Henry Louis Gates's First Amendment Rights

Harvey Silvergate writes at Forbes magazine that the appropriate lens in which to understand the Gates-Cambridge PD affair is as a violation of a citizens first amendment protections.

Silvergate writes:

"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."

Silvergate, a first amendment attorney, as he points out several times, takes the reader through a compelling explanation of his claim that Gates' first amendment rights were violated. He discusses the applicable precedents. Silvergaet writes:

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 later writes in reference to Gates' own writing on free speech on university campuses:

"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."

Definitely worth the complete read.

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