Which words are illegal to say in Massachusetts? The short answer is none.

Well, sort of. There is no list of banned words that you cannot say.

You can face charges if you let loose with a volley of offensive terms aimed at someone during the commission of a hate crime or if your words are determined to be hate speech.

To say or write an offensive word is protected free speech.

I read a lot of U.S. history. The “N-word,” perhaps the most offensive word in American English, appears periodically, most often attributed to someone as part of a quotation. In that context, the presentation of the word is not hate speech.

Directing the word at an individual or group of people could be problematic.

The Massachusetts Executive Office of the Trial Courts Law Library states, “A hate crime is a crime that is motivated by bigotry.”

The Commonwealth further explains, “Hate speech is defined by Black’s Law Dictionary (10th ed., 2014) as: ‘Speech that carries no meaning other than the expression of hatred for some group, such as a particular race, esp. in circumstances in which the communication is likely to provoke violence.”

The Massachusetts Executive Office of the Trial Courts Law Library says, “There is no ‘hate speech’ exception to the First Amendment in the U.S. Constitution.” Nevertheless, the Commonwealth says, “The right to free speech is not absolute.”

The U.S. Supreme Court has ruled that certain types of speech are not protected by the Constitution, including “the lewd and obscene, the profane, the libelous, the insulting or ‘fighting words,’ – those by which their very utterance inflict injury or tend to incite an immediate breach of the peace.”

However, NBC News reported in May 2021, “The U.S. Supreme Court won’t decide if use of the N-word amounts to illegal discrimination.”

Chapter 272, Section 36A of Massachusetts State Law states, “Whoever, having arrived at the age of sixteen years, directs any profane, obscene or impure language or slanderous statement at a participant or official in a sporting event, shall be punished by a fine of not more than fifty dollars.”

Georgetown University’s Free Speech Project says the Massachusetts Legislature rejected proposed legislation in 2019 to “prohibit the word ‘bitch’ to ‘accost, annoy, degrade or demean the other person.” The Free Speech Project says legal experts found the proposal to be unconstitutional.

Are you confused yet?

BOSTON – This fall, Massachusetts voters will face the largest crop of statewide ballot questions in years, many of them involving complex issues.

Evan Horowitz, executive director of the Center for State Policy Analysis at Tufts University, has done a deep dive into the details of the questions, and he joined Keller @ Large to offer a primer.

Massachusetts Ballot Question 1

On Question 1, expanding the state auditor’s authority to audit the legislature, Horowitz said passage “probably will not empower the auditor to oversee the things people care about in the legislature, their votes, their committee assignments. She’s not going to have that authority. The courts probably won’t give it to her, and the legislature will fight back. So I think a yes vote is not a vote for this power. A yes vote is a vote for gridlock.”

Should MCAS be graduation requirement?

A “yes” vote on Question 2, would wipe out the lone statewide graduation requirement in Massachusetts that students pass the MCAS test by 10th grade. Students would still take the MCAS, but each district would set its own standards for graduation. 

“This really is a question for voters about who should have the authority to dictate who can graduate from high school. Should it be districts? Or should the state play a role and say we have to sign off because we have over 300 districts in the state, [and] if they each have their own standards, that’s no standard,” Horowitz said.

“There are good arguments, I think, on both sides. The teachers union, which is backing the question, says this will give more freedom to teachers will be able to tailor their coursework for the students who need it. The business groups who are really on the no side, they’re saying we don’t want to become a state with a fractured education system,” Horowitz  added. “We want to set high standards across the state. If you vote yes on this, you’re undermining that effort. Certainly MCAS has been a part of the ed reform that’s been nationally acclaimed and we do have some of the best schools in the country. Lots of people credit MCAS for at least part of that success. It is also true, though that most states have common standards, but usually not a test, usually a set of curricula or a set of coursework that seems have to compete. So we are kind of an outlier and really relying on a test to set the common standard from state.”

Sector-based bargaining

Question 3 would allow something called sector-based bargaining here, in which rideshare drivers using platforms like Lyft and Uber could negotiate together for better pay and benefits that would then apply across the industry. 

“Drivers cannot form unions in the traditional way, because they’re not considered employees, they’re considered independent contractors,” Horowitz said. 

The ballot question would order the state to “set up a whole set of regulations.” 

“Let’s allow the sector based system where we’ll have drivers negotiate with all the companies at once and set rules for the whole industry,” Horowitz said. “The big issue will be business interests won’t like it. If it passes here again, you’re likely to see significant challenges, not just from rideshare companies, but from maybe the Chamber of Commerce, national business interests, because this would be a first in the nation effort to set up a system like this, and it could expand to other states and other industries.”

Will Massachusetts legalize psychedelic drugs?

A yes vote on Question 4 would legalize and regulate the use of some psychedelic drugs for both licensed mental health professionals and private parties who want to grow their own,

Horowitz says that would create “a new class of people, facilitators, to oversee the usage, which will be separate from the medical system. And it has to be separate from the medical system, because these drugs are illegal federally. They will remain illegal federally. So there will be no insurance coverage. There’s always the chance of a federal crackdown. I do want to be clear the drugs we’re talking about…can have very serious cardiac and neurological effects. It’s not a kind of casual set of drugs.”

Minimum wage for tipped workers

And Question 5 would phase out the current minimum wage that tipped workers, like waiters and bartenders, get, and require employers instead to pay those workers the full minimum wage. 

“If you’re a tipped worker, you’re working in a restaurant, you are already entitled to the full minimum wage,” Horowitz said. “You are getting $15 an hour, it’s just a question of who pays it. Right now, the employers can pay as little as 675, so long as you make the other $8.25 in tips. So the tips are going toward the minimum wage, and if you don’t get enough in tips, the employer has to cover it. Our research suggests that in other places that have these laws that require employers to cover, tipped workers tend to make a little bit more. But then there are additional stresses on restaurants and other businesses, which they intend to have to address with higher prices and service fees.”