I don’t mean to obsess over this stupid Cambridge case, which is really not all that important in the grand scheme of things. There are far worse examples of police misconduct; this one is a prominent story mainly because of a question asked at a presidential press conference, and because we’re in the midst of the annual midsummer news lull.
However, it is serving as a “teachable moment,” or at least a clarifying one, in terms of the reactions it has generated. And that’s the reason I’m borderline obsessed with it: not because of how I feel about Gates or Crowley or this case specifically, but because the ignorant, authoritarian, anti-constitutional attitudes being commonly expressed, here and elsewhere, really piss me off.
And so, for the edification of those who continue to misunderstand (or disregard) the nature of our constitutional republic, because they think citizens’ free-speech rights pose an inconvenience to law enforcement, I offer this analysis by Harvey A. Silverglate, co-founder of FIRE (an organization beloved by conservatives) and author of The Shadow University: The Betrayal of Liberty on America’s Campuses. Whereas many conservatives apparently feel more threatened by infringements on their liberties imposed by university bureaucrats with pens than those imposed by police officers with guns, Silverglate rightly feels threatened by both. And so, he writes:
[E]veryone should take a step back and ask why so many citizens–including Professor Gates, who, it is conceded, did not assault Officer Crowley–end up being arrested for uttering mere words. Because, whether the words were as perfunctory and non-objectionable as Gates’ claim that he asked for Crowley’s name and badge number, or as heated as Crowley’s claim that Gates let loose a stream of loud and offensive insults, they were, well, just words. Put more simply, why do we as a society so often ignore traditional notions of First Amendment freedom to speak one’s own notion of truth to power when one party to the confrontation is wearing a uniform, a badge and a gun?
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. …
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 [Justice Oliver Wendell] 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.
Silverglate then proceeds to explain, in detail, why the “fighting words” doctrine clearly does not apply to this case. Read the whole thing. He concludes:
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 “F*** You, Cambridge Police” jacket, the officer would have been obligated to leave the house without its occupant in handcuffs.
Crucially, none of this is disputable. That Professor Gates’s arrest was illegal and unconstitutional is a simple and undeniable fact, arising out of long-settled precedents and principles of constitutional law. If a Massachusetts statute counsels a different result — and I don’t believe it does — then that statute would itself be plainly unconstitutional, at least as applied to this case. Simply put, there is no possible legal justification for Gates’s arrest. So then, what are we arguing about, exactly? Just because the conservative authoritarians among us might think that the Constitution should give Officer Crowley the right to arrest Professor Gates, doesn’t mean it actually does. When Gahrie and Andrew, et al, are appointed to the United States Supreme Court, maybe they can change the law of the land. Until then, however, what Officer Crowley did was illegal, and what Professor Gates did, wasn’t. Period. The End.
When Gahrie and Andrew, et al, are appointed to the United States Supreme Court, maybe they can change the law of the land.
Gee thanks Brendan, that thought is going to give me nightmares for WEEKS. Jerk.
Heh.
You argue that Gates’ actions are obviously legal because of “long-settled precedents and principles of constitutional law”. Being lawyerly, you no doubt have access to Massachusetts case law, which seems to support your conclusion, per Mallahan, though the case was decided, on appeal, last year. Not sure that meets the definition of “long settled”.
Indeed, the very Silvergate text seems to call into question the legality of Gates’ public outburst. Free speech is not protected when it poses a “clear and present danger” or “fighting words” in public. Hurling a stream of f-bombs at a cop on your front porch do not qualify as “fighting words”? What then are fighting words?
You often hear defenders of Gates point to his frail state, citing his cane and physical disabilities, as evidence that he obviously posed no danger. That’s specious of course. I doubt any of us would dismiss the danger from a neighbor hurling invective at a cop just because he was old or firing a weapon at the cop would aggravate his arthritis.
Indeed, I have this image of your family spending a quiet summer afternoon at your home, with your two daughters playing outside in the front yard, when suddenly your neighbor – of whatever physical state – begins screaming profanity-laced invective at a police officer on the front lawn. Your nervous wife suggests that maybe this is a good time to bring your daughters inside, seeing as how the “fighting words” next door may pose a “clear and present danger” to your children.
And you reply, ah, its fine, its just “contempt of cop”, a matter between the policeman and your neighbor, no danger to the kids, just an exercise of freedom of speech, nothing to worry about there…
Jazz, I am talking about settled federal constitutional law, as decided by the United States Supreme Court. As I mentioned in the post, I don’t care what Massachusetts law says, because if the federal precedents are clear (which they are), they control. Neither the Massachusetts legislature nor the Massachusetts courts can declare an unconstitutional law valid.
