People do not like being criticized, especially in public.

For politicians and public officials, this is part of their job.

Some of them are trying to change this by banning democratic dissent. Restrictions usually target people we charitably refer to as “gadflies” because they annoy and provoke local governments.

These cases end up in front of the courts and the gadflies always win.

“Debate on matters of public interest will often be heated and criticism will often carry a sting, and yet open discussion is the lifeblood of our democracy,” wrote Ontario Court of Appeal Justice Robert Sharpe in 2007’s Cusson v. Quan.

The sting is greater in municipal politics.

The gadflies are local, their criticisms cannot be separated from the individuals being criticized. City Hall is not a faceless monolith. The officials and politicians being criticized are seated in front of delegates.

This explains why local governments overreact. The Bracken and Gammie cases are well known.

In Massachusetts, that state’s highest court quashed a local bylaw requiring members of the public to act and delegate with “civility.”

The case involved a gadfly who called the local chairman “a Hitler” twice.

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 without violating both provisions of the Massachusetts Declaration of Rights, which provide for a robust protection of public criticism of governmental action and officials,” the Court writes.

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.”

The United States and Massachusetts constitutions grant absolute free speech rights.

Canada’s Charter of Rights and Freedoms grants a broad right to free expression, subject to limitations that “can be shown to be reasonable in a free and democratic society.”

A Canadian Court likely would strike down a similar “civility” bylaw as unnecessary and overly restrictive.

In Ontario, municipal meeting chairs can remove individuals for disruptive behaviour.  Removing someone for smearing a public official as “a Hitler” can be shown to be reasonable.

More on the ruling at Universal Hub here.

Journalism professor Dan Kennedy’s blog post is informative as well, especially near the end when he notes:

“But when I was regularly covering city council, select board and school committee meetings back in the 1980s, it would have been unthinkable for a member of the public to refer to a public official as “Hitler” — and, yes, there were obnoxious, uninformed members of the public back then, too. But there was also a certain level of propriety that everyone adhered to. It would have been inconceivable for anyone to invoke Hitler.

We are in a different world, now.”

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Published: March 14, 2023
Last edited: March 14, 2023
Author: Joey Coleman
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