Arrested For Speaking His Mind?, Ctd

by Chris Bodenner

A reader writes:

You asked for a legal perspective on the Gates incident.  Here are my thoughts, at least from a Maryland perspective:

Most if not all states make it a crime to engage in “disorderly conduct,” or, similarly, to fail to obey an order of a police officer reasonably meant to prevent a breach of the peace.  Generally disorderly conduct means words or actions taken with the intent to disturb another, or incite or provoke another to violence.

Speaking one’s mind, even with the use of profanity or harsh words, is not sufficient to be criminal, as speech is protected by the first amendment.  Instead, language must qualify as so-called “fighting words,” the use of which is not constitutionally protected.  The term “fighting words” means language that tends to provoke or cause an act of violence on the part of the listener.  In the words of one court, “conduct must have advocated imminent lawless action and been likely to incite a breach of the peace in order to be proscribable by the state.”  Where the accused is “not exhorting others to breach the peace”, there is no crime.

The focus here really is on the listener.  Would the language or conduct tend to provoke the listener to violence?  There is different standard for words or conduct directed to police.  Police officers are expected by law not to be as sensitive as members of the general public, and to be able to withstand certain conduct or words that ordinary citizens could not.  Courts also recognize that citizens have a right to protest police action, even emotionally or emphatically.  Again the focus is on whether the words or conduct used would incite others – officers or ordinary citizens within earshot – to react violently.

So here, the questions are:  What did Gates actually say?  If he was addressing the officer, where those statements intended to provoke the officer to react violently?  Could the statements have provokes another bystander to violence?

Of course, the decision as to whether or not a particular incident such as this amounts to a crime happens later, in court.  At the scene, practically speaking, the officer has the discretion to arrest and charge disorderly conduct as he sees fit.  That charge may or may not hold up in court, and often it doesn’t.  Realistically the officer would probably not face any backlash (unless the accused happens to be a prominent Harvard professor.)

Stupidity, Not Racism

by Chris Bodenner

Jason Zengerle writes:

As people continue to get worked up about Obama's comments on the Henry Louis Gates story, I think it's important to remember what the president didn't say. He did not call the behavior of James Crowley, the arresting officer, racist. He did call Crowley's behavior stupid. And, really, I think it's hard to reach any other conclusion when you consider that Crowley arrested Gates after he realized Gates was "breaking in" to his own home. That's stupid–and Obama's right to say so. Even if Gates did act belligerently toward Crowley, you'd hope Crowley would be professional enough not to respond by slapping cuffs on Gates and taking him down to the station. The "contempt of cop" charge–which is what these disorderly conduct charges are often nicknamed–is really nothing more than an absue of power by the cop.

Pay for Play

by Robert Wright

In what may be the sexiest video ever made by Tyler Cowen, he argues that prostitution isn't immoral. (The sexiness question aside, this is definitely the most animated I’ve ever seen Tyler—even more revved up than in his zestful interrogation of Peter Singer.) And stay tuned for the kicker at the very end: Maybe, Tyler suggests, seducing a woman is more immoral than paying her for sex. I can think of one morally serious young blogger who might agree with that.

Under His Skin?

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by Chris Bodenner

Ta-Nehisi thinks No Drama appeared especially “perturbed” by the Gates incident:

[F]or black people, this is the kind of issue that tends to cut across lines of class and politics. I would say that this is the sort of thing that angers upper middle-class black people even more than it angers anyone else, because they tend to be individuals who, by society’s lights, are very accomplished. They deeply resent being lumped in with the mass. And more than anyone they resent the whole “when you’re black, you talk to the police like this” routine. Obama has lived as a member of that class for a large portion of his adult life, or he’s had some concentrated exposure to it–the black strivers roll deep on the South Side. It’s not shocking that he was pissed.

TNC has further thoughts on the Gates incident worth reading:

It needs to be said that, though I casually threw it out there, I really have no clue whether race played a role in Gates’ arrest. It’s important to say that. I don’t know what I would have done if I were in shoes, but I don’t know that I’d assumed race. I think the decision to arrest a guy for, at worst, being rude in his own house is shockingly stupid. The thought of someone like that carrying the power of life and death is mind-boggling.

That said, the wind is leaving my sails over this one and I’m not sure why. I keep getting this “doth protest too much” vibe every time I read Gates’s interviews. It’s interesting that it took his own arrest for Gates to decide to make a doc about this. Maybe he’s had a Come To Jesus moment. Who can know? Who can really know?

I’m much more concerned over Shem Walker’s family. The dude was killed for doing what lot of would do if we saw some fool hanging out on our mother’s porch. And the taxpayers will most certainly be held to account for it. I don’t want people like that holstering guns around my kids.

