Thursday, July 30, 2009

Prof. Gates' Unconstitutional Arrest -

It may have been a Town v. Gown controversy rather than a racial incident. Or even, as Steven Colbert proposed on Comedy Central's "The Colbert Report," a jock v. nerd matter with Sgt. Crowley as the jock and Prof. Gates, pictured riding his tricycle on Martha's Vineyard, as the nerd. But I prefer to agree with Massachusetts criminal defense and civil rights attorney Harvey Silverglate, who, in this Forbes commentary, "Prof. Gate's Unconstitutional Arrest: There's a First Amendment right to be rude to a cop," argued persuasively that "fundamentally the situation can, and should, be analyzed as a free speech case."

In my two plus decade criminal defense career, I too saw many police reports that parroted the words "loud and tumultuous behavior which caused a crowd to gather and created public inconvenience, annoyance and alarm." Disorderly conduct is what the Boston police used when the City's equally unconstitutional "Sauntering and Loitering" Ordinance somehow didn't fit or wasn't enough. As a new, young, white law student in 1976, I was threatened with arrest by a Cambridge police officer for insisting that he shouldn't be smoking inside the front of the Porter Square Star Market right under the "No Smoking" sign. Unlike Prof. Gates, I swallowed my First Amendment rights and stopped my confrontation upon the police officer's threat even though I knew it would have been an unconstitutional arrest.

As Atty. Silverglate points out:
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.

See the article also for Atty. Silverglate's brief but thorough history of First Amendment jurisprudence and the evolution of the "four exceptions to the First Amendment's protection for free speech."

1 comment:

Anonymous said...

There's a massive structural problem with the way we apply the First Amendment. The First Amendment doesn't prevent the police from arresting you or the state from prosecuting you. A trial judge may decide to apply the First Amendment in an extremely obvious case, but far more often will leave such issues for an appeals court. In either case, you're already out potentially devastating legal fees as well as the enormous time and stress of a trial and all the court dates leading up to a trial. Your reputation has been ruined, and your arrest record has destroyed many future opportunities even if you are acquitted.

If you persevere through all of this, despite knowing that there are strong incentives to take a plea instead, and you somehow convince a court that you never should have been arrested for protected speech in the first place, your remedies are extremely limited. You might be able to purge your arrest record from some state or federal databases, but it will linger permanently in third-party databases. If you can stomach more time in court suing for the breach of your constitutional rights, you might win a token amount of money that will not come close to compensating you for your losses. But the police and prosecutors know that their jobs are safe, and that they will never be personally penalized.

The net result is that police continue to arbitrarily arrest people engaged in purely non-violent, non-threatening political speech, as well as people engaged in other speech that is theoretically protected by the First Amendment. There's no incentive for them not to do so.