Why Should Delaware Care?
The First Amendment protects the public’s rights to free speech and assembly, particularly in protesting perceived injustice by the government. The ability to use one of the key public meeting spaces in Delaware’s largest city was in question following its acquisition by a quasi-public entity, but new procedures will safeguard protesters’ rights.
New exemptions negotiated by the American Civil Liberties Union and the owner of Tubman-Garrett Park along Wilmington’s Riverfront will ensure that protesters will have access to a longtime meeting place for advocacy.
Those conversations began after Jeremy McDole Police Reform Now, a community organization that advocates for meaningful police accountability and transparency measures in the memory of a man killed by Wilmington police nearly a decade ago, planned to hold a small rally at the park near the South Market Street Bridge last summer.
Although the group only planned to gather there briefly on June 4, 2023, before marching through the city, organizers learned that the park was owned and managed by the Riverfront Development Corporation (RDC), a nonprofit created by the state government.
Since acquiring the land in 2018, the RDC has managed events at the popular 2-acre park through a permitting and fee process. While it typically hosts concerts, festivals and fundraisers, it has also been home to protests for police accountability and abortion rights, as well as political campaign events. The permits and fees for events at the park applied to demonstrations and protests, potentially leading to issues with First Amendment rights.
Lt. Gov. Bethany Hall-Long held her last major voter turnout event on the day before the Primary Election in September at Tubman-Garrett Park along with unionized labor members. | SPOTLIGHT DELAWARE PHOTO BY JACOB OWENS
Two days prior to the police reform protest, organizers received correspondence from the RDC that cited a failure to submit the required forms and deposit payments to host an event in the public park. The requirements amounted to several thousands of dollars in fees, as well as a 45-day advance notice.
After consulting with the RDC, those requirements were ultimately waived for the brief visit to the park, but it led the ACLU of Delaware to engage with the RDC on how to avoid future issues.
Dwayne Bensing, the legal director for ACLU of Delaware, credited RDC leaders with engaging in the discussion rather than forcing the issue to be litigated in courts, like some other First Amendment questions in Wilmington. They noted that requiring such a lengthy advance notice limits the community’s ability to organize quickly in response to current events, and the significant fees limit the participation of low-income people.
The Riverfront Development Corp., a quasi-public entity, now owns and manages the Tubman-Garrett Park, despite many believing that it is simply a public, city park. | SPOTLIGHT DELAWARE PHOTO BY JACOB OWENS
The new compromise allows anyone seeking to put on a protest at Tubman-Garrett Park to fill out an exemption request form, allowing for both waivers of the 45-day notice requirement and all fees associated with the park.
City and RDC permit requirements will remain in place for events numbering more than 100 participants, and applicants must either acquire event insurance or agree to be held responsible for damages to the park that may result from their event.
The executive director of the RDC, Megan McGlinchey, emphasized that her organization waived its requirements when it learned of the purpose of the Police Reform Now group. She added that they were not contacted about concerns regarding its permitting and fees for about 10 months afterward.
“While we have always had a practice of accommodating such speech, we did engage in a conversation with the ACLU and agreed to revisions of our policy to ensure that there was no confusion with respect to the right of members of the public to engage in free speech on our grounds. We look forward to a continued partnership with the public to ensure that First Amendment rights can be exercised and access to Tubman-Garrett Riverfront Park is provided,” she said.
One of the overarching questions in the episode is among the most basic: Now that the RDC owns the park, is it considered public land and therefore susceptible to Constitutional protections?
Ultimately, Bensing said the ACLU would argue that the land is public, because even though the RDC is a nonprofit, it is still governed by a majority of government officials.
“I think that the Tubman-Garrett Park was particularly compelling for us because of the rich history of that space being a public forum by the city. Anybody that’s visited the Riverfront certainly views that park as a public city park,” he said.
Wilmington has a history of drawing criticism for actions concerning protests and rallies, particularly around police accountability.
A concert and rally that was scheduled to be held at the city-owned Urban Artists Exchange venue this summer was moved out of Wilmington after city officials tried to dictate the tone and manner of the event. Organizers have reportedly engaged attorneys to review that episode and whether it violated their First Amendment rights.
Protesters connected to DE Actions 4 Palestine also fought a proposed ordinance this summer that sought to silence vocal protests that have targeted the homes of U.S. Sens. Chris Coons and Tom Carper. The measure was ultimately tabled.
In the last few years, the ACLU has frequently sued or negotiated the actions of the city or Wilmington Police Department, including protests in the wake of the police-related murder of George Floyd and the rights of advocates to assist the homeless.
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