PITTSFIELD, Mass. — Members of the public are allowed to be rude during open microphone and even use hate speech, the city solicitor has confirmed.

 

On Monday, the Ordinances and Rules subcommittee discussed the Supreme Judicial Court's recent decision that regulating the substance of public commenters is "unconstitutional" and what that means for Pittsfield.

 

City Solicitor Stephen Pagnotta said the City Council rules largely conform with the SJC ruling with the exception of a sentence that states a speaker shall refrain from any personal attacks. He revised the sentence to state that the public comment period should be conducted in an orderly and peaceful manner.

 

"Our City Council rules really do very little about regulating how people speak or restricting them on what they can say," he explained. "So to a large extent, we already comply with the Supreme Judicial Court decision other than the language prohibiting personal attacks."

 

Pagnotta suggested deferring a vote on the revision because the Massachusettes Municipal Association will be holding a conference in early June. The MMA is reportedly coming up with a conduct code for public comment as well.

 

Ward 6 Councilor Dina Lampiasi asked if a person's speaking could be ended if they were attacking someone's identity and did not relate to the topic at hand.

 

According to the SJC, a person can comment on anything they want regardless of the content.

 

"There's a narrow exception which are fighting words. So if you say something, somebody were to say something during a public comment period and impacts somebody in the audience who then wants to get up and fight, the presiding officer can stop that but that is a very narrow exception which I hope we never have to worry about," Pagnotta explained.

 

"But basically, you can come up here and expound on whatever you want. We're not required to have a public comment period, but we have and if we do, we're really limited on what we can do."

 

He added that for Committee of the Whole meetings, the city had ruled that public comment can only be about items on the agenda. This does not apply to the general City Council.

 

"It's obviously concerning the ways that this is going to impact the community's ability to speak at open mic," Lampiasi said. "Limiting the mic and taking it away would obviously inhibit people from speaking out their voices but also the fear of people not wanting to be attacked and how that's going to affect those running for office and whatnot."

 

Ward 5 Councilor Patrick Kavey said members already get personal attacks and asked where the line is drawn for hate speech.

 

"There isn't a bright line. I mean, so hate speech. is free speech. If you say things that lead to physical confrontation, that's the narrow exception to free speech. So you can have somebody stand up here and say horrid things, particularly about each and every one of you who are on the city council," Pagnotta explained.

 

"The Supreme Judicial Court stepped back and specifically said it was not going to rule on slander, to what extent can you slander somebody in the audience without running into problems. You can slander members of the City Council up until the point where you can show malice by the speaker but the level for a city councilor to prevail on a libel suit is much higher than for an ordinary citizen," he said.

 

"Kind of the gray line, as we currently have our rule and which is permitted by the Supreme Judicial Court, is that conduct cannot disrupt the meeting. If it's disruptive then you can be asked to stop and if you don't stop you can be removed but speech itself is rarely disruptive."

 

Kavey said he thinks the council will be OK.

 

"I mean, we've all got thick skin and it's important to hear people out even if they're not necessarily being nice," he added. "I guess if it did ever get to a point legal action can be taken, but I don't I hope it doesn't happen."

 

During Tuesday night's council meeting, there were some pointed comments about councilors and Mayor Linda Tyer while speaking at the podium.

 

Craig Gaetani, who has taken out papers to run against Peter Marchetti and John Krol for mayor, addressed Marchetti about the race and suggested wearing a diaper for debates.

 

"Mr. Marchetti: When we get into debates you're not going to have that gamble in your hand so I would suggest that you leave it at home or maybe you should have," Gaetani said. "Maybe you should wear a diaper when you come to those forums also."