Solicitation ban at town dump raises possible First Amendment issuesMore Info
West Stockbridge — It might have sounded innocent enough. Ostensibly in response to complaints from residents about being accosted by salesmen, the Board of Health twice passed a resolution forbidding solicitation at the transfer station. But the board’s most recent action has touched a nerve in this town of only 1,300, where Yankee independence and the right to be heard run deep.
“This ruling, coming as it does just before our annual elections, is a clear effort to suppress free speech in our town,” West Stockbridge resident Richard Squailia said in an email widely circulated in the town. “It benefits incumbents by making it much more difficult to reach town voters.”
Indeed, at transfer stations and garbage dumps across the nation, it has been a long-held tradition for candidates to hold forth in front of scrap metal heaps and recycling bins in an effort to spread the word about their candidacies and reach voters who might otherwise be hard to find.
Board of Health member Scott Sawyer says the measure was not intended to suppress speech on any kind. He insists it’s a matter of safety and responding to the concerns of town residents who felt uncomfortable being approached by people as they were trying to take care of business at the transfer station.
“The transfer station is essentially a circular drive where people come on Saturdays,” Sawyer said in an interview. “They zip in and out — it’s not a place for gathering, standing around and creating a bottleneck.”
A March 23 email from the West Stockbridge Board of Health said: “At a duly posted Board of Health meeting held on March 2, 2017, with a quorum present, the Board took the following action: ‘To prohibit solicitation upon the grounds of the West Stockbridge Transfer Station.’ A motion was made and seconded with all members in favor (This will update a ruling done by a previous Board several decades ago).”
The “action” taken by the board is so broadly worded that it is difficult to know what kind of solicitation it’s targeting: commercial speech or political speech? If the latter, then the Board of Health’s action could run afoul of constitutional guarantees against the restriction of speech by the government. It also raises the question of whether a board of health even has the authority to regulate such activity at a town transfer station.
Squailia is convinced that the measure taken by the health board is designed to suppress free speech. “It has been no secret that Earl Moffatt has criticized and demeaned those who discuss town matters at the transfer station and [the West Stockbridge] Public Market, as seen on several Board of Selectmen videos over the past two years,” he said in his email and in an Edge interview. Moffatt is a selectman, the town health agent and he chairs the Board of Health.
Attorney Jeremia Pollard is a partner in Hannon Lerner, a law firm based in Lee, and is admitted to practice in several federal courts, including the United State Supreme Court.
“It’s an odd vote to say the least, and it certainly raises concerns regarding constitutionally protected rights, including Articles 16 and 19 of the Massachusetts State Constitution, which protect the rights of free speech and assembly from abridgment by the government,” Pollard told The Edge.
Pollard is currently town counsel to 11 municipalities in western Massachusetts, including several in Berkshire County. He said municipal Boards of Health enforce health laws and regulations, including the state sanitary code, and they conduct inspections in connection with such enforcement.
“They are not authorized to enact by-laws or executive orders restricting any speech, nor do Boards of Health manage town property,” Pollard explained.
Clearly, the town has the authority to regulate commercial speech on town property. But Sawyer acknowledged that candidates for office handing out flyers or shaking hands at the transfer station would run afoul of the regulation.
Another attorney contacted by The Edge agreed with Pollard that the new regulation raises free-speech issues.
“It looks as if the transfer station meets the definition of a ‘public square’ in First Amendment cases,” said Stephen L. Cohen, an Egremont resident who specializes in complex civil and criminal litigation. “It is clearly a violation of free speech rights in a public place.”
Cohen added that if it were proved that the banning of speech was directed at a particular individual, then he or she would have a personal claim for damages.
West Stockbridge resident Jon Piasecki told The Edge it is quite common for candidates or others seeking the attention of voters to come to the transfer station, adding that, “It is part of the character of our town.”
“The people of the town own the transfer station together. Who can stop us from communicating about town politics on property we own collectively?” Piasecki asked rhetorically.
“Are the police going to be called if someone tries to get a petition signed to bring back the Zucchini Festival?” he continued. “Do we risk jail time trying to inform residents about important school district votes? What the hell? Who does it harm?”
In an interview, Moffatt denied emphatically that he is targeting any one individual, though he was critical of Squailia’s suggestion that he was acting out of malice or attempting to stifle debate in advance of the May 8 town elections, when Moffatt is up for re-election for both the Board of Health and Board of Selectmen.
“It’s town property,” Moffatt explained. “There shouldn’t be that kind of activity going on. There are plenty of other venues available.”
Moffatt added that, “People have complained of being accosted by roofers and people hawking replacement windows and aluminum siding.”
What will happen to offenders? Is there a fine? “They will be advised of the policy and asked to leave or discontinue,” Moffatt replied. “There is no fine … It’s up to the discretion of the attendant.”
Moffatt also pointed out that the policy is actually nothing new. The health board originally adopted it in 1993. And the most recent action of the health board essentially restates it.
“There were complaints then too,” said Moffatt, who has been on the health board for more than 30 years and on the Board of Selectmen since 2009. “But they fell by the wayside.”
Moffatt is also a former town highway superintendent and, with his wife Jackie owns Baldwin Extracts, a manufacturer of vanilla extract and table syrup in West Stockbridge. He is also the great-great grandson of Henry M. Baldwin, who founded the Baldwin’s hardware store in 1888.
But Squailia, who has lived in West Stockbridge for 16 years and teaches yoga and meditation, is energized. He says the Board of Health has “overreached its authority” and he wants to restore integrity to the way the town is governed — not only in the case of the health board but the Water & Sewer Commission, which he accuses of “lining its coffers” with “forced” sewer hook-ups to 90 residents of the Mill Pond Mobile Home Park.
Squailia said he looks forward to a nonpartisan nominating forum tonight, Monday, March 27, at 7 p.m. at Town Hall, at which “a very active neighbors group will motivate citizens to become more active. We want to urge citizens to nominate candidates for these offices.”
Asked Sunday whether he intends to run for office himself, Squailia replied, “We’ll see Monday night. I don’t plan to nominate myself. I do know we will put forth a slate of candidates.”