Pensacola, Florida
Thursday November 27th 2014

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Viewpoint—The Chilling Effect

The Chilling Effect
By J. Alistair McKenzie

Americans rightfully fear government dictating what speech is appropriate. In fact, it was this well-founded fear that gave us what we hold so dear, our First Amendment.

As former U.S. Supreme Court Justice Hugo Black stated: “Our First Amendment was a bold effort…to establish a country with no legal restrictions of any kind upon the subjects people could investigate, discuss and deny. The Framers knew… [free speech] is always the deadliest enemy of tyranny.  [They] believed that the ultimate happiness and security of a nation lies in its ability to explore, to change, to grow and ceaselessly to adapt itself to new knowledge born of inquiry free from any kind of governmental control over the mind and spirit of man.”

It is with the fundamental importance of our First Amendment in mind that I was struck by the recent commentary by the city attorney (Independent News, “Right to Speak,” Feb. 16). In effect, the column criticizes the language that citizens of Pensacola have used to address council members, though the comments were misstated and taken out-of-context. This raises two serious concerns.

First, the pejorative commentary about the content of citizen speech is coming from the government. The city attorney is, with regard to legal matters, a government mouthpiece. For the city to criticize its citizens who have exercised their rights is outrageous.

Such an action “chills speech”—which the Supreme Court of the United States has found unconstitutional. This chilling effect is dangerous because when the government criticizes speakers, it “chills” the rights of citizens who would exercise their rights, but now will not because of fear of government criticism or intimidation. This then prevents citizens from further engagement in the political process. That is why it is both outrageous and dangerous to allow government to criticize any citizen’s speech.

Second, the article implies citizens should consider themselves lucky for being given the opportunity to speak because it is not constitutionally guaranteed and as a result, according to the government’s viewpoint, citizens should be more “appropriate” when they do.

The problem is that, legally, once a government opens a forum for public speech, as City Council has, it falls under the rubric of public forum analysis. In simple terms, this means that once the forum is created, citizens have constitutional rights and the city cannot dictate what speech is appropriate based on the content or viewpoint of a particular speaker. It can only regulate a reasonable time, place, and manner.

Our local government would do well to remember this and to remember they are public figures, which means they are open to criticism of any and all kind, no matter how absurd. They should have faith that the marketplace of ideas will do its job in keeping the good ideas while dispensing with the bad.

“First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”  – Justice Anthony Kennedy

J. Alistair McKenzie is a civil justice attorney that lives in Pensacola.