In a sharply worded letter, an attorney for the American Civil Liberties Union has warned the town that the code of conduct required of this year’s Fourth of July parade participants violates the state’s guarantee of free speech, is unconstitutional, and should be rescinded.
The four-page letter was written by ACLU managing attorney Ruth Bourquin and mailed by first-class mail and email to the Harvard Select Board (care of executive assistant Julie Doucet) and to Town Administrator Tim Bragan. The Press obtained a copy from an anonymous source this past weekend and has posted it to the Press website. Click here to download and read the letter.
The Press has attempted to learn the source of the complaint that led to the ACLU’s intervention but has so far been unsuccessful, and the organization has not responded to queries for additional information.
“We’re reviewing the letter with Town Counsel Mark Lanza,” Select Board Chair Rich Maiore wrote the Press Tuesday. “I anticipate we’ll then discuss [it] with the Fourth of July Committee. I’d like to get a sense of how other towns handle this issue and then draft a policy to share and discuss with residents.”
Informally enacted, constitutionally questionable
As reported in the July 7 issue of the Press and according to members of the Fourth of July Committee interviewed by the paper, the parade code of conduct—and the policy requiring parade participants to follow it—was adopted in response to complaints the committee received in 2022. The code was drafted by outgoing chair of the Fourth of July Committee Anne Hentz and adopted by the committee’s three appointed members, Hentz, Chris Connors, and Christopher Chalifoux, a week or two before this year’s parade.
Bragan told the Press in a July interview that the committee had the authority to adopt a code of conduct and ban participants who violated it. The code, however, was never put to a formal vote by the committee, nor was it vetted by town counsel or reviewed by the Select Board prior to its enactment. According to its website, the committee met twice in 2023, but no minutes have been posted since 2019, an apparent violation of the state’s Open Meeting Law.
In her letter, Bourquin wrote that the code violates “free speech principles.” Because the Fourth of July Committee is appointed by the town and acts on its behalf “constitutional requirements preventing unlawful [government] suppression or censorship of free speech” apply, she said.
Most problematic, in Bourquin’s view, is the code’s requirement that participants “refrain from using the parade as a platform to promote any specific agenda.” This includes, the policy states, “using slogans, displaying signage or distributing literature supporting or opposing any specific governmental policy, ideology, political party, candidate, or elected official that could be reasonably considered demeaning, discriminatory or harassing behavior or speech deemed inappropriate.”
Yet, writes Bourquin, the code lacks any standards to guide the application of “such a sweeping ban,” which she says clearly violates Article 16 of the Massachusetts Declaration of Rights and its promise that “The right of free speech shall not be abridged.”
The legal argument
Free speech law does allow restrictions on “the time, place, and manner” of speech in a public forum, but such restrictions cannot be “content-based” or “viewpoint discriminatory.” In the context of free speech, the term “viewpoint discrimination,” according to the First Amendment Encyclopedia, a site maintained by the Free Speech Center of Middle State Tennessee University, occurs when a government, an institution, or an authority treats different viewpoints differently. For instance, if a government permits only speech that aligns with a specific political ideology and suppresses or censors opposing viewpoints, this would be considered viewpoint discrimination. A law banning all political speeches in a public park would be content-based; a law banning only political speeches by members of the Socialist Party would be viewpoint-based. In the words of Justice Anthony M. Kennedy in Rosenberger v. Rector and Visitors of the University of Virginia (1995), “Viewpoint discrimination is … an egregious form of content discrimination.”
In her letter to the town, Bourquin wrote, “Speech restrictions in any kind of public forum must contain ‘narrow, objective, and definite standards’ to guide an official’s discretion. A government regulation that allows arbitrary application is ‘inconsistent with a valid, time, place or manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view.’”
According to Bourquin, that is exactly what happened at this year’s July Fourth parade. While the Republican Town Committee truck was allowed to display a flag that is seen by some as a protest against the Black Lives Matter and police reform movements, the League of Women voters was barred from displaying a poster protesting the repeal of abortion rights by the Supreme Court and, according to Bourquin, questioned about another that read “Gender rights are human rights.”
“This kind of government-sponsored content-based and viewpoint-based suppression of protected expression cannot stand,” Bourquin wrote. “We urge the town to take immediate steps to rescind the policy and notify the public of its rescission.”
In separate letters to the Press this week, Arm in Arm, an organization that fosters diversity, equity, and inclusion in town, and the Harvard League of Women Voters have both protested the censoring of the league’s placards in last month’s parade.
“The LWV of Harvard hopes that the Select Board … will work with the town administrator and the Fourth of July Committee to create a code of conduct that is truly fair and welcoming and, importantly, constitutional to all parade participants,” writes league president Stephanie Opalka.
The Republican Town Committee’s truck travels down Ayer Road.. (Photos by Lisa Aciukewicz)
Norah Bailey, Shannon Molloy, and Colleen McFadden march with the League of Women Voters in the Fourth of July parade.
