Prof. Gates' Unconstitutional Arrest

[girl gone mad]

Prof. Gates' Unconstitutional Arrest
There's a First Amendment right to be rude to a cop.
Harvey A. Silverglate, http://www.forbes.com/2009/07/28/gates-crowley-arrest-first-amendment-free-speech-harvard-opinions-contributors-harvey-a-silverglate.html">Forbes

The now-infamous Gates story has gone through the familiar media spin-cycle: incident, reaction, response, so on and so forth. Drowned out of this echo chamber has been an all-too-important (and legally controlling) aspect: the imbroglio between Harvard Professor Henry Louis Gates, Jr., and Cambridge Police Sgt. James Crowley has more to do with the limits (or breadth) of the First Amendment than with race and social class.

The issue is not how nasty the discourse between the two might have been, but whether what Professor Gates said--assuming, for argument's sake, the officer's version of events as fact--could by any stretch of both law and imagination constitute a ground for arrest for "disorderly conduct" (the charge leveled) or any other crime. Whether those same words could be censored on a college campus is a somewhat different--though related--question.

(snip)

Some of the media commentary is quite remarkable, replete with claims that Crowley had a right to arrest Gates because the professor was loud and offensive. Yet what has happened to the notion that under the First Amendment, loudness is OK as long as one is not waking up neighbors in the middle of the night (known as "disturbing the peace"), and offensiveness is fully protected as long as it stops short of what the Supreme Court has dubbed "fighting words"?

This gets us to the heart of the matter. Under well-established First Amendment jurisprudence, what Gates said to Crowley--even assuming the worst--is fully constitutionally protected. After all, even "offensive" speech is covered by the First Amendment's very broad umbrella. Think about it: We wouldn't even need a First Amendment if everyone restricted himself or herself to soothing platitudes. I've been doing First Amendment law for a long time and I've never had to represent someone for praising a police officer or other public official. It is those who burn the flag, not those who wave it, who need protection.

(snip)

Today, the law recognizes only four exceptions to the First Amendment's protection for free speech: (1) speech posing the "clear and present danger" of imminent violence or lawless action posited by Holmes, (2) disclosures threatening "national security," (3) "obscenity" and (4) so-called "fighting words" that would provoke a reasonable person to an imminent, violent response.

Supporters of Sgt. Crowley's power and right to arrest Professor Gates--assuming the worst version of what Gates spewed at the officer--rely on the "fighting words" doctrine. But there is a problem with such reliance: The Supreme Court's affirming of a conviction for disturbing the peace based upon "fighting words" directed to a police officer has never been replicated since the original 1942 fighting words doctrine was announced in Chaplinsky v. New Hampshire.

http://www.forbes.com/2009/07/28/gates-crowley-arrest-first-amendment-free-speech-harvard-opinions-contributors-harvey-a-silverglate.html">read the entire piece


(I really had to butcher this to comply with the rules. The author makes several other important points)

[FiveGoodMen]

1. K&R

[Davis_X_Machina]

2. Duran v. City of Douglas, US 9th Circuit, 1990 (904 F.2d 1372, 378)

....is right on point -- involves an arrest for giving a cop the finger and cussing him out. The arrest was thrown out.

[bsd13]

3. Incredible

If people can't get Crowley on race they're bound and determined to get him on some other bogus, trumped up charge. In this case they're going to turn it into 1st amendment issue? Seriously? For the life of me I don't see it. I honestly don't. It's even more ludicrous than the race charges, which by the way I'm convinced would have stuck in the court of public opinion had President Obama not made the mistake of making his opinion on the issue known.

The fact is that the disorderly conduct arrest rarely results in anything but a trip to the station to be processed, being released and then the charges dropped. It's a tool, a very necessary tool, that the police have at their disposal to use in order to gain control of a situation. Even a potential situation, as in this case. Crowley used a tool that was made available to him within the limits of the law, or perhaps in the limits of the law as he (and pretty much every other police officer in America) understands it. Regardless it wasn't about race, and it certainly wasn't about squashing a man's 1st amendment rights.

I'd love to see this go to trial. I think some people would be surprised at how broadly the powers of the police are interpreted in this situation.

[CTyankee]

4. Well, actually, I 'd like to see how a court deals with a charge that results in "a trip to the

station." You might find out something very different, who knows? Gaining control of a situation was not really the issue and you know it. It was gaining control of Gates. There is settled law on this issue so I'll leave it at that.

So nice of you to drop in for a comment here and there...

[Davis_X_Machina]

6. There is no 'contempt of cop' in the Massachetts General Laws.

And I'd like to see it go to trial, too

I want to see the city try and distinguish Commonwealth v. Lopiano, 60 Mass. App. Ct. 723, (2004) from the instant case.

It would be interesting.

So would be any attempt to distinguish the instant case from Commonwealth v. LePore, 40 Mass. App. Ct. 543 , 546 (1996): "To be disorderly, within the sense of the statute, the conduct must disturb through acts other than speech; neither a provocative nor a foul mouth transgresses the statute." (emphasis mine...)

[unblock]

7. so the police can basically arrest anyone at any time on a trumped-up charge and that's just peachy?

just because we all know the police does arrest someone knowing that there's no charge doesn't mean it's legal for them to do so.
just because we all tend to let them get away with it doesn't make it legal or right.

*IF* there is a situation that needs getting control of, there might be some justification for an arrest even though the charge might not be clear. however, it seems fairly clear that *THIS* was not such a situation.

the officer could have walked away and there was no problem. this was *NOT* a situation that *NEEDED* the police to *TAKE CONTROL* of.



do you support ANY limits on this sort of right of the police to arrest people without a charge that would stick?
could they drop by and arrest you every single day and release you every single evening?

[Seldona]

10. I'd love to see this go to trial as well, considering they dropped the charges.

I think it is safe to assume they would get their ass handed to them. Then comes the civil trial.

[Recursion]

12. "To gain control of a situation"

Unless there's physical danger to life or property, officers don't need to "gain control" of situations, particularly inside people's houses. Plenty of them think they do, though.

[Dr.Phool]

5. Did anybody hear that Michael Jackson died?

Give it a rest already.

[MichiganVote]

8. Amen to that.

[scarletwoman]

9. Excellent piece! Thank you for posting it.

The author hits the nail right on the head -- the real issue here is freedom of speech.

From the very first I saw this as an abuse of power on the part of the cop. If a citizen in his own home cannot express his opinion -- no matter how indelicately -- without being subject to arbitrary and capricious arrest, then we are living in a police state, and we are not free.

sw

[chelsea0011]

11. Crowley was pissed off at Gates, plain and simple

He has already determined that Gates was at and in his house and Gates, by Crowley's own account, wouldn't shut the F(*^ up. And then he arrested him. Gates wasn't disturbing anyone but Crowley. I'd love for some wise ass reporter to look into Crowly's arrest record for disorderly in one's owm home.

And this beer meeting is a pile of bullcrap.

[bemildred]

13. Maybe one ought to find out what the situation is before trying to "gain control of it".

The two dead cops in Oklahoma are a perfect example of that (no disrespect to them intended). So is Mr Gates arrest. When the default mode is "Bull in a china shop" (pun intended) you are going to get lots of needless "damage".