The Living Room Times

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.