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October 01, 2007
The First Amendment As/And Harassment
My book, The People Out of Doors, chronicles a variety of legal contests arising from restrictions on public expression. These contests raise fundamenal First Amendment issues relating to, among other things, access to public places, the value of public expression, and the policing of public expressive activity. As the case of the tasered Florida student recently demonstrated, the Internet has opened a new window on public protest. Today, both protesters and authorities come to public protests and demonstrations armed with camcorders and other recording devices. In this video, "Reverend Billy" (a/k/a William Talen) is arrested in Union Square Park in Manhattan for conveying (through a megaphone) the words of the First Amendment. Reverend Billy and other protesters shown in the video had gathered in the park to protest proposed legal restrictions on the "Critical Mass" bike rides in Manhattan and other proposed public assembly regulations. As is typical at Critical Mass events, the police were out in force. As shown in the video, police ultimately arrested Reverend Billy. He was charged with two counts of second degree harassment -- for allegedly shouting the words of the First Amendment within close range of officers and refusing to cease that activity when ordered. The video is likely to play a central role at the trial, should there ultimately be one.
Putting aside the rather ironic nature of the charges themselves -- recitation of the First Amendment itself as harassment -- the arrest of Reverend Billy highlights some fundamental First Amendment principles. I have no doubt that this expression was annoying to the officers on the scene. Of course, the fact that the expression was deemed "annoying" or, as the prosecutor described it at a recent hearing, "obnoxious," is not a valid reason for prohibiting or punishing it. As the Supreme Court said in Terminiello v. Chicago, speech "may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." The speaker was not charged with violating any noice ordinance, or disturbing the peace, or impeding the flow of pedestrian or vehicle traffic, or "improper assembly" (one of the subjects he was in fact protesting); or uttering fighting words, or interfering with police operations. He was charged with "harassment," which under New York Law requires that the person follow another with intent to annoy, harass, or alarm, or engage in conduct with no legitimate purpose other than to threaten, intimidate, or coerce another. The harassment law seems a very odd fit; among other things, uttering the First Amendment does serve a legitimate purpose -- particularly at a protest rally.
There is, however, something more troubling about this arrest than the substance of the charge. I find the comments sections following videos like these edifying, in part because they provide some barometer (however selective) of the public's tolerance for this sort of expression. Most of the commenters seemed to find Reverend Billy's expression extremely annoying. Some invoked the general public's "right" not to hear it. Others commented that regulating such speakers is a waste of scarce police resources. One citizen even opined that Reverend Billy deserved some "jailhouse justice." On the other hand, a smaller number of commenters supported Reverend Billy's expressive activity and criticized his arrest. (I would welcome reactions from this site's readers.) The comments seem to suggest a lack of knowledge of, and respect for, principles such as the one above from Terminiello. My own research (at least anecdotally) suggests little and indeed waning public tolerance for unconventional and "annoying" expression -- at least when conveyed in public places. One of the more striking things about this episode, aside from the content of expression, is that the speaker stands accused of harassing not his fellow citizens but law enforcement officers. Should we require that officers at the scene of a protest rally have a thicker skin than, say, the ordinary citizen? Put differently, is the state, as the object of protest, entitled to the same protection from "harassment" as the general public?
Posted by Timothy Zick at October 1, 2007 12:30 PM
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Comments
This is a ridiculous arrest (assuming the facts turn out to be true). Eventually the prosecutor will come to his senses and drop the charges. Then Rev. Billy will bring a § 1983 suit and will either lose on qualified immunity grounds or win $ 1 in nominal damages.
Police increasingly are willing to remove "annoying" speakers from the streets just to get rid of them and the noise, despite knowing that the speech likely is protected, the move-along order is wrong, and that any "charges" will not stick. But because of the structure of § 1983 liability, police can do this as a way to keep people quiet without incurring any meaningful penalty.
I have heard officers describe doing gun searches they knew would not hold up, just to "get the gun off the streets," even if no charges are going to stick to the person. Some officers are now transferring this practice to "get the speech off the streets."
The problem with Terminiello is the uncertain extent to which it is overridden by, or at least in tension with, Feiner v. New York, where the Court seemed to sanction arresting the annoying speaker to quiet the angered crowd--and, it would seem to follow, the angered or "harassed" police officer. Feiner at least gives officer a reason to think that move-along orders may be proper in some circumstances, even if charges will not stick.
Posted by: Howard Wasserman at October 2, 2007 08:38 AM
Howard --
Your point about liability certainly explains some of the examples I've seen of almost surely unconstitutional, yet certainly expedient, policing of public expression.
I had always read Edwards, Cox, and Gregory as casting serious doubt on Feiner -- although I suppose those cases might have been civil rights era-specific and, in any event, did not expressly overrule Feiner.
Posted by: Tim Zick at October 2, 2007 09:43 AM
