom! In fact, the inhabitants of village India seem to have more freedom.

As an aside, local and state court decisions made outside Massachusetts are not indicative, necessarily, of the Constitution of our Commonwealth. There is still some unique state rights within the 52.

Free Speech

Greetings Allen & Happy New Year:

I am pleased to see you are pushing back on Mr. Ashton’s decision to stifle speech he found uncomfortable. A foundation of a democratic government is the free and open sharing of ideas, thoughts, and criticisms. Ideally, as was the case of your comments, such criticisms are not formed as personal attacks. Public officials operate in the public environment, and should be accountable for their actions, and open to criticism when such actions are thought not to be in the best interest of the town or its citizens. They likely understand this when they take on the task.

In a matter as important, and expensive, as a school building project, I think it fair to ask whether those making the proposal can be trusted. The School Committee should be taken to task for their behavior in the recent Superintendent dismissal matters and the apparent disinformation program which followed. They have not, to date, adequately explained how their public portrayal of events squared with their closed-door executive-meeting discussions as documented in the meeting minutes which were not expected to be made public in full, but were released by parties unknown. They have not explained why they felt the issue so serious as to warrant dismissal charges, but did not consider open dialog with parents and students, especially those student-body members of the time-frame of the event. No government body should operate in the dark, or use tactics such as FOIA foot-dragging or excessive redaction to forestall public disclosure. In this series of events I believe the School Committee has attempted to use such tools and, as a result, has raised additional questions about their actions. To date the School Committee seems more interested in objecting to release of unredacted minutes than in explaining how they square with public comments made by the same body.

I am sorry to see the reduction in Beacon subscriptions and coverage, but print news seems to be on the decline these days. This makes it all the more important for the Moderator of Acton Town Meeting to allow a reasonable exchange of ideas and thoughts, certainly one of the purposes of meeting as a group. If we cannot have a fair exchange we should save the time and money and move away from the Town Meeting concept to some form of representative government.

The role of Moderator is new for Mr. Ashton. He certainly has some interesting ideas on how to improve Town Meeting, and for those I wish him luck. The learning curve, however, was painfully apparent in the last Town Meeting. Hopefully Mr. Ashton will be quick to adjust, and things will be smoother in the future. I certainly hope there will be reasonable tolerance for ideas and thoughts as part of the process. I understand there is a balance to be struck. The focus, however, should center on the fair exchange of ideas. I am disappointed that our Town officials requested and relied on a legal justification to cut off debate, and certainly hope this is not the direction things are headed. I realize not all people can cajole or use humor to control a situation, but will be sorely disappointed if we travel a road requiring constant legal coaching in the future. Since Mr. Ashton sought council prior to the meeting, I hope he also attempted to reach those individuals of whom he had concern and discuss his concerns and game plan with them. Acton is still a small enough town that such actions are reasonable, especially given the few people with an ongoing interest in Town affairs. Mr. Ashton has had a working relationship with the School Committee and is still an advisor to this body. Given that such is the case, extra care should be used in striking the balance on discussion of school matters. I think we have had a reasonably fair dialog over the past 40 or more years in our town meetings, and trust we shall have the same for many years to come.

Thanks, Allen, for pressing this most-important issue.

Bob Hertz

Bob Hertz