I didn’t excerpt Silverglate’s lengthy analysis of the “fighting words” issue, but I did reference it: “Silverglate then proceeds to explain, in detail, why the ‘fighting words’ doctrine clearly does not apply to this case. Read the whole thing.” I’d encourage you to do that. Your analysis rests on a misunderstanding of what that doctrine entails. Your misunderstanding is understandable (and common), but in the end, this is (again) simply not a close or debatable issue. Fighting words doctrine does NOT apply to this case, by any factual account. The bar for arresting a person for “fighting words” is intentionally set very, very high.
As for your hypothetical, there would be no inconsistency on my part in believing that 1) it would be prudent to bring my daughters inside as a precautionary measure, in case things escalate — but that 2) unless things DO in fact escalate, no crime has been committed, and my neighbor can’t be arrested for mere words. I’m sure I don’t have to point out the endless flaws in the premise “anything that makes a parent take precautions on behalf of his children is necessarily grounds for arrest.” Or do you think all producers of horror films should be arrested for obscenity because I try to prevent my daughters from seeing commercials for them? And that the shady-looking character walking down the 16th Street Mall, from whom I keep my distance, as a precaution, when walking down the mall with my kids, should be arrested for the crime of being shady-looking? Your “image” of my parental behavior is a non-sequitur. It has no bearing on this discussion whatsoever. The issue is not whether a reasonable person would have been concerned by Gates’s behavior and/or worried that things might escalate. The issue is whether Gates committed a crime. Which, by any account, he did not. And, by any account, this fact was crystal clear at the time of his arrest. Ergo, his arrest was unjustifiable.
You’re right that I hadn’t read Silvergate’s entire piece, and I just did so now. I agree that Silvergate makes some good points, including the hope that a policeman, armed and trained in conflict resolution and armed, might be expected to behave better in conflict. The fact that policemen don’t weighs into our expectation of the danger inherent in a citizen-cop standoff on the front lawn, yes?
That said, I believe that the difference in “fighting words” between Gates cursing out a cop on his front lawn and the Chaplinsky example – the basis for settled law on “fighting words” – is not as wide as your argument characterizes. I am at a disadvantage here…still, per Silvergate’s description, the relevant definition of “fighting words” was established in the context of a person yelling “fascist” and “racketeer” against city government officials. Compare that with Gates allegedly calling Crowley a “f***ing racist”. If there is a line there, it is certainly a fine one indeed.
Further, your comparison of the threat of public conflict with the threat of horror films or shady folks in the mall is also unconvincing in that only one of those three scenarios meets the criteria of “imminent” danger. My small daughters are not in imminent danger as a result of the film Orphan, or even as a result of the stereotypical folks at the mall to see Orphan. The neighbor who suddenly bursts into a profanity-laced tirade against a cop, on the lawn, is a whole other category of imminent danger.
Actually, the difference between the three scenarios is telling. Here are three things I don’t want for my daughters: 1) to watch horror movies, 2) to hang out with the folks who stereotypically watch horror movies, and 3) be caught in the crossfire of an escalating incident outside our house. Its pretty obvious to me that the first two are my job as a parent, and my daughters’ choices as free citizens, so I have no right to expect the state to help me with those.
However, choice 3? Yeah, I’m gonna look for The Man to help me with that one.
http://www.huffingtonpost.com/2009/07/29/disorderly-conduct-conver_n_246794.html
If this is piling on, I apologize, but I remain baffled about the alleged “huge” difference between ‘Gates-gate’ and settled law about circumstances the First Amendment doesn’t protect. In Silvergate’s teaching, the disallowed “Fighting Words” criteria is based on the Chaplinsky case, in which the Supreme Court unanimously upheld the arrest of a man for “insulting” (words) that “tend to incite an immediate breach of the peace”.
The insulting words in question were Mr. Chaplinsky accusing public officials of being racketeers, or in modern parlance, corrupt.
Professor Gates allegedly shouted that Crowley was a “f***ing racist” in public.
How is Gates’ situation different from Chaplinsky’s? If there’s a teachable moment here, in the suggestion that Gates’ outburst is materially different from Chaplinsky’s, I am afraid I am not learning.
