Thursday, July 30, 2009

Looking at "Disorderly Conduct"

Long story short, this fellow Henry Silverglate maintains that the "Disorderly Conduct" arrest of Gates at Harvard was un-Constitutional.

It is worth recalling that the perfectly legal and Constitutional practice of open-carry in Wisconsin was rewarded with "Disorderly Conduct" arrests and charges until very recently.

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.

Maybe. While I can agree that DC is probably the most abused charge in the entire book, Gates' yelling and screaming while on his porch was, I think, more of a factor. Had that yelling and screaming been confined to inside-the-house, Silverglate would have a tighter case. (Perhaps "Disturbing the Peace" would be the better charge--if such a thing remains available.)

In fact, Silverglate covers that possibility:

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"?

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

He mentions a case which actually does prohibit 'fighting words' against a police officer, but also mentions that the decision has not been "shored up" by subsequent similar decisions. IOW, Silverglate would call that one case an 'outlier' in common parlance.

But in the end, Silverglate shows a fixation on free speech which is unsettling.

OTOH, there should be a chargeable offense entitled "Public Assholery" which could be applied to Prof. Gates.


Anonymous said...

It seems to me that "I'll see yo momma" and hollering 'racism' to a crowd outside is an incitement to riot, and thus categories 1 and 4.

Anonymous said...

Thank you for your kind words of support

Let me relate what happened to me several weeks ago.
I was elected to a political office.
My opponent claimed that the election had been rigged.
He incited people to protest the elections.
Thousands of protesters took to the public streets, yelling, screaming, even shouting death threats to me. They blocked traffic. They refused to listen to the police. They created a very dangerous situation.
The police asked them to disperse.
But they refused. They continued to block traffic.
In the end the police had to arrest many of them on charges of disorderly conduct.
Many of them are now going on trial.

When the police make a request you best comply otherwise things could go badly for you.

Thank you for your support

Mahmoud Ahmadinejad
Iranian President