Religion And Happiness, Ctd

by Patrick Appel

A reader writes:

It seems to me like a lot of the debate about happiness as a product of either secularism or religion might miss a crucial point if it fails to consider the social context. Much of the happiness dividends provided by religion seem likely to come from having a sense of belonging, community, and tradition. If you live in a religious country, you're probably going to have a greater sense of belonging if you too are religious. If you live in a place like Denmark, you probably fit in better if you're not religious. Also, it should probably be remembered that while Danes are thoroughly secular in their beliefs, the country has an established state church with widespread membership, and most Danes would consider theirs a "culturally Christian" country, so it's entirely possible that Danes are getting many of the socio-cultural benefits that come from religion (ceremonies and celebrations, continuity with inherited traditions, etc.) despite not being believers.

There's a book about the particular brand of secularism found in Scandinavia called "Society Without God: What the Least Religious Nations Can Tell Us About Contentment ". I haven't read it, but it sounds like a book that would appeal to anyone interested in the intersection between happiness, religion, and secularism.

Personally, I'm glad there's an "I'm an atheist, but…" crowd out there. I'm not a believer myself, and I have a lot of respect for Dennett as a philosopher, but the new atheist movement turns me off with rhetoric that can be disturbingly reminiscent of that used by religious fundamentalists. I wish they would focus more on forging a society more accepting of believers and non-believers alike, rather than wasting time on the age old campaign of conversion for either side. Free choice and tolerance should be the imperative.

Another reader:

I have Danish relatives and have had a strong connection to the place my whole life. I have trouble taking any survey of global happiness, especially self-reported happiness, as anything more serious than an amusing topic for cocktail party conversation (or blog chatter).  It's certainly not hard science, so I take it all with a grain of salt.  But the more one knows about Denmark, the more one suspects there really might be something to these surveys.  The country just seems to function far better than most. 

I don't think religion – or lack of religious piety – plays a significant role at all.  They're near the bottom of church-going statistics (and somewhat proud of it), but I wouldn't exactly call them atheists either.  At a a minimum, one would have to admit they are overwhelmingly culturally Christian, probably more observant of several Christian holidays than Americans.  Confirmation remains a big right of passage for many young people, perhaps even as big a deal as it is for many American Christians, perhaps even bigger.  And of course there's the state church, embedded into the constitution and financially supported by the government, alongside guarantees of freedom of religion.  As a tolerant people, they are not as a rule anti-religious, in a way many atheists are. Christianity is too much a part of their proud national tradition to evoke outright hostility, even if they are generally not devout.

The idea that low expectations plays a role is intriguing, but I think it misses the mark a bit.  I think what may be being observed is a sense of humility, that may in turn have something to do with being a part of a small society.  The world is not a place over which they can expect to exert much control, so when things go their way, they are as likely to chalk it up to luck as anything else – in public, at least. Privately, I think they actually have quite high expectations for themselves, and a deep sense of personal responsibility and self-discipline.  It's one of the reasons why a welfare state can work much better in a society like theirs.  When I've discussed the American tradition of distrust for central authority with Danes, they often remark that it is sad that we should feel that way.  They view their government not as something other, but as an embodiment of their nation as a whole, and a nation that distrusts itself is to be pitied.  So they accept high taxes.

One factor that I haven't seen discussed is the (somewhat obvious) potential for self-reporting error in these happiness surveys.  A very central part of the Danish tradition is the notion of hygge, which is probably best (but still poorly) translated as cozy.  Ideally, one's home, one's visits with others, one's dinner parties, even one's whole life, should be hygge, above all else.  To be properly Danish, a thing must be hygge.  In other words, to admit to unhappiness, would be to admit failure, or un-Danishness. Thus, the risk of self-reporting error. 

Also, I believe (reluctantly) that another possible reason for why their society functions so well (and therefore could partly explain their happiness) is the high degree of homogeneity, at least until the last twenty years or so.  One religion, one language, one race, one history and one sense of cultural identity leads to a higher degree to mutual trust.  Higher levels of immigration in recent years have challenged their common traditions, and the very definition of Danishness.  I think it's a tribute to a small but great nation that they've managed to adapt as well as they have.

Finally, in all honesty, I think a sense of humor has a lot to do with it as well.  Danes place a very high value on humor.  So maybe this survey is their little joke on the rest of us.

The Gates Answer

by Patrick Appel

The furor over Obama's answer to a question about Gates' arrest is, as Yglesias notes, utterly predictable. I'm mostly in agreement with Josh Marshall:

The political press is all atwitter over this, a bit like just after two high school kids square off for a fight but just before the punches start flying. But let's be honest: this is all about a black guy getting on the side of another black guy who got crosswise with the cops. Why would he touch such a powder keg?

The answer obviously distracts from the message, as Megan notes:

That's how a machine ranked the stories, based on reader response. The Gates story is sucking up the public's very limited attention span for health care. I was already pretty skeptical that this was going to do much good.  Outside of elections and wars, it's hard to get people to watch a presidential address at the best of times.  Late July is not the best of times.  You don't want to counterprogram a wonkathon when people can flip to "So You Think You Can Dance" or wander outside to drink in the summer evening.  Maybe it will move the poll numbers, but frankly, I'd be surprised.

It could be a rope-a-dope, the president making his critics overplay their hand once again.