Mouthing off to a cop really is constitutionally protected

Harvey Silverglate is a First Amendment scholar and free speech advocate who even conservatives can love; he co-founded the Foundation for Individual Rights in Education which, among other duties, defends free-speech against college speech codes, and he frequently criticizes political correctness. He's also a neighbor of Henry Louis Gates, Jr., who thinks Gates's charges of racism in his treatment by Cambridge police are ill-founded. Nevertheless, he considers Gates's arrest a constitutional violation and an abuse of police authority.

I'm happy to say that Silverglate's take is a more sophisticated version of the conclusion I reached last week. Then, I wrote:

Having determined that the man forcing the door was legally authorized to be in the house and to jimmy any stuck lock in the place if he so desired, police were free to leave to escape any unpleasant accusation directed at them by Gates. Even if the man had truly slipped into full-on loud-and-defensive mode, so what? It's his house, and so long as he doesn't get violent, he can speak any words, in any tone, that he pleases.

If you don't like it, leave.

But that's not the inclination of modern police officers, who all too often act as if the worst crime of all is to fail to defer to a badge.

And again:

It doesn't matter how confrontational, loud or tumultous Gates was. He had already demonstrated that he was in his own home. Having determined that no crime had been committed, police were free to leave -- unless their egos got in the way.

Gates's claim that racism was at work can't be proven or disproven unless officers confess to bigotry. But it's likely that Gates was arrested for "contempt of cop" -- an unspoken, unofficial crime that has ensnared thousands of Americans at one time or another, no matter their color.

Sergeant James Crowley's arrest of Gates on a "disorderly conduct" charge based on the professor's use of charges language against the police officer in his home and on the porch was rooted in the "fighting words" exception to First Amendment protection. Unfortunately for police officers, that exception doesn't mean what they often think it means -- in fact, it may mean nothing at all. That could explain why the charge was so quickly dropped after the arrest. In Forbes, Silverglate puts it thusly:

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.

....

[T]o the extent that tossing an expletive at some hothead on the street might conceivably produce a violent reaction, surely such words directed to a trained police officer should not be expected to incite such a response. To be sure, much of police training is specifically directed at producing a peace officer who knows how and when to keep a violent response wrapped under a highly polished discipline. It would be an insult to any law enforcement agent to assume that he or she would respond, with violence, to unpleasant--even offensive--words. Hence, even at its worst, Gates' reaction to the officer's presence and questioning cannot by any stretch be deemed grounds for an arrest. Professor Gates, in other words, was fully protected by the First Amendment. It was the officer's duty to restrain his own response, particularly the exercise of his official powers of arrest.

Indeed, the expansive nature of First Amendment rights, even in a confrontation with official power, was made vivid in the 1971 Supreme Court case, Cohen v. California. Paul Cohen was arrested in the Los Angeles County Courthouse for wearing a jacket emblazoned with the words "Fuck the Draft." He was convicted for "offensive conduct" because, the state court ruled, "offensive conduct" meant "behavior which had a tendency to provoke others to acts of violence." Even though no one actually threatened Cohen, said the state court, an attack was "reasonably foreseeable."

The Supreme Court reversed. The great conservative justice John Marshall Harlan wrote that "Fuck the Draft" was not "obscene" and that its offensiveness did not render it unprotected--even in the corridors of a courthouse!

Silverglate goes on to criticize police officers across the country -- and elsewhere -- for being "overly sensitive to insults from those they confront." And being police officers, they act out their sensitivity not by crying in their beer, but by using their extensive powers to punish people who direct verbal abuse or mere objections their way.

But the laws law-enforcement officers rely on for pressing "disorderly conduct" charges against people who verbally challenge and insult them have shaky foundations. One good First Amendment challenge, lodged, perhaps, by a prominent Harvard professor with an army of constitutional scholars on his side, could totally undermine the ability of the police to haul people away in handcuffs for what they say.

In fact, the legal basis for such a challenge is already well-founded, with plenty of free speech red meat siting in the casebooks. In 1990, Judge Alex Kosinski of the 9th Circuit Court of Appeals wrote in a case that is relevant to that of Gates:

Duran's conduct is not totally irrelevant, however, as it suggests a possible motive for his detention, one upon which law enforcement officers may not legitimately rely. The Durans contend, and the district court held, that Aguilar stopped their car at least partly in retaliation for the insult he received from Duran. If true, this would constitute a serious First Amendment violation. "[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." Hill, 482 U.S. at 461, 107 S.Ct. at 2509. The freedom of individuals to oppose or challenge police action verbally without thereby risking arrest is one important characteristic by which we distinguish ourselves from a police state. Id. at 462-63, 107 S.Ct. at 2510. Thus, while police, no less than anyone else, may resent having obscene words and gestures directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.

Duran ultimately won that case (in fact, the court of appeals upheld his earlier victory in the district court). In his own home, Gates would very likely have prevailed on the same grounds. So should we all -- when our free speech rights are fully respected and "contempt of cop" is no longer an unwritten crime.