Arresting Wilmington man for speaking out went too far, First Amendment experts say
Criminal charges that Wilmington City Council President Hanifa Shabazz is pressing against a city resident after he yelled amid council meeting disputes are likely a violation of the man's constitutional free speech rights, a First Amendment expert said.
"When you send police to arrest the guy in these circumstances, I would be very worried about getting up and expressing myself angrily" during a city council meeting, said Gregory Magarian, a law professor at Washington University in St. Louis.
"The allowance of public comments in a city council meeting is where free speech is most obviously important," he said. "This is not rocket science. This is really simple First Amendment stuff."
Dion Wilson, a frequent attendee of Wilmington city council meetings, was arrested at his Midtown Brandywine home last week after Shabazz filed a police report against him.
He was charged with harassment and disorderly conduct, both misdemeanors.
Wilson, and others including John Flaherty of the Delaware Coalition for Open Government, said Shabazz overstepped her authority by pressing charges. They say she is silencing Wilson's frequent criticism of city government.
The Delaware Department of Justice last week said it had not yet reviewed the charges against Wilson. Prosecutors will decide whether to pursue the charges before Wilson is arraigned in December.
Until then, the city resident is banned from city council meetings and from being in contact with Shabazz.
Wilson is accused of disrupting two meetings, one in September 2018 and one last month, by yelling after Shabazz prevented him from speaking during the public comment portion.
After storming out, he continued yelling in the city hall lobby and made statements Shabazz said caused her to fear for her safety.
SHABAZZ RESPONDS: Shabazz says threats prompted her to press charges after meeting clashes
"There were verbal threats of physical harm done to me," she said, explaining her decision to file the police complaint.
Wilson is accused of yelling, in separate incidents, "If she were a man I would have punched her the f--- out" and "You better get your girl" in the lobby. He told The News Journal he simply had an angry outburst after Shabazz prevented him from making public comments and that he is not a violent person.
Lata Nott, executive director of the First Amendment Center at the Freedom Forum Institute in Washington, D.C., said whether someone's comments are "true threats," which courts have ruled are not protected by the First Amendment, depends heavily on context.
"It's possible a reasonable person would view it as a true threat," Nott said, but there are other factors, including whether Wilson's angry comments count as political statements, which are generally the most protected under free speech law.
Magarian, the law professor, said Wilson's comments in the council lobby were not specific enough to qualify as threats.
He said Shabazz was also restricting free speech by prohibiting Wilson from making public comments during the Sept. 19 city council meeting based on his past use of profanities.
Such an act qualifies as a "prior restraint" on free speech, Magarian said, which the Supreme Court has ruled is "just about the number one First Amendment no-no."
"Council is allowed to enforce certain rules of decorum," he said. "But this is people talking to the government. Of all the places where the government can't and shouldn't enforce over-persnickety overly cautious limits on speech, this is right at the top of the list."
Nott said government rules about decorum and profanity use must still allow for political criticism.
"Where it gets tricky is sometimes criticism is wrapped in profanity," she said.
Free speech advocates argue that "if it's a tie, when you're not sure whether something is political speech or just an ad hominem attack, generally you go toward protecting more speech than punishing it," she said.
Asked last week if she believed it was an overreaction to have Wilson banned from speaking in public meetings, Shabazz said Wilson brought it upon himself.
"I did not control what the gentleman did," she said. "He had the freedom to come in here and conduct himself based on the rules and laws of conduct in this chamber."
Jeanne Kuang covers Wilmington for The News Journal. Contact her at firstname.lastname@example.org or (302) 324-2476. Follow her on Twitter at @JeanneKuang.