Back in June
we reported on a new Middleborough bylaw which changed the enforcement of existing bylaws, including one that banned profanity. On October 9, the
Attorney General upheld the new bylaw, but chose to comment on the older bylaws, which were not up for review. She said:
"The seven underlying by-laws – including the public profanity by-law – are not before us. However, specific portions or potential applications of the public profanity by-law and two of the other seven – approved many decades ago by prior Attorneys General – now violate the First Amendment’s free-speech guarantees. They should be repealed or amended..."
...
"The seven by-laws referenced in Article 24 were previously adopted at Town Meeting and approved by the Attorney General, in certain cases over 80 years ago. There is no statutory authority for the Attorney General to act on these previously approved by-laws after the 90-day time period of G.L. c. 40, § 32 has elapsed. Concord v. Attorney General, 336 Mass. at 26... Nonetheless, because of the law’s development since the adoption of the by-laws, we offer the following strong cautions regarding the use of Article 24 to enforce certain unconstitutional provisions or applications of three of the by-laws. We also urge the Town to consult with Town Counsel regarding a repeal of the unconstitutional provisions in the by-laws, and amendment of the provisions which risk an unconstitutional application."
