[Peace-discuss] Officers violated Kiwane's and best Friend's First Amendment Rights?

[Melodye Rosales]

I think this Forbes article is pertinent to both Kiwane as well as the best
friend facing resisting arrest allegations.  Can parts of this argument be
applied to our local plea that the CPD acted incorrectly based on their own
statements that they were ordering the youths to "cooperate" to "drop to
their knees with their hands up".  Based on the article below, it seems that
once the youths stated they lived at the residence in question (can't
imagine they did not) the officers had no more authority and anything that
happened thereafter was illegal and it appears the officers committed a
crime instead?  It appears the officers impeded the youths First Amendment
Rights?

-M



*
http://www.forbes.com/2009/07/28/gates-crowley-arrest-first-amendment-free-speech-harvard-opinions-contributors-harvey-a-silverglate.html
*

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 decision by a woman on the street--working for Harvard Magazine, no
less!--to call the police, although that is looking unlikely. It remains
disputed whether Sgt. Crowley treated Professor Gates any differently than
he would treat a white citizen in the same position. (In fact, if one
accepts Crowley's claim that he dished out to Gates equal treatment under
the law, this case stands as a dire warning to all citizens as to the
dangers inherent in exercising one's constitutional right to free speech
when in an exchange with a police officer--but more on that below.)

Indeed, Crowley did not arrest Gates for breaking and entering, for by then
he was clearly convinced that the professor did live in the building. (For
one thing, Harvard University Police officers had by that time arrived at
the scene, and they easily could have checked not only that Gates was on the
faculty, but that he lived in the Harvard-owned residential building. Gates
is one of the most widely known faces in the Harvard community.) Instead,
Crowley arrested the diminutive and disabled professor (he uses a cane to
walk and bears a passing resemblance to the French painter Henri de
Toulouse-Lautrec) for disorderly conduct--the charge of choice when a
citizen gives lip to a cop.

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.

And so, before the dreaded thought-reform charlatans start coming out of the
woodwork in order to prescribe yet more "sensitivity training" for
Cambridge's finest, everyone 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. 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.

The test for the limits of such freedom was first and most famously
enunciated by Justice Oliver Wendell Holmes, who wrote of the need for
protecting "the expression of opinions that we loathe and believe to be
fraught with death, unless they so imminently threaten immediate
interference with the lawful and pressing purposes of the law that an
immediate check is required to save the country." Holmes wrote this
dissenting opinion in a 1919 Supreme Court case in which a majority affirmed
the espionage conviction of five Russian-born Jewish radicals for publishing
a pamphlet that sought to provoke resistance to the American war effort as
well as to American efforts to undermine the Russian Revolution. Holmes'
view eventually became the law of the land as other Supreme Court justices
came to agree with him.

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.

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.

In that infamous speech case, Walter Chaplinsky, proselytizing on the street
in Rochester, N.H., denounced organized religion as a "racket." When
Chaplinsky would not moderate his verbal attack, and when the crowd got
angry and restive, a police officer took Chaplinsky toward the police
station (but did not yet arrest him). During this trip, Chaplinsky accused
the city marshal of being "a goddamned racketeer" and "a damned Fascist,"
and went on to charge that "the whole government of Rochester are Fascists
or agents of Fascists." For this, Chaplinsky was arrested and charged under
a statute prohibiting anyone from addressing "any offensive, derisive or
annoying word to any other person who is lawfully in any street or other
public place, nor call[ing] him by any offensive or derisive name."

The Supreme Court upheld the conviction on the ground that Chaplinsky had
used "fighting words" likely to provoke an immediate violent response from
the listener. The high court deemed such language to be "insulting or
'fighting' words--those which by their very utterance inflict injury or tend
to incite an immediate breach of the peace."

"Such utterances are no essential part of any exposition of ideas," the
court ruled, and they could be banned in "the social interest in order and
morality."

However, a conviction for the use of such language has never since been
upheld, and First Amendment lawyers and constitutional scholars widely deem
it a dead letter. In fact, in 1943--only one year after its decision in
Chaplinsky--the high court had obvious second thoughts about part of its
earlier "fighting words" rationale. The court in Cafeteria Employees Local
302 v. Angelos, said that the use of the word "Fascist" (the precise
"fighting word" used by Chaplinsky) is "part of the conventional
give-and-take in our economic and political controversies." Thus, the word
was protected under federal labor laws.

The dam holding back "bad" words having thus been broken, by 1949 the Court
took the further step of reversing the disturbing-the-peace conviction of a
suspended Catholic priest and followers of the notorious anti-Semite Gerald
L. K. Smith. Father Arthur Terminiello gave a speech in Chicago attacking
"Communistic Zionist Jews," moving an unsympathetic crowd to violence
against him. Justice William O. Douglas wrote, in an opinion for the high
court that reversed the conviction, that the "function of free speech under
our system of government is to invite dispute. It may indeed best serve its
high purpose when it induces a condition of unrest, creates dissatisfaction
with conditions as they are, or even stirs people to anger."

