Joshua Abrams and Leonard Filipowski aren’t exactly what you might imagine as defenders of the Constitution, and you can’t really be blamed if you’re a bit put off by their behavior.
The pair, who were the subjects of a recent boston.com article are members of a class of YouTubers who seem to get their jollies (and, more importantly, their video views) by being rage-baiters. Their particular modus operandi, which they call “First Amendment Audits” involves setting up cameras in public places and trying to provoke government officials into losing their cool. In one such instance, Abrams walked into the Wakefield Town Hall and recorded himself asking public employees, “Who’s the stupid-visor?”
Crass? Sure. Cringe? Absolutely.
It’s hard for me in principle to disagree with giving government officials a hard time. I’m very much a “hold their feet to the fire” kind of guy. This surely isn’t my preferred brand of public discourse, but I can’t help but admit the tiniest bit of schadenfreude at the thought of someone who would proclaim themselves the arbiter of what I am allowed to do with my life and property, squirming a bit in discomfort.
Again, it’s not MY bag, but should it be illegal? Should governments at any level be able to suppress rude behavior in the name of the “public good?”
Just this March, the Massachusetts Supreme Judicial Court found, in Barron v. Kolenda, that Southborough’s public comment policy was unconstitutional. The old policy required that remarks made in public meetings be “respectful and courteous, free of rude, personal, or slanderous remarks.”
The high court disagreed, focusing on the state constitution’s Article 19 right to assembly that, according to the court, “expressly envisions a politically active and engaged, even aggrieved and angry, populace.” There is no constitutional requirement to be courteous; in Massachusetts, criticism of public officials doesn’t have to be polite.
In other words, being a Masshole isn’t illegal.
As for recording, MA law clearly states that while it’s illegal here to record private citizens without their consent, the same protection doesn’t extend to officials performing their duties.
Rudeness has a long, storied history in these United States. The founding fathers were hardly polite in their handling of George III and his supporters. Just keeping it local, John Adams (the politician) and his cousin Samuel Adams (the beer guy) in fact wrote Massachusetts’ Article 19 with this mindset firmly in focus. They never intended that officials should regulate what people say to them, only that they could prevent actual incitement to violence.
Across the country, so-called “contempt of cop” cases come up with a regularity that’s concerning. A well-known trope (which wouldn’t be a trope if it didn’t have a nugget of truth to it) is the cop who shackles someone for disorderly conduct, disturbing the peace, or some other nebulous charge, when in reality the person simply failed to treat the officer with the respect they thought they were due.
The 1st Amendment to the US Constitution, and numerous court findings since, make it very clear that being rude to a public officials, even those with the power to arrest you, is protected speech. There are a few specific circumstances where this isn’t true, such as “fighting words” meant to incite violence, but these are exceptions to the ironclad rule.
Now, an argument can certainly be made that you catch more flies with honey than with vinegar. You can also argue that what Abrams and Filipowski are doing is a cynical ploy that has more to do with YouTube views than Constitutional protections. You may even be right in that, and I might even agree. At the end of the day, however, it doesn’t really matter all that much. What they are doing is their right, and legislating that (at any level of government) under the justification of enforcing some “code of public civility” will have the opposite effect, and will lead to a corruption in one of the most fundamental rights of the individual: The right to be a jerk.
It doesn’t mean we all have to like it.
