Writing in Forbes, Boston civil liberties lawyer (and Reason contributor) Harvey Silverglate notes that the "fighting words" doctrine, the only remotely plausible rationale under which arresting someone for talking back to a cop could be deemed constitutional, appears to be "a dead letter." In 1942 the U.S. Supreme Court upheld the conviction of Walter Chaplinsky for violating a New Hampshire law that made it a crime to direct "any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place" or to "call him by any offensive or derisive name." Chaplinsky, a Jehovah's Witness, had been arrested for riling up a crowd in Rochester by denouncing organized religion as "a racket"; on the way to the police station, he compounded the offense by calling the city marshal "a goddamned racketeer" and "a damned Fascist," adding that "the whole government of Rochester are Fascists or agents of Fascists." Rejecting Chaplinsky's constitutional challenge, the Court declared that the First Amendment does not protect "insulting or 'fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."
But "a conviction for the use of such language has never since been upheld," Silverglate writes. Just a year later, in fact, the Court held that the word fascist, the very epithet that got Chaplinsky in trouble, was "part of the conventional give-and-take in our economic and political controversies." In subsequent cases, the Court overturned the disturbing-the-peace conviction of a suspended Catholic priest whose anti-Semitic tirade drew a violent response from a hostile crowd in Chicago and concluded that the First Amendment protects the right to wear a jacket bearing the slogan "Fuck the Draft" in the Los Angeles County Courthouse.
Even if the fighting words doctrine were alive and well, applying it to situations like Henry Louis Gates' hostile encounter with the Cambridge police would be difficult. As Silverglate notes, police officers are trained and expected to restrain themselves in the face of verbal abuse, so it's problematic to cite their possibly violent reaction to a citizen's lippiness as grounds for arresting him. Under that standard, public speech would be limited to what the most sensitive and impulsive police officers are prepared to tolerate. The Massachusetts Appeals Court addressed this very issue in a 2003 case that involved a man whose "disorderly conduct" was limited to his own property, with an audience consisting entirely of police officers (a decision I quoted in today's column about the abuse of disorderly conduct laws):
As recognized in the commentaries to the Model Penal Code, behavior that has an impact only upon members of the police force is significantly different from that affecting other citizens in at least two respects: it is an unfortunate but inherent part of a police officer's job to be in the presence of distraught individuals; and, to the extent that the theory behind criminalizing disorderly conduct rests on the tendency of the actor's conduct to provoke violence in others, "one must suppose that [police officers], employed and trained to maintain order, would be least likely to be provoked to disorderly responses."
To successfully prosecute Gates for disorderly conduct and withstand a First Amendment challenge, the Middlesex County district attorney would have had to show that civilian onlookers were on the verge of violence as a result of the professor's comments. The difficulty of making that case (along with Gates' connections) helps explain why the charge was speedily dropped. Silverglate thinks that outcome, though good for Gates, may be bad for other, less-famous citizens arrested for contempt of cop:
Had Professor Gates and his lawyers raised a First Amendment defense, the defendant almost certainly would have prevailed—if not at the trial court level, then in the appellate courts—and the scope of the "disorderly persons" statute would have been severely limited in all future citizen-police confrontations. The future use of handcuffs to penalize a citizen mouthing-off against official authority would have been, at long last, curtailed. Perhaps the common good would have been better served had the case proceeded to trial after all.