Thursday, July 30, 2009

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.

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Anonymous Beege said...

It really should be understood by all who seek a career in law enforcement that it is they who are held to a higher standard, not the public at large.

I recently visited the local police station here in New Haven, CT, on a matter of licensing (concealed carry pistol permit). Ignoring the fact that the state requires a permit or license for what is clearly stated in the Bill of Rights to be a right that "shall not be infringed", I must say that the demeanor of the sergeant behind the glass was absolutely rude, boorish, and disgraceful for someone who is supposed to be a servant of the public.

What happened to the civility in civil service?

July 30, 2009 11:57 PM  
Blogger Savage said...

I have to say I agree with this post, as well as with Beege. I have met many police officers who were courteous, polite, and extremely helpful. I've also met police officers who were just looking for someone to do something, anything, so that they would have an excuse to threaten/arrest/detain/search, etc. It's these ones who make a bad name for all police.
It's sad really, because the police are supposed to be there to protect the common man, but instead the common man is scared of retribution or mistreatment by those same police.

September 17, 2009 6:57 PM  
Blogger Dave said...

I agree, wholeheartedly, with beege. I have a 9mm S&W which I do not carry in public, because in Philadelphia I must attain a permit to carry a concealed weapon. However I was provoked on the subway on my way home from seeing Sheryl Crow perform in front of the Phila Art Museum on the 4th of July. There was me, by myself, on a subway car which was moderately full of other people (aka all the seats were taken, only a few people were standing) and a group of 12-14 young black punks (anywhere from ages 10 to 16) got on and started rough-housing; eventually they started (and honestly it was only one of them) attempting to push one of his 'friends' off the train car just before the doors would slam shut. After a while they got tired of it, and at the next stop, this kid pointed to me, suggesting I would be next (even though I was nowhere near the door). So there I was, alone in a train car full of other passengers, with my ipod, my digital camera, of course my wallet, and my hearing aids, since I'm nearly deaf thanks to ototoxic drugs given to me when i was hospitalized in 2001.

But my point is: why should I be required to carry a permit, since that is simply an infringement on my 2nd amendment rights?

September 24, 2009 5:44 PM  
Anonymous democracymmmk said...

I was once arrested and charged with resisting arrest. So what was I being arrested for in the first place? I had no other charge. Arrested only for resisting the very arrest I was about to be arrested for. I posted bail but I got to spend some time in in the tank with a bunch of drunks (I was sober). He sure showed me. I developed such a respect for the police force with that incident that I really did resist the next time I got a chance. Sure I felt like a real freedom fighter at the time but I highly recommend NOT adding assault on a "peace" officer to your rap sheet no matter how right you are.

September 25, 2009 2:04 AM  
Anonymous Anonymous said...

Wow, Dave; a young black kid actually pointed at you and you weren't allowed to carry your concealed weapon so you could turn it into an actual confrontation - this country sure is falling apart.

September 25, 2009 8:23 AM  
Anonymous Anonymous said...

When I was 19 years old I had an apartment in the City of Buffalo, New York. I would walk to work every morning at around 7:30am and there were two officers that always patrolled the streets at that time. The sexual harassment that I received from them every day didn't just make me feel uncomfortable and sub-human, but it also scared me and pushed me to a depression that nearly killed me. They would sometimes even follow me back to my apartment (if they were still out or if I worked a shorter shift) and ask me if that was where I lived. I was so scarred that I ended up quitting my job so that I wouldn't have to leave my apartment at that time of day. I thought about reporting them; however, in my experience with police in the area, reporting a problem with an officer only meant more harassment and a greater chance of being pulled over and ticketed for various (false) reasons (i.e., a back light being out when it clearly works just fine and passes inspection) - this is very common in this area (the suburbs included). It's sick that this sort of thing exits - the very people that are supposed to protect and serve only end up abusing their power. To this day I am extremely nervous around police officers, and I try to remind myself that not every officer is like that - some are good men and women. Unfortunately though, they seem to be very few and far between in these areas.

September 25, 2009 2:20 PM  
Anonymous Alan Johnson said...

Reading of the passion that some expressed on their constitutional right to insult and bully police officers. It reminds me of the photographs of the ugly Americans harassing the British soldiers standing guard at Buckingham Palace. It also makes realize that person so moved are cowards. This is their opportunity to insult people with out concern of the logical physical consequences of their act. None of you would walk up to the biker in the bar and be so tough, no, I expect that in their presence you would drop your gaze and slither off hoping that your presence has not be detected. Your justification is that officers are trained to take your abuse. But in reality you enjoy being a bully. Sad for you and sad for a society that allows its representative to be abused.

October 4, 2009 11:26 AM  
Blogger Tylor said...

Dave, how dare that young black kid point at you, I agree with anonymous#1, too bad you didn't have your gun so you could shoot him, or at least scare the piss out of him. All you need to do is read the facts, provided by the American Journal of Public Health, carrying a gun makes you 4.5 times as likely to be shot. It is time to make permits harder to obtain. Use NYC as an example. . .

"The application process throughout the state takes six to seven months to complete, and includes fingerprinting and an FBI background check. After that, there’s a four-hour class on firearm safety and an (open-book) written test. The city prohibits gun owners from buying more than one gun every three months. After buying five guns, the owner must purchase a safe. "

Hand gun related homicides in NYC have dropped by over 80% after the increased control. The vast majority of the related 20% are from guns bought out of state.

Ban the guns, stop the problem.

October 21, 2009 12:15 PM  
Blogger J.D. Tuccille said...


I'm from NYC, and the city has had very restrictive gun laws, particularly with regards to handguns, for about a century. Crime rates have gone up and down with little regard for occasional tweaks to the law. The "4.5 times" number is fatally flawed, based as it is on some odd assumptions, particularly with regards to the belief that the researchers really knew who was and wasn't carrying. The researchers also fail to allow for those choosing to carry guns to be subject to different levels of threat than those not choosing to carry. More here.

As for expectations that restrictive laws actually achieve their intended results, see here.

October 22, 2009 9:00 PM  
Blogger alex said...

hokay so the guy that compared a biker to a cop makes one of the dumbest statements I've ever heard, "None of you would walk up to the biker in the bar and be so tough" those men are also not exactly the most stable of individuals whereas a police office should be, and the biker doesn't get paid to "keep the peace". ultimately it is a responsible officer who responds rationally instead of getting bitchy and vindictive if someone uses harsh language.

October 26, 2009 6:31 PM  
Anonymous Bob said...

I would agree with you except for the fact that Gates left the interior of his home, followed the officer outside and was verbally abusing the officer in front of a growing crowd.

The potential for a riot or the crowd to become abusive well is too great. An officer at that point is obligated to arrest a man who would incite a growing crowd in that manner.

October 26, 2009 6:57 PM  
Blogger James said...

Interesting comments by all, but I think these are really side issues to the article's main point.

To the permits for concealed-carry: an uninfringeable right does not mean an unregulated right. Background checks and proof of at least basic competency in gun safety should be required of all gun owners, and permits are the most effective way to do this.

To Democracymmmk: resisting arrest is a fine line to walk. You are within your rights as a citizen to do so only if the arrest itself is illegal or unwarranted; however, resisting with violence (aka Assault on a LEO) is NEVER legal and they will lock you up for it every time.

With regards to the police officers, this bully mentality is far from new. In fact I'd say that it was once even necessary, in an older age where a sheriff needed to maintain stricter discipline over towns and had no backup or chance of recourse. Naturally, that era is gone but their need to strongarm the public is not...

October 27, 2009 6:17 AM  

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