In May 2016, a pair of police officers with the New York City Police Department ticketed Shyam Patel for his car’s tinted windows in Times Square. After parking his car, Patel raised his middle finger at them in response.
The NYPD officers then approached Patel and asked for his identification. When Patel asked what crime he was suspected of committing, he alleges that one officer told him, “You cannot gesture as such…”
When Patel insisted that freedom of speech did grant him the right, Patel alleges that the officer said that he could not curse a police officer, grabbed his phone, and again demanded identification. Patel was arrested and charged of disorderly conduct and resisting arrest.
While the charges were later dropped, Patel is suing the officers for violation of his First Amendment right to free expression. No law prohibits swearing at or flipping off a police officer, and it seems clear that law enforcement were in the wrong. But Patel’s case is only the latest incident of police officers abusing the law and their positions of power to punish people critical or disrespectful of law enforcement.
In 2009, a black man returned to his home in Cambridge, Massachusetts from travels abroad to find his door tightly shut. He, along with his taxi driver, forced the door open. Soon after, police arrived to his residence to respond to a reported burglary.
It’s unclear what words exactly were exchanged, but the man was arrested for “loud and tumultuous behavior”. A report by the officer in question indicated that the man merely used harsh language and called the officer a racist.
If the circumstances were different, this incident may not have made the headlines it did—countless people of color are accused of criminal activity for walking upon their own sidewalks or entering into their own homes. But the man was Henry Louis Gates, Jr., a professor at Harvard University and friend of newly elected President Obama. The details of his arrest quickly made waves across the country.
Coverage of the incident focused on concerns of racial profiling, but it was about free speech, too. Gates was arrested not for breaking and entering, but for disorderly conduct after he used harsh language at the officer—just like Patel in New York. Civil liberties attorney Harvey Silverglate has called disorderly conduct law enforcement’s “charge of choice” for when a citizen gives lip to a cop.
These types of cases are a still regular occurrence, despite the landmark 1974 court case Lewis v. New Orleans, where the Supreme Court struck down a city ordinance that outlawed “obscene or opprobrious language toward or with reference to” a police officer. At that time, the court noted that a “properly trained police officer may reasonably be expected to exercise a higher degree of restraint” than private citizens.
Despite the Supreme Court’s clear ruling on this issue, police in Pennsylvania are using the state’s version of a “hate crime” law to prosecute multiple people who say offensive things to them when they are arrested. These laws are intended to protect the vulnerable, but are instead being wielded as a tool by powerful government entities.
Robbie Sanderson, a 52 year old black man, was arrested for retail theft near Pittsburgh in September 2016. During his arrest, he called the police “Nazis” and “skinheads”, and said that “all you cops just shoot people for no reason.” He was charged with felony ethnic intimidation.
Later that year, Senatta Amoroso became agitated at a police station, and was arrested for disorderly conduct and knocked to the ground. According to the ACLU, she yelled while handcuffed in a jail cell: “Death to all you white bitches. I’m going to kill all you white bitches. I hope ISIS kills all you white bitches.” Her six charges included a felony assault charge for hitting an officer in the arm and felony ethnic intimidation.
Sanderson and Amoroso’s cases are just two of many of Pennsylvania law enforcement agents slapping disrespectful arrestees with “hate crime” charges. These people yelled speech that officers found offensive, but they were handcuffed and posed no physical threat to anyone.
Pennsylvania’s “ethnic intimidation” charge works similarly to “hate crime” laws in other states, which generally enhance penalties for perpetrators when victims were targeted for discrimanatory reasons. (“Hate speech” laws technically do not exist in the United States.) Although hate crimes statutes were enacted to protect minorities, they can and are being enforced to protect powerful groups like police.
Nadine Strossen, a professor at New York Law School who was previously president of the ACLU, is not surprised that police are abusing “hate crime” laws to punish disrespect. She thinks these cases, in New York, Massachusetts, and Pennsylvania, all show the same pattern of such laws being wielded against the people they were intended to protect—minorities, and people who lack political power.
She noted that during the civil rights movement, police would charge people protesting injustice with whatever they could—with “resisting arrest”, “disorderly conduct”, or “fighting words”, all of which Strossen calls “catch-all” crimes.
Strossen thinks that the way police abuse “hate crime” laws reveals the inherent problematic nature of legislation that attempts to single out specific identities. “There’s this hydrologic pressure once you have any hate crime or hate speech law. Additional pressures to expand this definition emerge, until the question becomes: ‘Who is not included?'”
In Strossen’s new book, HATE: Why We Should Resist It with Free Speech, not Censorship, she argues that hate speech laws in many European countries have ended up stifling the speech of the vulnerable populations they are intended to protect. She cautions that these recent examples show how hate crime laws can potentially be used for similar purposes in the United States, and that pushing for hate speech laws can backfire.
While the first hate crime laws in the United States were targeted to race and religion, they have expanded to include other categories like gender and sexual orientation. There is concern that powerful groups like police officers are co-opting these laws to shield themselves from scrutiny or criticism. It’s a pattern not unique to the United States—she referenced a recent proposal in South Africa that considered adding “occupation” to a list of protected classes. “Could this include police and politicians, and government officials?”
Some U.S. policymakers are already aiming to officially establish police as a “protected” class of people. This May, the House of Representatives passed the Protect and Serve Act, which would make assaulting a police officer a federal crime. The Senate’s version of this bill even frames attacks on police as federal hate crimes.
These legislative efforts at the federal level follow on the heels of so-called “Blue Lives Matter” bills already passed in states including Kentucky and Louisiana. And while the federal bill applies to physical attacks on police, the state level laws have been enforced upon mere language hostile to police.
During an arrest on unrelated charges in 2016, a man in New Orleans yelled insults at officers and was slapped with additional charges. In a post about this incident, the ACLU of Louisiana wrote that “While racist, sexist, and other similar language may show a lack of respect for law enforcement, it is the job of the police to protect even the rights of those whose opinions they don’t share.”
These bills are not only unnecessary (attacking police officers is already a crime) but also actively harmful.
“The point is clear, especially with regards to the adoption of hate crime statute frameworks: to reinforce the myth of the police as vulnerable and embattled,” Natasha Lennard wrote about “the Protect and Serve Act” for The Intercept.
Recent incidents in Pennsylvania, New York, and Louisiana are part of a long and disturbing history of police abusing the law to punish speech they find unfavorable. It’s deeply concerning for free expression that police feel empowered to add additional charges to arrestees because of the words that they yell while being handcuffed, and legislation that makes police a protected class only amplifies the police’s ability to silence dissent and intimidate critics.
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