Primary

Grant: The Speech Code We Don’t Need

While I applauded the result of the January 25 Town Meeting at which the rezoning proposal was approved for the Young mansion, the deliberations at that meeting and at the previous week’s Planning Board meeting saw a degree of censorship that diminished public debate. Voters saw enforcement of a speech code that defied common sense, and that was not in keeping with the grand tradition of the New England town meeting and our shared expectation of unrestrained debate on political issues.

Voltaire once said, “I wholly disapprove of what you say and will defend to the death your right to say it.” While Voltaire was French and pre-dated our Constitution, the commitment to defending unpopular speech is at the core of the First Amendment. At the January 25 Town Meeting, I found myself unpersuaded by the opponents to the rezoning change but convinced of their right to make their case.

Both sides ran into the strictures of the speech code imposed by the moderator at Town Meeting. Questioning the motives, credibility, or intent of anyone is forbidden. Also forbidden is speaking to the person instead of the issue. Asking follow-up questions earns a firm rebuke. And backing it all up is the threat of police action against those who fail to follow the code.

While on its face the code may seem to promote a laudable civility, it has proven over the past couple of years to do the opposite. Ordinary citizens trying their best to express themselves in front of a large crowd are admonished regularly, and seemingly innocuous comments can earn a quick gavel. Last spring, I noticed that almost every person who spoke was reproved either for a civility or time infraction. Longmeadow citizens, it seems, are not smart enough to participate in their own Town Meeting.

On January 25, one of the opponents was talking about parking requirements—hardly the stuff of incendiary rhetoric. And then he said: “When the investors purchased the property, it was a 1.8 acre parcel. Just one month ago, on December 21st, they sold eight tenths of an acre to the investor who happens to live right behind the property with a shared driveway in order to further shield himself from his own development.”

Gavel. “Please refrain from speculating on motives,” the moderator said. The speaker was, as was probably most of the hall, stunned for a moment, as if unable to understand the rule he was breaking. This was, in the parlance of the law and just plain common sense, a reasonable (if not the only) inference he was drawing. It was backed by indisputable evidence, and it was directly pertinent to the project being discussed. At most, it was a little impolite, but as any high school civics class will tell you, the First Amendment tolerates far more critical arguments than that.

I hasten to say that I found the attacks on the motives of the developers quite unconvincing. And part of the reason is that I know them, and I consider Andrew Lam, the purchaser of the .8 acre parcel, a friend. But that does not mean that critical comments of his motives and the motives of his partners are not fair game at a public meeting they brought about.

The fallacy of the speech code’s distinction between the person and the issue is that it is impossible to disentangle the credibility of the speech and the credibility of the speaker. Even though this brought about murmurings of disapproval from the moderator, a couple of speakers had it exactly right when they said the issue was a matter of “faith” and “trust.” After all, the proposal was all about actions to be taken in the future. Since we cannot know the future with any certainty, we must assess the probability of any future plan coming to fruition, which is a matter of intent and capability of the people who would carry out the plan.

There was a reason that Chris Orsulak noted that he and his wife coach a dozen teams in Longmeadow. There was a reason that he and many speakers will note the number of years they have lived in Longmeadow. They are trying to emphasize their ties to the community and their good faith. If positive comments like that can be made, if the credibility of the proponents of a measure or proposal can be bolstered, then it is surely relevant and fair play to be able to make the opposite case.

On the question of trust, it was highly relevant to me that the developers have proven themselves to be devoted to Longmeadow and that they seem to have the financial wherewithal to pull off this project. It is relevant that Mr. Lam has served, and continues to serve, on multiple town committees in a professional, credible fashion. It is relevant that my personal dealings with the Pantuoscos and their soccer camp have shown them to care deeply about kids and to be fair in how they run their business.

If, on the other hand, the developers had lacked any ties to Longmeadow, had they broken promises in the past, or had they even been convicted of perjury, none of that could be mentioned at Town Meeting under the prevailing speech code, as it would be speaking to the person and not the issue, and it would be seen as “speculating” about motives. But, of course, sometimes motivations and intentions are precisely the issue. And to be blunt, trust and faith were why the rezoning proposal passed. Many, many people were there because they knew and they trusted the developers, and not because of their deep knowledge of the rehabilitation plan for the mansion or the zoning issues.

The rule against follow-up questions requires that all questions be asked seriatim, and the questioner must then take a seat. On January 25, the chair of the Planning Board attempted to answer a question, and he did what many normal human beings do, he asked whether he had answered the citizen’s question. Nope, not allowed, the moderator interjected. The exchange was over. It could have been that the two had completely misunderstood each other, but under the speech code, any attempt at clarification or follow-up is not permitted. This would drift into forbidden “cross-examination,” which is deemed uncivil under Longmeadow’s speech code, but in the law it is called the “crucible of truth.”

This rule allows town officials to avoid tough questions because the actual question need not even be answered. Nobody can even point out the lack of responsiveness. You will find no crucible of truth at Town Meeting. A journalist who would question a politician with the docility required at Town Meeting would rightly be deemed a hack. But for citizens participating as legislators in their own town, such passivity is required in the name of civility.

The control on speech during the Young mansion debate was especially jarring because none of it strayed from the rezoning proposal itself. When citizens complained that the town manager had become a partisan in this question, they did so based on based on documents obtained from town government itself. When they criticized his role, it raised an important issue of whether the town manager ought to involve himself in town politics or to favor one group of citizens over another. If the criticism stung, it was because it was factual and pertinent. And yet, the chair of the Planning Board eventually declared such criticism of the town manager to be out of order at the Planning Board meeting.

Town officials who seek, by fiat, to eliminate criticism of policies or policymakers in public meetings do sometimes find themselves and the municipalities they represent lighter in the wallet. When such speech codes are pushed to the point of using the police to lay hands on citizens who express unpopular or uncivil opinions, the stakes are high indeed. For example, a critic of the South Hadley School Committee’s handling of the Phoebe Prince matter obtained a $75,000 settlement after he was forcibly escorted from a meeting.

The speech code used to control the debate over the Young mansion is not something Longmeadow needs, and it may become an utter embarrassment to the town if someone insists upon exercising his or her free speech rights to the Constitutional limit.

– Alex J. Grant is a lawyer living in Longmeadow. His email address is alex.grant68@yahoo.com.