Free speech dust-up in Southborough

Town demands the name of an anonymous blog commenter

UPDATE: In the story below, I incorrectly wrote the Southborough Board of Selectmen sent a third letter to Susan Fitzgerald demanding she reveal the identity of one of the posters on her blog. At their meeting last week, the selectmen discussed pursuing legal action since their initial demands last fall were denied but have not sent Fitzgerald any other demand letters since October. Also, Fitzgerald says she has removed some comments from the blog by the poster known as “Marty” only because they contained unsubstantiated allegations.

Susan Fitzgerald says she’s a “reluctant crusader.” Reluctant or not, the Southborough mother is at the center of the latest First Amendment battle pitting the rights of town officials who claim they are being defamed by anonymous Internet posters on Fitzgerald’s blog versus defenders of free speech.

Last fall, Southborough selectmen ordered town counsel to send letters to Fitzgerald (photo at right) demanding she turn over the identity of a poster who goes by the moniker “Marty,” who selectmen say crossed the line in accusing them of violating the state’s Open Meeting Laws during a search for a new police chief.

Three letters have been sent since last September, the latest last week, and Fitzgerald has refused to comply. She says nothing will change her mind.

“I offered the town the opportunity to use the blog to disseminate the correct information about the meetings. They declined that offer,” says Fitzgerald, who moderates but allows anonymous comments on her blog — like many others, including here at CommonWealth magazine. “I just don’t think it’s my place to reveal the commenter’s identity.”

Fitzgerald’s blog is a labor of love and one of the most unlikely battlegrounds for a First Amendment fight. Fitzgerald, born and raised in Southborough, started the blog in 2008 after returning to her hometown following college in New York and a stint as a high tech worker in Seattle.

Fitzgerald says that while some of the local papers had a few items about the town she loves, there was no repository of all things Southborough, so she launched her site that has as much boosterism as it does information. The 2,000 or so posts run the gamut of topics and include arts festival announcements, random pictures of a spring day, and town board meeting information.

“The controversial subjects that come up make me uncomfortable,” says Fitzgerald, whose previous journalistic experience was writing for her Algonquin High School and University of Rochester newspapers, plus some tech writing. “They’re not the parts of the work I enjoy. I love it when people send me emails saying how much they enjoy the blog. It makes me feel more connected to the town too. That’s what drives me.”

But last summer, Fitzgerald reported that a police chief search committee held an executive session and “Marty” questioned the legality of that, citing sections of state law. There were also some caustic comments on items about a search for a new police lieutenant.

The chief search committee “proved to be a really controversial project which I didn’t expect,” says Fitzgerald.

Salvatore Giorlandino, chairman of the board of selectmen and a lawyer who spent 12 years in the attorney general’s office, says the comments were unacceptable and ordered the town’s lawyer to ferret out the poster’s identity.

“We would ask and expect that you would furnish the contact information for ‘Marty’ and/or his attorney so that we may raise our concerns directly,” attorney Aldo Cipriano wrote to Fitzgerald last September.

Giorlandino, who is the chief presiding officer in the Office of Appeals for the Massachusetts Department of Environmental Protection, says Marty’s allegations are actionable and are not protected by the First Amendment.

“They are intended to spread misinformation, make personal attacks, not to focus on the issues,” Giorlandino said in a telephone interview. “This doesn’t have anything to do with free speech. It has to do with being decent and civilized and adding constructively to the debate.”

Giorlandino says that while public money is being spent on Cipriano’s legal work, selectmen are acting in their official capacity, not out of personal vendettas. Giorlandino cited a 1983 ruling by the Supreme Judicial Court that allowed the town of Brookline to enjoin a resident from harassing town officials as the basis for the current action.

But that case was based on a man named Melvin Goldstein who was accused of making harassing calls and visits to elected officials’ homes, flooding town offices with dozens of calls, and filing frivolous suits alleging violations of state and local laws.

“The allegations concerning Goldstein’s behavior, which he does not specifically deny, suggest that he has acted beyond all reasonable bounds,” then-Chief Justice Edward F. Hennessey wrote. “Town officials have a legitimate expectation of privacy and freedom from harassment.”

Marty’s comments in August, which appeared on several blog items regarding the search for a police chief, alleged that closed-door sessions violated the state’s Open Meeting laws.

“This entire Chief selection process has been a disaster,” Marty wrote. “First, the Acting Chief had to be an automatic finalist, then she didn’t. First the applicants had to live in Southborough or an adjoining town, next they did not. The Board of Selectmen has publicly told applicants this process was on the up and up and there was no-predetermined selection. This is one of the sorriest sagas I have ever witnessed.”

'This doesn’t have anything to do with free speech. It has to do with being decent and civilized.' Subsequent posts, some of which Fitzgerald said she took down because they crossed the boundaries of taste, made unflattering references to Giorlandino and Selectman Bonnie Phaneuf. Giorlandino said the attacks have had an impact on townspeople who put themselves on the line to volunteer.

“There is at least one member of that [search] committee who has told me she will never, ever get involved in civic matters that have to do with the town of Southborough ever again,” says Giorlandino. “Public service should not be an ordeal. We teach our children to be fair and civil. Do those rules change when they turn 21?”

Fitzgerald says she understands officials’ complaints but says Marty’s opinions and those who post similar comments are just that — opinions. She says she left nothing on the site from times when Marty crossed the line into bad taste, and she says the situation could have been resolved had officials taken up her offer to air their side of the story.

“This all seems like it could have been handled so easily without lawyers, with the town coming out and saying ‘The search committee didn’t violate the law and this is why,’” she says. “This whole thing would have gone away. It baffles me why they took this action.”

Giorlandino says he and his colleagues intend to see this through, but he said Fitzgerald shouldn’t feel threatened. He says there’s no intent to shut down mysouthborough.com.

“This is nothing personal with her or, vis a vis, her blog,” he says. “She provides a valuable service, I applaud her. It is fabulous. I don’t think there is any danger of that happening. No one has said anything of shutting her down.”

Fitzgerald, who has no lawyer but is leaning on the advice of her father, who is an attorney, says she has not thought about what would happen to her blog if the action is not stopped. She says she has no intention of changing her mind about revealing the identities of her commenters, but she doesn’t view herself in the same ranks as those who have risked jail to protect the First Amendment.

“I’m just a mom who writes,” she says.

Jack Sullivan is the senior investigative reporter for CommonWealth magazine. He can be reached at jsullivan@commonwealth.org or 617-224-1623.