Silverglate on Gates Arrest and the First Amendment Right to be Rude
July 30, 2009
by Adam Kissel
FIRE Co-founder Harvey Silverglate, who is also Chairman of FIRE's Board of Directors, published a terrific piece in Forbes this week on the "First Amendment right to be rude to a cop." The context was the "unconstitutional arrest" of Harvard Professor Henry Louis Gates, Jr., by a city policeman, but the argument is a powerful reminder to college students that they have a First Amendment right to say uncivil things to campus police (and others on campus) as well. Not following lawful orders is one thing, but being rude is another thing entirely—especially when one thinks the officer deserves it—and, wise or not, it is protected by the Constitution. As Justice William Brennan, writing the majority opinion for the Supreme Court in Houston v. Hill, 482 U.S. 451 (1987), observed, "the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers."
Of course, to be rude is by definition not polite, but politeness has never been a mandatory obligation when one is accosted by a policeman. The charge against Gates for his alleged rudeness was "disorderly conduct." As Harvey puts it:
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. ... [T]his 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 ...
Harvey offers further reflections for students the next time they find themselves in a situation where they are being threatened with arrest or punishment merely for being "loud" or "offensive" or "uncivil":
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"?
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.... 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.... It was the officer's duty to restrain his own response, particularly the exercise of his official powers of arrest.
Harvey also alerts readers to an excellent article on freedom of speech by Gates himself, "Let Them Talk" (The New Republic, Sept. 20 and 27, 1993, 40–49). In his article, Gates points out the near-uselessness and frequent "abuse" of the "fighting words" exception (in part I), and he critiques the coarser conflations of speech and conduct (in part VII). Gates also foresees his own treatment sixteen years later:
It's been pointed out that when police arrest somebody for loitering or disorderly conduct, the experience of arrest—being hauled off to the station and fingerprinted before being released—often is the punishment.
Facing the prospect of such "punishment" simply for seeming uncivil, people hold back or "chill" their speech in front of authority figures like police or campus administrators. As Gates puts it:
[O]ne person's chill is another person's civility. It is clear, in any event, that all manner of punitive speech regulations are meant to have effects far beyond the classic triad of deterrence, reform, and retribution.
At first I had a hard time seeing how Gates' arrest had much to do with Harvey's points in his article about campus speech codes (Gates also powerfully rejects speech codes in his article on several grounds). But now I see that the chilling effect is one and the same. Aware of speech codes and events like Gates' arrest, and fearing punishment themselves—whether it is by the police or the campus judicial system—students and faculty members become more and more afraid to say what they're really thinking. That is an extremely unfortunate result for free discourse, especially in an intellectual city like Cambridge and a world-class research university like Harvard.