The “War On Cops” Is A War On The 1st Amendment

Sept. 21, 2015 (Mimesis Law) — Did you know that falsely shouting fire in a crowded theater is illegal? You may have missed this legal tidbit since there are still two or three pundits out there who haven’t used this example to show that the 1st Amendment is not absolute. This not-so-free speech scenario was created by the time-honored Supreme Court Justice Oliver Wendell Holmes. He remains “time-honored” despite getting the ruling in Schenck v. United States all kinds of wrong.

While the “shouting fire in a crowded theater” hypothetical from Holmes’ 1919 decision has woven its way into the legal framework of 1st Amendment jurisprudence, the actual ruling in Schenck has been largely forgotten. Although it was overturned in 1969 in Brandenburg v. Ohio, the World War I era case was a huge victory for government censorship. As Popehat has summarized,

Holmes’ famous quote comes in the context of a series of early 1919 Supreme Court decisions in which he endorsed government censorship of wartime dissent — dissent that is now clearly protected by subsequent First Amendment authority.

The famous bit of dicta from Schenck seems to find its way into the conversation any time someone advocates cutting another corner off of the 1st Amendment. Which is exactly what Oliver Wendell Holmes did when he wrote the decision.

When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.

Ahhh, I forgot the first rule of civil rights. They go away in times of “war.” Schenck lost his right to free speech during an actual war, just as inner cities lost so many of their rights during the so called “war” on drugs. And now, we are seeing the loss of 1st Amendment rights during the fictitious “war on police.”

Last month, a Staten Island mother sued the City of New York on behalf of her son. In her suit, she alleged that the NYPD had violated her son’s civil rights by falsely arresting and imprisoning him. The son’s “crimes”?

On Dec. 23, 2014, just three days after a gunman fatally ambushed Officers Rafael Ramos and Wenjian Liu as they sat in their squad car, Yasin Shearin, then a 10th grade student at Concord High School, posted “Let’s Kill the Cops,” on his Facebook page, next to an emoji of a police officer and a gun, police said.

When Shearin made that Facebook post, he was 16 years old. Just a kid. But we can’t forget about the war on cops. And in times of war, loose lips sink ships, right? Although the legality of Shearin’s action escaped the notice of numerous government lawyers, a Brooklyn grand jury got it right and found that Shearin had committed no crime. The charges against him were dismissed.

Was his post wise? No. Was it mature? No. But you would probably have room to spare on a cocktail napkin listing all the times 16 year boys have done anything that combined wisdom and maturity. Of course the Facebook post was foolish. But it was not criminal and the NYPD knew it. But they put a 16-year-old kid in jail anyways.

Last week, we witnessed the absurd arrests of two teenaged boys, Ahmed Mohamed, 14, and an unnamed 16 year old. These two masterminds committed the heinous crimes of being Muslim bringing a clock to school and being black jaywalking (respectively). There is a clear epidemic in this country of police abusing the people they are supposed to serve. If there is an age below which this abuse will not extend, we have not seen it.

The NYPD could have acted like adults and recognized that Shearin’s post was merely a stupid post by a teenager. They could have kept the audience of his post limited to Shearin’s Facebook friends. But if the adults had acted like adults, how would the rest of us know that we better not get too free with our freedom of speech?

Unlike cases where cops are the subject of investigation, the press was welcomed into this case with open arms so that the public would know that posting a comment like “Let’s Kill The Cops” on Facebook might get you arrested.

But isn’t arresting someone who has committed no crime illegal in and of itself? Yes.Yes it is.

But then again, this is the NYPD. The same police department that continues to advocate a “stop and frisk” policy that blatantly violates the 4th Amendment. This is the same force that repeatedly tramples on people’s rights to remain silent or seek the counsel of an attorney. Is it any surprise that a department that willingly violates many of our more clearly defined constitutional rights has no problem violating the somewhat murkier protections of the 1st Amendment?

But how unclear are those protections? Shearin did not falsely shout fire in a theater. He posted a tasteless comment to Facebook. What if Shearin had said let’s kill the Muslims? What if he had said let’s kill the gays? We can be certain that the cops would have had no problem applying the law correctly to those far more common examples.

But Shearin is just a powerless black kid, a demographic often the target of police abuse and misconduct. What of an example from a group from my hometown, Tallahassee. Dead Prez, while not reaching super stardom, definitely holds a place of reverence among fans of true hip hop. In one of their most direct protest songs, “Fuck The Law,” the duo takes a shot at some other members of the criminal justice system.

Kiss my black ass. Nail the judges

Hang the lawyers. Ride for justice

I just happen to be one of those lawyers the song implores its listeners to hang. But unlike the police, I have a certain sense of self-awareness. I recognize that our criminal justice system is incredibly broken, and I understand that defense lawyers like myself shoulder some of the responsibility for that. I understand that there are a multitude of reasons why the two black men who make up Dead Prez would write a song about meeting a racist and violent system in kind with violence. But, most importantly, I recognize (unlike the cops, prosecutors, and the judges who presided over Shearin’s case) that the 1st Amendment has nothing to do with my or anyone’s feelings.

For the police, the law is secondary to their brand of order. And a large part of that “order” is unequivocal respect for the badge. We can exercise whatever rights we want, as long as we don’t step out of line while doing so. Don’t forget, there is a war on.

Share this: Reddit

Email

Print

Facebook

LinkedIn

Google

Twitter

