Prof. Gates' Unconstitutional Arrest: There's a First Amendment right to be rude to a cop.

Forbes ^ | July 28, 2009 | Harvey Silverglate

[Captain Kirk]

The now-infamous Gates story has gone through the familiar media spin-cycle: incident, reaction, response, so on and so forth. Drowned out of this echo chamber has been an all-too-important (and legally controlling) aspect: the imbroglio between Harvard Professor Henry Louis Gates, Jr., and Cambridge Police Sgt. James Crowley has more to do with the limits (or breadth) of the First Amendment than with race and social class. The issue is not how nasty the discourse between the two might have been, but whether what Professor Gates said--assuming, for argument's sake, the officer's version of events as fact--could by any stretch of both law and imagination constitute a ground for arrest for "disorderly conduct" (the charge leveled) or any other crime. Whether those same words could be censored on a college campus is a somewhat different--though related--question.

First, a quick recap. Gates returned to his Cambridge residence from an overseas trip to find his door stuck shut. With his taxi driver's assistance, he forced the door open. Shortly thereafter, a police officer arrived at the home, adjacent to the Harvard University campus--in my own neighborhood, actually--responding to a reported possible burglary.

Upon arrival, the officer found Gates in his home. He asked Gates to step outside. The professor initially refused, but later opened his door to speak with the officer. Words--the precise nature of which remains in dispute--were exchanged. Gates was arrested for exhibiting "loud and tumultuous behavior." The police report, however, in Sgt. Crowley's own words, indicates that Gates' alleged tirade consisted of nothing more than harshly worded accusations hurled at the officer for being a racist. The charges were later dropped when the district attorney took charge of the case.

It is not yet entirely clear whether there was a racial element to the initial

[Captain Kirk]

Finally, some good sense on the Gates arrrest. Before folks start calling names, please note that Silverglate works for the Foundation for Individual Rights in Education and is a tireless fighter against the academic left's efforts to restrict academic freedom.

[ClearCase_guy]

Disorderly conduct is now a Constitutional right. Apparently.

[BGHater]

‘harshly worded accusations hurled at the officer for being a racist.’

Whats the world coming to. If I can’t call a cop, racist on my own property; where can I?

[Captain Kirk]

I’m sure that Obama thinks your commments on this site constitute “disorderly conduct” and he has the cops to arrest you for it!

[rwfromkansas]

how ridiculous.

If you are not going to cooperate, you should expect to take a trip downtown to sort out the facts.

I am not pro-cop, but he was effectively obstructing justice, or at the very least, acting disorderly.

[Captain Kirk]

You might be joking but yes you SHOULD have a right to call ANYONE a racist on your own property, that is if you believe in property rights. Do you?

[BGHater]

I always wondered why the cop didn't have his weapon drawn when he was responding to a ‘suspected burglary’?

[Captain Kirk]

Obama’s cops are going to love you. You’ll obey and won’t complain.

[badgerlandjim]

[Uncle Ike]

Shoulda just tasered him — that’s evidently the acceptable police response to ‘lipping-off’...

Fox would have run the dashcam footage nonstop for a couple of days, and that would have been the end of it....

[BGHater]

Of course. If you can’t be disorderly on your own property, where can you?

After all, he was being arrested for that. By the cop. No one else complained.

[wilco200]

this isn’t a case where the cops came on to someone’s private property and arrested the owner for some trumped up reason violating his private property rights.

This case is simple. A cop responds to a possible B&E. The owner of the resident, decides to turn the incident into a racial publicity stunt taunting the police and trying to get himself arrested. He got his wish.

gates has made an entire career out of being a race hustler. After this, he’ll probably be able to afford a new 24 speed tricycle

[I Buried My Guns]

There was a day when the esteemed professor Gates would have been the recipient of a baton shampoo (with the approval of society at large), and that would have been the end of it.

I still think he would benefit from ol' hickory.

[thefactor]

you obviously have no real-world police experience. but you’ll second guess a cop even though you weren’t there.

[jwparkerjr]

A good report but the premise if as full of it as a Christmas turkey. Gates was not arrested for simply yelling at and insulting a cop. Had they been inside the house, out of earshot of the crowd that his hysterics was drawing he would not have been arrested. That was not the case. He was outside, in full view and hearing of the gathering crowd of witnesses. He was advised at least twice that his behavior was putting him at risk for arrest. He ignored the warnings and the rest is history. Other officers at the scene, including a black officer, supported his decision to arrest Gates.

The officer talked with Gates inside the house and was in the process of leaving when Gates followed him out onto the porch and continued the diatribe. Personally I don’t expect any officer to have to ignore being yelled at and insulted. Gates should have shown the officer the respect the officer showed him.

[ladyjane]

Silverglate is a flaming liberal lawyer. Like most lawyers he talks out of both sides of his mouth. He has found his niche putting on a white hat once in a while - if he can turn a dollar or get some publicity while doing it.

[Excellence]

Here is the problem as I see it. Gates was trying to stir up the crowd that had gathered in front of the house with the hopes that they would intervene, triggering an even larger confrontation. Crowley put a stop to it. All Gates had to do was shut up and go back in the house and he would not have been arrested. Crowley stopped Gate's attempt at fomenting a race riot, albeit small. First amendment rights have always stopped at yelling “fire” in a crowded theatre, and they stop at fomenting a race riot.

[maine yankee]

a very good article.

But it does not excuse Mr Obama for throwing Kerosene on the fire.

[AppyPappy]

It depends on how you are rude. Look up the law “Ethnic Intimidation”.

[jessduntno]

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 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.

When do the police get mind reading training that will tip them off when the bad actor or an on looker or lookers are incited to riot or harm the officer while the “(1) speech posing the “clear and present danger” of imminent violence or lawless action posited by Holmes” is going to occur.

At what point can this so-called logic turn into a riot? What happens to the idea that hate speech, (which this was) is not permissable? If the general discourse is so lowered that an attempt to restore peace by a LEO is not honored, where do we go from there?

This is bullshit. You might have THE RIGHT to hate speech because you are a black guy screaming epithets at a white guy? I don’t think so.

What if it’s four black guys in a black neighborhood, a cop rolls up to move them along and they break this crap out on the cop? They just tuck tail, apologize and move on?

WHAT message are we sending, that no respect is due to the law?