Jazz, the difference, is, of course context. I can yell FIRE or even F*ing FIRE in my home, or perhaps if I’m in charge of a shooting range. Or really in any context in which my yelling fire will not imminently and predictably cause a stamped of people running from a none existent conflagration. That is I’m not to needlessly imperil other people. Fighting words is a similar though slightly different case. For example if the President of AT&T were giving a speech some place and I started yelling about how text messaging charges are exorbitant and we should beat the crap out anyone that perpetuates such charges those would be fighting words. On the other hand if I barged into the dudes office and started screaming at him about text messaging charges I might be an asshole and I also might be trespassing, but I’m not inciting violence. At worst I’m inciting violence against my own person. I’ll defer to Brendan on this on, but I’m not aware of that being illegal.
In other words having a verbal fight with someone is not the same thing as fighting words. So while a prudent parent might take their children out of ear shot that does not make the actual conflict itself in any way illegal.
At the risk of being called a conservative authoritarian, I don’t believe the situation is clear cut either. I think it’s legitimate to characterize “f-ing racist” and references to one’s “mama” as fighting words (if indeed that’s what was said).
Certainly, if those words were directed to any other professional on the job, they might even rise to the level of assault if the person at whom the words were screamed felt threatened. In fact, the situation DCL describes–barging into the dude’s office and screaming at him–would seem likely to end in an assault charge and some sort of order of protection. I know students aren’t allowed to barge into my office (let alone the classroom) screaming obscenities at me without campus security becoming involved.
I’m not suggesting Gates is guilty of assault. However, did Professor Gates utter fighting words that were inciting a breach of the peace? Perhaps.
And that’s the problem. If this nation is going to have a reasonable discussion about police misconduct and the abuse of the disorderly conduct charge, this case shouldn’t be the point of reference. It marginalizes cases of egregious misconduct (some of which Brendan has described previously) and renders a large segment of the population wary of individuals who bring such charges against officers.
Dane, it seems from an (amateur) reading of the issue, the “fighting words” in the Chaplinsky case were invective hurled at an authority in public. Precisely what Gates did. Not sure where your public/private distinction matters; no one would feel imminent danger if Gates merely cursed out the cop inside his home.
I am glad that Johanna brought up the university example, since my family has unfortunately had experience in the matters of which she speaks. My wife started a gig as a Professor last fall, and in one of her first classes a student publicly accosted her about her lectures, the material, etc, in a decidely hostile manner. In the wake of Virginia Tech, in a frightening manner.
Come to discover that this student has a long history of bizarre confrontational behavior, and while the University can’t access his medical records (per HIPAA) security nevertheless monitors him closely in a way that would no doubt upset the “publicly-screaming-profanity-laced-invective-at-a-cop-falls-far-short-of-fighting-words” crowd.
So we’re actually on the other side of this issue from the majority, whom Brendan’s view seems to represent. My family fears that the Gates CW will weaken the application of fighting words per Chaplinsky, thus limiting the ability of authorities to maintain public safety. To reiterate, the kid in my wife’s class has apparently never said anything nearly so provocative as scream to a cop that he was a “f***ing racist” in public.
From what I understand, the Virginia Tech shooter never did either.
In the University example there is a public private divide. Of course which is just too much to get into so we can assume a private University it gives the person being yelled at more power. And just because security becomes involved does not, ipso facto, mean that a crime is being committed. I’ll ignore for now what private security is and is not allowed to do, it is different depending on jurisdiction, generally though private security is only really allowed to look threatening which is why bars tend to go for really big guys for the job, they look nice and threatening. In most cases if you are going to successfully charge someone for a crime when they come yelling at you in your office or some other such thing you are going to have to find a law they broke in the processes of yelling at you that doesn’t really have anything to do with said yelling. For example criminal trespass. Security can kick you out on private property and they usually do by looking threatening at you until you leave physical removal will require a call to the police unless you want to be charged with assault in most jurisdictions or unless your security personnel has been deputized.
However, in the Gates case we aren’t talking about someone yelling at you on your property. We are, instead, talking about someone yelling at you while you are on their property. It doesn’t take a rocket surgeon to realize that in this context the person doing the yelling has a whole hell of a lot more rights than the person being yelled at for, among other things, trespassing. In other words the officer in the Gates case isn’t the professor, the officer in the Gates case is the student. So I thank Jazz and Johanna for agreeing with me that the officer overstepped his bounds, and possibly committed assault through intimidation. And I hadn’t even thought about Gates requesting a restraining order on the officer, but that’s probably not such a bad idea.