First Amendment "Rights"

Sitting in Canada, I can have fun watching the hypocrisy of American "patriots". All the law-and-order types wanted the Cambridge police officer Crowley to jail the Harvard professor Gates because Gates wasn't showing sufficient "respect" for authority. Funny. These "patriots" don't bother reading their on Constitution and its First Amendment rights.

Here's a nice article by published in Forbes by Harvey A. Silverglate, a criminal defense and civil liberties lawyer:

By longstanding but unfortunate (and, in my view, clearly unconstitutional) practice in Cambridge and across the country, the charge of disorderly conduct is frequently lodged when the citizen restricts his response to the officer to mere verbal unpleasantness. (When the citizen gets physically unruly, the charge is upgraded to resisting arrest or assault and battery on an officer.) It would appear, from the available evidence--regardless of whether Gates' version or that of Officer Crowley is accepted--that Gates was arrested for saying, or perhaps yelling, things to Crowley that the sergeant did not want to hear.

As one of Crowley's friends told The New York Times: "When he has the uniform on, Jim [Crowley] has an expectation of deference." Deference and respect, of course, are much to be desired both in and out of government service--police want it, as do citizens in their own homes or on their porches or on the street. However, respect is earned and voluntarily extended; it is not required, regardless of rank.

Some have posited that Crowley's tolerance for citizen vituperation was lower because the speaker was a black man, or a member of the city's economic and social elite. As a four-decade (and counting) criminal defense and civil liberties lawyer, I can say with reasonable assurance that while there might have been some degree of racial or, more likely, class animus that underlay the contretemps between citizen and officer here, fundamentally the situation can, and should, be analyzed as a free speech case.

Why? Because any citizen--white, black, yellow, male, female, gay, straight, upper or middle or lower class--who deigns to give lip to a police officer during a neighborhood confrontation or traffic stop stands a good chance of being busted. And this is something in police culture nationally--and probably all around the world (I've observed Frenchmen giving lip to Paris flics and gendarmes, also with bad results for the civilians)--that begs for change.

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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.

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There is a serious problem in this country: Police are overly sensitive to insults from those they confront. And one can hardly blame the confronted citizen, especially if the citizen is doing nothing wrong when confronted by official power. This is, after all, a free country, and if "free" means anything meaningful, it means being left alone--especially in one's own home--when one is not breaking the law.

Sgt. Crowley had every right to check on what was reported as a possible break and entry. But as soon as he realized that the occupant was entitled to be in the house, he should have left. He admits in his own police report that he was indeed able to ascertain Professor Gates' residency and hence right to be in the house.

As for Professor Gates' inquiries into the officer's identity and badge number (as Gates describes the confrontation) or his tirade against the officer (as Crowley reports), the citizen was merely--even if neither kindly nor wisely--exercising his constitutional right when faced with official power. Even if Professor Gates were wearing a "Fuck You, Cambridge Police" jacket, the officer would have been obligated to leave the house without its occupant in handcuffs.

Go read the whole article. It has a wealth of material on civil rights and the role of police.