Henry Louis Gates’ civil rights weren’t violated. His constitutional rights, however, were thrashed.
The prominent Harvard professor, an African-American who was confronted by a white police officer after forcing open the door to his own Cambridge, Mass., home, has called the incident — and his subsequent disorderly conduct arrest — racially motivated.
Police acted appropriately in their investigation of a reported burglary, but they trampled Gates’ First Amendment right to free speech when the W.E.B. DuBois scholar was charged with disorderly conduct for loudly criticizing the officers.
Gates was returning home shortly before 1 a.m. on July 16 and used his shoulder to pry open his stubborn front door, according to media reports. A neighbor believed he and another man were breaking into the house and called Cambridge police. Sgt. James Crowley arrived at Gates’ home, questioned him about the reported break-in and asked for identification.
The Cambridge Police Department incident report indicates Gates felt he was being discriminated against from the onset of his encounter with Crowley. When the sergeant asked Gates to step onto the porch and speak with him, Gates replied, “Why, because I’m a black man in America?” according to the report.
Even as Crowley verified that the professor was in his own home, Gates goaded the cop, picking up his home phone and barking for someone to contact the police chief.
“Gates was telling the person on the other end of the call that he was dealing with a racist police officer in his home,” Crowley wrote in the report. “Gates then turned to me and told me that I had no idea who I was ‘messing’ with and that I had not heard the last of it.”
Satisfied that Gates had committed no crime, Crowley left the home. But the professor was on his soapbox, and his front yard was his lecture hall. He followed Crowley into the yard, shouted down the police for their alleged racial profiling and unleashed a frothy tirade against Crowley.
“Gates again asked for my name, which I began to provide,” Crowley wrote in the police report. “Gates began to yell over my spoken words by accusing me of being a racist police officer and leveling threats that he wasn’t someone to mess with.”
Crowley warned Gates twice that he was becoming disorderly, the report states. Police officers and neighbors “appeared surprised and alarmed by Gates’s outburst,” the sergeant wrote.
“For a second time I warned Gates to calm down while I withdrew my department-issued handcuffs from their carrying case,” Crowley said in the report. “Gates ignored my warning and continued to yell at me. It was at this time that I informed Gates that he was under arrest.”
Meant to quell riots and diffuse disturbances, disorderly conduct is often a catchall charge misused to punish constitutionally protected speech. State statutes are vague and overbroad, leaving it largely to individual law enforcement officers to determine when speech or conduct becomes disorderly.
New York law professor Eugene O’Donnell told Time magazine that disorderly conduct is “probably the most abused statute in America.” Officers sometimes charge their caustic critics with this dubious crime when they are personally offended — a phenomenon that another professor calls “contempt of cop.”
“With contempt of cop, you get loud and nasty and show scorn for a law enforcement officer, but a police officer can’t go out and lock you up for disorderly conduct because you were disrespectful toward them,” Jon Shane, a professor at John Jay College of Criminal Justice, told Time.
“The First Amendment allows you to say pretty much anything to the police,” the magazine notes.
Criticizing a law enforcement officer for perceived racial prejudice falls well within the realm of important political speech that enjoys the Constitution’s strongest protection. Though Gates raised his voice, he did so not to create a public disturbance, but to broadcast his protest of police treatment.
It’s the difference between a car horn — a noisy nuisance deserving little legal protection — and a bullhorn — a tool of substantive speech deserving much.
The frivolous charge against Henry Gates was quickly dropped, but President Obama’s remark that Cambridge police acted “stupidly” in arresting Gates, an old pal of the president’s, has raised ire among police and their supporters.
Obama has invited Crowley and Gates to the White House for a “beer summit” — a candid discussion of law enforcement and race relations. A frosty brew may chill this brouhaha, but police nationwide would do well to remember that they can’t put free speech on ice just because they find it offensive.
Corey Friedman covers public safety for The Gazette. You can reach him at 704-869-1828 or cfriedman@gastongazette.com.
