The actions of Harry at the race, while distasteful, were under the protection of at least three clauses of the First Amendment. The Amendment indicates that Congress (and by 14th Amendment extension, the States) can pass no law abridging the freedom of speech, press or assembly. Harry employed each of these methods of communication in his protest. At no time did Harry transcend the bounds of any limitations set upon these rights by the Supreme Court.
One might be tempted to argue that Harry’s action and words constituted an exception to the free speech doctrine. In Schenk v. United States, (1919) the Supreme Court ruled that speech with the purpose of causing immediate harm (such as falsely yelling “fire” in a crowded theater) is not protected under the first amendment. Even though this is the case, in Harry’s example this limitation is not applicable, since his words were not causing a situation of imminent or “clear and present danger” that is required to meet the free speech exception. (Schenk…1919)
Harry was in a public place, and his speech and slogans did contain some profanity. It is possible that he was violating some local ordinance regarding obscenity in public, but he was not arrested or charged with such a violation. As the obscenities were used to convey a political point of view, it is unlikely that such an arrest would lead to a conviction that would withstand First Amendment scrutiny in any case.
While Harry’s speech did agitate some people, it fell well short of any instigation that could be argued as inciting a riot. The crowd did not turn on him; threaten his safety, or the safety of others at the event. In Cuffley v. Mickes, (1999) a municipality attempted to deny the right to assemble to a chapter of the KKK. In that case, the court reiterated that speech and assembly cannot be denied to individuals and groups based on the unpopularity of their message. This case would apply to Harry as well, as he was denouncing cancer doctors during an event designated to promote awareness of juvenile cancer cases.
The circumstances surrounding Harry’s arrest are what makes this incident most suspicious. The officer claims that the arrest was made on the grounds of jaywalking. In most municipalities, such an offence is subject to a ticket and fine, not arrest. There is no indication that Harry resisted arrest, or gave the officer any justification for placing him under arrest. Furthermore, the arrest was made without a warrant (a nominal Fourth Amendment violation), and given that he was released without being charged, the probable cause for the arrest was unlikely to be satisfied. The officer telling Harry that “you’ve said your piece” indicates knowledge of the nature of the situation on the part of the officer, calling further into question his later action in arresting Harry for an act he had already committed a number of times without provoking any response from the officer.
While the officer may have had public order and common sense as motives, his actions represent a clear violation of the protections guaranteed by the First Amendment.
Cuffley v. Mickes, 208 F.3d 702, 707 (1999)
Schenck v. United States, 249 U.S. 47 (1919)
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