From the Right to Assemble to the Right to Be Rude

Since its ratification in 1780, Article XIX of the Massachusetts Declaration of Rights has provided a robust and independent protection for the right of the people to peaceably assemble and redress their grievances before their legislature. In 2023, in Barron v. Kolenda, the Supreme Judicial Court of Massachusetts interpreted the history and purpose of Article XIX to hold that the Town of Southborough’s civility policy for public comment periods at its governmental meetings was unconstitutional. This Note connects the history of Article XIX and its traditional interpretation with its application in Barron and describes the case’s effects on local government. This Note also argues that, although the Supreme Judicial Court reached the correct conclusion in Barron on other grounds, it misinterpreted the original intent and original public meaning of Article XIX. Finally, this Note concludes that the Supreme Judicial Court could have reached its decision in Barron solely under Article XVI, which provides the right to free speech. Instead, the court blurred the jurisprudential line between that right and the right to assemble by improperly and unnecessarily relying on Article XIX.

The native of New England is attached to his township because it is independent and free . . . . He takes a part in every occurrence in the place; he practices the art of government in the small sphere within his reach; he accustoms himself to those forms without which liberty can only advance by revolutions . . . .

—Alexis de Tocqueville