Guest Column — Kelly: Chilling free speech is not cool



My name is Meghan Kelly. I am an attorney running for the House of Representatives in the 38th District’s Tuesday, Nov. 6, 2018, election.

As I candidate for a state position, I have witnessed people in positions of authority misuse their authority to unconstitutionally chill the freedom of political speech. This is no small matter. An attorney can sue people to correct such chilling of 1st Amendment rights, but what will that do? They can take all of their possessions and money. None of that — not all the money in the world — is worth as much as the freedoms we have here in our nation.

Men fought wars for the freedoms we all hold dear. Mere money cannot buy their lives back. Men did not die for money. The American dream is not about finding a job, buying a home, providing for and raising a family. People all over the world aspire for that.

The American dream is much more than merely making money, providing for your family and surviving. What makes the United States of America the dream of so many is Americans’ universal respect of other people’s freedoms when they step foot on our land.

What makes America great is the people. What makes America great is Americans’ universal respect for the freedoms of speech, assembly, religion and association, regardless of race, religion or place of origin.

When people in positions of authority choose not to behave like Americans by respecting the rights of others (emphasis intended), that is when America becomes less great. And yet, I have hope and faith that the people will courageously and kindly confront such behavior with correction, not with more bad behavior.

I am writing about one instance where my freedom of speech was quashed. I attended a celebration for a town. When I arrived beforehand, someone working the event said they knew who I was and talked politics, demeaning my party. I attempted to respond to the discussions, but the mayor and other agents of the Town requested that I didn’t.

I told the mayor his request was unconstitutional, but I complied. I was instructed by those with the blanket of authority not to discuss politics at the party. They mentioned the other candidate could not attend.

A couple hours later, I attended the Town’s party at the town hall — open to the public, thereby creating a limited public forum. Solicitors of various groups sat with pamphlets, including a church, at the celebration. I did not ask for a table or a place to sit with those handing out materials. I merely desired to respond to political statements and questions.

Yet, I complied with the mayor’s request, making it clear that such request was not constitutional.

The mayor’s position of authority made his personal requests to refrain from exercising American freedoms more dangerous than a normal citizen.

We all have limits to our freedom of speech, but people in government, and those with authority, have even more limits in exchange for such power, to preserve the freedoms of those they serve. Otherwise, unconstitutional government restraints may inhibit the freedoms of those they serve, by causing fear of persecution.

The constitutional rights and standards differ relating to the type of forum where the speech is limited. Is it a private forum, public or limited public forum? Municipalities may use their police power to draft reasonable regulations for the public safety relating to private property. However, private property that is opened up to the public is converted to a limited public forum, where content based speech is not easily limited.

In 1980, the U.S. Supreme Court held that a large shopping store could not limit the freedom of speech, regardless of how disagreeable the speech was to the owner of the grocery store, under the facts of that case. In that case, a private forum was opened up to the public during certain hours, just like many stores are opened to the public. Thus it became a limited public forum where speech is under greater protection than a private forum.

My speech was quashed on public property, opened up to the public for a public event.

The constitutional standards differ not only with regards to the forum, where the freedom of speech may have been infringed upon, but it also differs concerning whether it was restrained by conduct-based restrictions or content-based restrictions.

Conduct-based speech may be limited in a limited public forum by time, place and manner restrictions under a relatively easier standard than the content-based restrictions. Content-neutral restrictions must advance important interests unrelated to the suppression of speech, and must not burden substantially more speech than necessary to further those interests.

In 2010, our Third Circuit ruled it was unconstitutional for a mall to discriminate against noncommercial speech in favor of commercial speech, as this was content-based not content-neutral speech.

Content-based restrictions are presumptively unconstitutional. The government must prove such restriction is necessary to serve a compelling state interest, and is narrowly drawn to achieve that end. Mere open debate concerning political speech does not meet that standard. The freedom to speak freely about politics and other important issues, such as religion, without persecution of the government, is why many people desire to come to America.

There are limits to our freedom of speech, such as false advertising, defamation and obscenity.

The fact Americans must respect (to an extent) the freedoms of others, and in turn others (even mayors), must do the same by honoring such limits makes us all more free.

I keep thinking to myself, men died for this freedom. No amount of money or power is as precious as those men’s lives, and the freedoms they bravely fought for. If men are willing to die and kill for this, I should have the courage to confront and correct people in authority so as to honor those men, and to remind the world that they mattered, and to protect what they fought for, not money, but freedom. You can’t buy that. It is priceless.

Thank you for honoring our brave by honoring the freedoms they fought for, including the freedom of speech.

By Meghan Kelly, Candidate

Delaware House of Representatives,  38th District