If we are to have a free society, we must have freedom of speech. Without the latter, there is no former.

That said, we do not envy the position Common Council President Andrea Shaut has found herself — on the receiving end of a lawsuit in federal court claiming she violated the First Amendment rights last summer of a number of protestors. These protestors were expressing their disapproval of the city and the Town of Ulster collaborating to replace the dilapidated armored vehicle used by the joint KPD-UPD emergency response — “SWAT” for short — team.

(Disclosure time: Kingston Wire Editor Dan Barton went to college with and is a personal friend of plaintiffs’ attorney Stephen Bergstein, of New Paltz.)

According to our story last week, the suit alleges that rules banning signs from Council Chambers set by Shaut prior to a meeting last August, where aldermen were set to vote on the “police tank” measure, were unconstitutional. “[Protestors] were met outside by a contingent of city police led by KPD Chief Egidio Tinti, who informed them that they would not be allowed to enter the building unless they left the signs outside,” we reported at the time.

Shaut later explained that she had imposed the sign ban after City Clerk Elisa Tinti, the chief’s wife, pointed to a section of the state’s Open Meetings Law dealing with signs mounted on sticks — which could be used as weapons — or that could block the public’s view of the proceedings.

Based on her interpretation of the law, said Shaut, she was required to institute the sign ban. “The ban was still in effect on Aug. 10 when the activists returned to City Hall to protest a committee vote on a proposal to install a network of surveillance cameras to cover crime hotspots. They were again met by a police contingent and again informed that they could not enter the building with the signs.”

Following a sharp written rebuke from the ACLU and after talking it over with city attorneys, Shaut later lifted the blanket ban, modifying it so only signs with sticks or profane language are forbidden. But the two instances of banning signs are actionable in and of themselves, said Bergstein. The suit also claims the ban was put into place specifically before a meeting where a controversial topic was to be discussed and demonstrators expected to attend.

“This didn’t come out of the blue,” Bergstein told Kingston Wire. “They knew everybody was coming about the [police] tank.” The suit seeks, besides an end to the sign ban, monetary damages and attorney’s fees.

In the end, a federal judge or judges (or Supreme Court justices, should it get to that) will make the call on this lawsuit. But the Editorial Team, none of whom went to law school, but all of whom have been interested in free-speech issues for pretty much all their lives, would rule yes — the free speech rights of those demonstrators who couldn’t take signs into Council Chambers on those two instances were abridged.

But was that abridgement justified? Common Council meetings are usually quiet affairs. But with the emergence in Kingston of an organized and energetic Rise Up Kingston and Wednesday Walk for Black Lives making themselves seen on the streets and in City Hall, they’ve livened up quite a bit, to a point that some people reportedly feel threatened.

Is vocal, urgent, even loud protest bad? No, we don’t think so — certainly, the deliberations that produced the Declaration of Independence and the Constitution got heated at times. Democracy can get emotional, especially these days around the hot-button topics of racism and policing.

It’s worth noting that the police themselves, outfitted in body armor and carrying their weapons in a hall of legislature, made a pretty loud statement before Chief Tinti said a word.

There is a line, though, right? After all, you can’t yell “Fire!” in a crowded theater, right, so you can’t say absolutely anything at a Common Council meeting, right?

Consult your attorney about the latter question, but yes, we believe there is a line. But we see it as more a question of etiquette than legal code. In this time of stress and anger about so much, some speakers at those meetings — and at an increasing number of similar meetings across the country — got shouted at, if not shouted down.

Is that rude? Yes. Is rudeness against the law? Maybe in some cases it should be, considering the way some people carry on, but it is not. Does the threat of future rudeness justify the Common Council adopting their new strict code of conduct?

As far as aldermen are concerned, the answer to that is “hell yes” — there’s now a strict three-minute limit (those are far easier to impose than enforce), as well as language prohibiting outbursts or other disruptions during proceedings, and barring statements that “defame, intimidate, make personal affronts, make threats of violence, or use profanity.” Further, a sergeant-at-arms, intended to be a KPD officer or the like, will be at all council meetings and will, if directed to do so by the council president, eject rulebreakers from the room.

We are often reminded by public officials on their last nerve after long and loud public speaking portions of meetings that state Open Meetings Law doesn’t establish that any board has to have a public speaking portion. So behave, or we’ll delete it from the agenda, we are often told, at least implicitly. (See above about the raucousness of the Founders.)

We accept the ban on sticks and other weapons, actual or potential, in Council Chambers. But we can foresee a time when a future council, made up of far less reasonable people than we have on it now, might rule that reporters’ or anybody’s tripods, cameras and/or recording devices may be used as weapons, so they have to go. However, we think it’s more probable, if not all that probable, that an angry council meeting could result in a fight breaking out. After countless public Covid-restriction-related meltdowns — oh, and Jan. 6 too — all bets are off in terms of people being able to control themselves in public.

As for the parts about decorum, ejection and the sergeant-at-arms, we’re not so sure. Again, these rules could be twisted to silence dissent, therefore we are wary of them existing in the first place. Taken as a whole, we think the new rules impose an unwelcome chilling effect on free speech and we hope the most latitude humanly possible is given to members of a free society addressing their government.

Ironic, is it not, that as the Common Council prepares to defend itself against freedom-of-speech litigation, it’s adopted a framework that makes future freedom-of-speech violations — and the lawsuits which follow — much more likely.