SWAMPSCOTT — Two LGBTQ+ rights activists are suing the State Police and the Department of Conservation and Recreation after being fined for counter-protesting an individual who said that the town government was “trying to make everyone gay” by flying a Pride flag.
The American Civil Liberties Union (ACLU) of Massachusetts and a Boston-based law firm Zalkind Duncan & Bernstein LLP have filed a free speech and civil rights lawsuit in Suffolk Superior Court on Wednesday against the State Police, the Department of Conservation and Recreation, and Massachusetts State Police Trooper Devon Surian on behalf of two LGBTQ+ rights protesters — Michael Picard, of South Windsor, Conn., and Heidi Olson, of Gloucester.
“Our right to protest – and to counter-protest – in public forums is essential, and clearly enshrined in both the U.S. Constitution and Massachusetts Declaration of Rights,” said Ruth Bourquin, senior and managing attorney at the ACLU of Massachusetts. “The DCR regulations – and (state police) enforcement of them against our clients – are blatantly inconsistent with free speech principles.”
The complaint states that Picard and Olson were peacefully counter-protesting in support of gay rights to a demonstration on Lynn Shore Drive Nov. 11, 2021, involving at least one person who had previously made statements in public and online that the LGBTQ+ rights activists perceived as homophobic.
The ACLU complaint states that a few days before Nov. 11, the organizer of the demonstrators called out to someone displaying the LGBTQ+ Pride Flag that they were “trying to make everybody gay” and to “make the kids gay” and to “take down the gay flag, faggot.” On a different day, she posted footage of herself saying that the schools were trying to turn boys into “girls, fags, gay” after taunting young boys at a school in Swampscott who did not want to talk to her.
This person was part of a group demonstrating near a sidewalk on public property that is managed by DCR, the suit alleges. The demonstrators displayed flags with messages supporting former President Trump, U.S. troops, and gun rights.
Picard’s and Olson’s counter-protest was completely peaceful and satirical, the lawsuit states, and consisted primarily of holding a sign saying “Let’s Make Everybody Gay.” They were also soliciting signatures for petitions in support of gay rights and advocating for a Pride Flag to be hung along other flags the demonstrators put on the seawall.
At times, Picard and Olson used bullhorns to ensure their voices could be heard but “not discernibly louder than the voices of the demonstrators.” At least one of the demonstrators used a bullhorn as well, including to amplify the sound of a siren directed at Picard and Olson, the complaint said.
At some point someone called the police on Picard and Olson, the suit alleges. Surian ordered Picard and Olson upon arrival to stop using bullhorns, forced them to leave DCR property, and then issued citations with $200 fines against them.
Surian also told one of the demonstrators that he knew Picard and Olson were engaging in conduct that was “inciting,” the complaint said.
The citations were based on DCR regulations defining “disorderly conduct” to include making “unnecessary noise offensive to the general public.” The complaint alleges this regulation is invalid both because it violates free speech and is unconstitutionally vague.
“The use of bullhorns and other amplified devices is often an essential means of exercising free speech rights, and the government cannot arbitrarily restrict or curtail the use of these devices, as the DCR regulations purport to allow,” said Naomi R. Shatz, partner at Zalkind Duncan & Bernstein.
The complaint also argues that DCR failed to provide an administrative hearing as required by its own regulations and that Massachusetts State Police failed to comply with the Massachusetts Public Records Law.
Alena Kuzub can be reached at [email protected].
