A bedrock principle supporting our civil rights is a fair and consistent application of the law. If laws are applied differently depending who is affected, then we have no civil rights, but only a charade of them.
A small, but egregious, example has arisen in Tiverton this election cycle. The Tiverton Republican Town Committee (TRTC) planned a forum for all candidates in the town’s nonpartisan campaign for Town Council, to be held in a community room at the town library on Thursday, October 25. The library confirmed the reservation on October 2.
The Friday before the event, recently hired library director Catherine Damiani emailed Laura Rom, of the TRTC, as follows:
It is on the advice of the Town Administrator and Town Solicitor that Tiverton Public Library cannot provide a space for the Town Council Candidate Meet and Greet sponsored by the Tiverton Republican Town Committee on Thursday, October 25, 2018. The event’s partisan tone used in the publicly circulated flyer presents a possible conflict with the Tiverton Town Charter and the usage of town-owned property ( Section 1218). Should you have any questions, please contact the Town Administrator or Town Solicitor.
Section 1218 of Tiverton’s Home Rule Charter provides that “no officer or employee of the Town… shall use, or cause to be used, Town property, goods, money, grants, or labor to influence the outcome of an election, ballot question, or referendum.” In other words, according to Ms. Damiani, Town Administrator Jan Reitsma and Town Solicitor Anthony DeSisto were of the opinion that an advertisement for the event had made it partisan, which meant that the forum, even though it would be open to the public and to all candidates, would be using “town-owned property” to “influence the outcome of an election.” (Requests for the communications from the town administrator and solicitor were referred to the town’s Access to Public Records Act [APRA] process, which could take weeks and which the town may attempt to deny on the grounds that they are privileged communications regarding legal matters.)
This turn of events would be bad enough if it took place on untested legal ground, but there is actually recent legal precedent in the other direction.
During the 2016 campaign for Tiverton’s financial town referendum (FTR), at which voters could choose between competing budgets for the upcoming fiscal year, controversy arose over promotion of the town government’s preferred budget at the library. Multiple residents (including this writer) observed letters promoting Budget #1 available in the library’s main area and on display in a plastic stand in the children’s section. People were also observed holding yard signs in the children’s area promoting that budget, and a similar sign was placed by the entrance of the parking lot. On May 18, residents Donna Cook and Nancy Driggs filed a charter complaint alleging a violation of Section 1218.
On June 13, the Town Council sat in its capacity as the Charter Monitoring and Complaint Review Board and dismissed the complaint on the grounds that 1218 did not apply to the library. Minutes from the hearing show that the application of Section 1218 to the library was questioned based on whether library personnel are “officers or employees” of the town and whether private citizens use of the property is guaranteed by the First Amendment:
President [Denise] DeMedeiros questioned the Solicitor on whether a private citizen who is not under Town control can put a sign on Town property. Solicitor DeSisto cites a Supreme Court case from 1997 that said a public library is a public forum; are some First Amendment implications here, a private person uses that forum as free speech when it comes to an election. …
[Councilor Joan Chabot] opined… it was correct the Board of Trustees, the Library Director or any employee that works at the libraries are not officers or employees of the Town. Councilor Chabot believed it was very specific and agreed with it. The motion passed on a vote of 6-1, Councilor [Joseph] Sousa opposed.
Before getting to anything else Solicitor DeSisto suggested a motion to deny the complaint based upon the prior motion.
In other words, Solicitor DeSisto was prepared to advise the council that residents might have a right to use the library’s property for explicitly political free speech, but that this question didn’t even have to be answered because the council had found that nobody associated with the library is actually prevented from political advocacy on their “town-owned property” — at least not under Section 1218.
This same Solicitor DeSisto is apparently now advising the library that it must cancel an event on short notice because allowing that event to take place on its property would violate Section 1218.
Opposing political actors in the town frequently state that members of the Tiverton Taxpayers Association (TTA), including the complainants above, file too many legal actions, but the purpose of doing so is to establish the rules. Of course, that doesn’t work if the rules can change this dramatically on an issue as fundamental as First Amendment rights.