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.