Dispatches from the Creation Wars

As the furor over the arrest of Henry Louis Gates has grown, I have repeatedly offered one simple opinion: it is no more illegal to yell at and insult a police officer than it is to yell at or insult any other citizen. The mere fact that they have the power to arrest you does not mean they can legitimately arrest you for doing something that is legal if done to anyone else. That’s why I don’t really care what Gates may have said to the cop at his house.

I don’t care if he called his mother a whore, accused him of being the worst racist who ever lived or told him he had the world’s smallest penis. That behavior may well be rude, crude, wrong, childish or whatever other adjective you’d like to offer for it, but it is not criminal. And the police know it. That’s why they quickly dropped the charges. If he had said anything that is even remotely and actually criminal, he’d still be facing those charges.

Andrew Sullivan found a legal opinion written by Alex Kozinski that is an eloquent defense of this basic right to free speech. Coincidentally, Kozinski himself was the target of the anti-free speech crowd over the last couple years because he has been a consistent and passionate advocate of a vigorous and broad First Amendment.

The case had to do with a man arrested for saying insulting things and making insulting gestures to a police officer. Here’s what he had to say in that ruling:

Defendant relies heavily on the fact that Duran was making obscene gestures toward him and yelling profanities in Spanish while traveling along a rural Arizona highway. We cannot, of course, condone Duran’s conduct; it was boorish, crass and, initially at least, unjustified. Our hard-working law enforcement officers surely deserve better treatment from members of the public. But disgraceful as Duran’s behavior may have been, it was not illegal; criticism of the police is not a crime.

[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers…

The freedom of individuals to oppose or challenge police action verbally without thereby risking arrest is one important characteristic by which we distinguish ourselves from a police state…

Thus, while police, no less than anyone else, may resent having obscene words and gestures directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.

Inarticulate and crude as Duran’s conduct may have been, it represented an expression of disapproval toward a police officer with whom he had just had a run-in. As such, it fell squarely within the protective umbrella of the First Amendment and any action to punish or deter such speech-such as stopping or hassling the speaker-is categorically prohibited by the Constitution…

No matter how peculiar, abrasive, unruly or distasteful a person’s conduct may be, it cannot justify a police stop unless it suggests that some specific crime has been, or is about to be, committed, or that there is an imminent danger to persons or property.

Quote via Balko. And a dead on accurate quote it is.