Thus, the Court sent a message that the First Amendment prohibits the
punishment of words merely because they might produce an angry reaction.
Terminiello was particularly important because the offensive language, even
though it in fact produced a violent reaction, was not viewed as "fighting
words." It was the job of the police to arrest the violent members of the
crowd, not the speaker.

And, to 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! In Cohen, the high court essentially recognized the emotive
function of expression, placing emotion alongside logical argument as
political speech worthy of constitutional protection. The court spoke to the
value, in a free society, of allowing the individual citizen to choose how
to express himself. This recognition of the value of self-expression was
coupled, in the Court's view, with an inability of the state to make a
principled distinction between "offensive" language and other language,
because it is "often true that one man's vulgarity is another's lyric."

There is a certain irony, however, that Professor Gates should be caught up
in a controversy that, at bottom, is about the limits of free speech in
confronting official power. The irony grows out of the fact that two of the
major ways in which an American can run into big trouble for mouthing off
without adequate self-censorship are: (1) let a police officer know that
you're not happy with being, or feeling, hassled, or (2) say something
politically incorrect on a college campus. In this regard, both Cambridge
and Harvard are more typical than special.

University censorship in the name of not "offending" others, including
(perhaps especially) members of "historically disadvantaged groups" is now
an old story. Professor Alan Charles Kors and I elucidated the sorry state
of free speech on campuses of higher education, including Harvard, in our
1998 book The Shadow University: The Betrayal of Liberty on America's
Campuses. Soon thereafter we co-founded The Foundation for Individual Rights
in Education to battle the contagion of censorship in the academic world.

Subsequently, I've written from time to time about the infliction of
penalties for speech that is too frank and potentially found offensive by
various categories of students deemed (often degradingly so) by censorious
college administrators to be particularly sensitive to insults or even
insulting ideas.

Indeed, Professor Gates, to his enormous credit, has parted ways with the
ubiquitous speech police on his own and other campuses. In September 1993,
Gates wrote for The New Republic a powerful critique of campus "harassment
codes" that outlaw unpleasant speech. Gates was dealing with a typical
university speech code, such as the one in force at the time (and still in
force on campuses all around the country) at the University of Connecticut,
that banned "treating people differently solely because they are in some way
different from the majority, … imitating stereotypes in speech or
mannerisms, … [or] attributing objections to any of the above actions to
'hypersensitivity' of the targeted individual or group."

Gates labeled this hypersensitivity provision "especially cunning" because
"it meant that even if you believed that a complainant was overreacting to
an innocuous remark, the attempt to defend yourself in this way could serve
only as proof of your guilt." In other words, self-defense against claims of
uttering "harassing" speech only furthered the culpability of the accused in
the Orwellian world of academic censorship.

Under Gates' own analysis of the University of Connecticut "harassment"
speech code, neither Officer Crowley's words to Gates, nor the professor's
responses, nor the officer's replies to those responses, should prove the
guilt of either. There was no violence. There were only words, some of which
might have been insulting and otherwise unpleasant. And in a free society,
verbal expression--even if disagreeable--should never lead to clamped
handcuffs.

This is the long and short of it. For whatever significance that columnists,
bloggers and commentators project onto the Gates-Crowley confrontation, it
was, and likely should remain in the absence of new and compelling evidence
to the contrary, a free speech matter governed by the First Amendment to the
Constitution.

This will not, perhaps, please those who would like to turn it either into a
"teachable moment" for either racial profiling (a phenomenon that doubtless
exists, but likely played no role in this case and certainly did not account
for Officer Crowley's initially confronting Professor Gates, whose actions
sparked a citizen's 911 call to the police rather than a spontaneous police
stop) or into an example of why police need to protect themselves while on
duty (words may wound, but not in any sense recognized by the Constitution).

The Cambridge Police Department and the District Attorney of Middlesex
County wisely agreed with Gates and his lawyers to dismiss the charge of
"disorderly conduct." Perhaps the dismissal was occasioned by the discomfort
prosecutors--and perhaps both sides--were feeling about proceeding to a
criminal trial where both Gates' and Crowley's words would be on public
display. But the D.A. had another reason for dismissing the charge: Had
Professor Gates and his lawyers raised a First Amendment defense, the
defendant almost certainly would have prevailed--if not at the trial court
level, then in the appellate courts--and the scope of the "disorderly
persons" statute would have been severely limited in all future
citizen-police confrontations. The future use of handcuffs to penalize a
citizen mouthing-off against official authority would have been, at long
last, curtailed. Perhaps the common good would have been better served had
the case proceeded to trial after all.

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.

Harvey A. Silverglate is co-author of The Shadow University: The Betrayal of
Liberty on America's Campuses (HarperPerennial paperback, 1999), from which
some of the First Amendment analysis in this article is taken, and the
author, most recently, ofThree Felonies a Day: How the Feds Target the
Innocent (Encounter Books, 2009). (Kyle Smeallie assisted in the preparation
of this piece.)
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