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If I'm understanding the article correctly, these two guys were trying to cause a disturbance. Which is different from being picked up for telling old jokes.

The First Amendment does include the right to cause a stir. There is, classically, not a right to shout "Fire!" in a crowded theater. But there is, I think, a right to tell lawyer jokes in a crowded courthouse.

As for civil liberties vs. civil rights: well, the only difference I can really stick to after some thought is that "civil liberties" are associated with the right to engage in unusual or unpopular behavior while "civil rights" are associated with the right to be free from racial or other discrimination. Obviously these categories do overlap.

There is, of course, the 'fighting words' exception, but as I understand it the current parsing of that phrase is that the speech has to be personally insulting - which would not apply in the case of generalized comments about lawyers.

...and in this do I recognize the author of a Chelsea House title on the First Amendment?

'I didn't realize one could be arrested for telling jokes. Martha, any comments on the civil rights implications?'

You want to look into New Labour's 'hate speech' laws. Absolute cheek and dangerous, but welcomed, no doubt by the dour, control freak, class-chippy northerners and jocks who currently run England. Not to mention the touchy Muslims, who's electoral seduction it was mainly drafted for.

Yeah, yeah, that's what I thought. So I guess I'm just sort of curious how somebody can walk into a courthouse and tell the cops there to arrest people for being annoying. I mean, could I do that, or do you have to be someone special to claim such a privilege?

The hate-crime/speech issue is interesting and I'd be curious to hear opinions of it here assuming we can do that without freaking out. How does this new "hate-" designation alter 1st amendment and civil rights/liberties issues? Does it really serve any purpose?

How does this new "hate-" designation alter 1st amendment and civil rights/liberties issues? Does it really serve any purpose?

I don't really have the time to freak out about this, which I'm sure will be an enormous relief to everyone, but for what it's worth I think calibrating criminal punishment by motive rather than deed is bad practice, and privileging certain types of motive over others based (as it ultimately must be) on political considerations leads to arbitrary sentencing.

How does this new "hate-" designation alter 1st amendment and civil rights/liberties issues?

I've followed dicussion of the proposed British rules both at the Volokh's and at Harry's Place. Points that stuck in my mind were that the laws are a good example of how one bad law can justify another and that supporting arguments for them are suspiciously absent.

Of course neither the racial hatred law nor the proposed religious hatred law would ever pass First Amendment scrutiny in this country, so this usually turns into a "lookit the furriners actin' funny" story.

In the US, the closest we've seen have been what Alan refers to, the raising of penalties for already-existing crimes if "hatred" can been shown to be the crimes inspiration. I'm viscerally against this, though do think that the argument that "-with-intent-to-sell" laws form a precedent has some weight.

Some thoughts on the question from Orcinus here.

It's a difficult question. I think I'll hold off commenting myself for a while.

A good defense of HC law -- thanks for the link.

It's a difficult question.

Before this gets too muddy, it's important to point out that it's not "a question" — there are two related debates going on here, and the one in the US revolves around people commiting acts that are already criminal, like vandalism or arson. The one in the UK revolves around criminalizing currently protected speech.

I suspect that most folks here would acknowledge the US question to be a difficult one. The UK one is obviously more clear-cut, which is why I've been looking for defenses of the laws -- I just can't wrap my head about how they could be thought a good idea.

The First Amendment does include the right to cause a stir.

The First Amendment permits you to stand in a public line and insult people?

I know that lawyers are supposed to have thick skins and that not a single of them deserves to be treated like a human being, but still...

The jokers were asked to stop and they refused. I fail to see how their behavior is protected by the First Amendment.

Bobby, it's a tangled constitutional issue. The original 'fighting words' doctrine was laid down in 1942's Chaplinsky vs. New Hampshire:

"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

However, since that time, the Supreme Court has declined to uphold any 'fighting words' conviction, and has steadily narrowed the definition of the term to include less and less (if the original, somewhat vague Chaplinsky wording had held, it would have embraced a disturbingly large amount of speech). In Terminiello vs. Chicago (1949) urgency was added: fighting words are "likely to produce a clear and present danger of a serious intolerable evil that rises above mere inconvenience or annoyance" (i.e. their mere 'tendency' was no longer enough). Subsequent decisions have similarly ruled that fighting words must involve a strong likelihood of an immediate breach of the peace - to "reasonably incite the average person to retaliate" - and that they must be personally directed at someone, and not generalized statements expressing a point of view (there was a famous case in which a Vietnam protestor was convicted, then acquitted, of wearing a jacket saying 'fuck the draft'. Whether or not this could be regarded as offensive, it was not reasonably likely to provoke an individual).

Bear in mind of course that all this is about speech so far - if someone obstructs a public right of way or inflicts physical injury in addition to any offensive expression, we're in different territory.

So a man goes into the movie theater (which, although it may be private property, I'm assuming is considered a public venue). A few minutes into the feature he loudly announces, This movie sucks. After being asked by the management and his fellow movie-goers to cease he continues the behavior. By having him removed - or arrested if he resists - has the management (or the government with the police as its agents) violated his First Amendment rights?

This is where the distinction between speech and conduct comes in. In your example, the offensive part of the behavior isn't so much the content of the speech as the fact that it's interrupting the movie.

Also important is the distinction between a private movie theater and a public event such as a City Council meeting -- where a person could still be ejected or arrested for shouting, but probably not for wearing a button or T-shirt with a political message.

Try these:

- U.S. v. Kokinda

- Int'l Society for Krishna Consciousness v. Lee

- L.A. Alliance v. City of L.A.

- Village of Schaumburg v. Citizens for a Better Environment

- R.A.V. v. St. Paul

- Renton v. Playtime Theatres

Now, most of these cases are a little stale & maybe Alan can update some of them but they do give an idea of the way the law has developed.

Serious question. If I'm walking down the street and someone insults me, can I walk up to a police officer and have him or her arrested? If not, why was it appropriate in this case?

Or maybe more to the point, let's say I'm in a long line at the grocery store and the guy's right behind me, so I have to endure it for a while. Let's say he's telling jokes about writers or programmers. Is that different? Can I call that a "disturbance"? Because if I can get someone arrested for that, that's good to know.

I suspect the sidewalk vs. grocery line difference is the difference between a public forum and a private forum. I understand that the courthouse case probably falls under the latter, despite being government-owned.

So a man goes into the movie theater [etc.]

There is also the distinction between restrictions on content and restrictions on time, manner and place. Generally speaking, the First Amendment guarantees your right to say that a movie sucks, but it does not necessarily guarantee that you may say this at any time, in any way, in any location. The principle of free speech is strongly protected, but the law is allowed to take context into account when drawing up rules of reasonable behavior.

Surely the movie-theater example would be covered under the "disorderly conduct" statute which I assume all states have in one form or another.

Based on some of the opinions Martha supplied, a disorderly conduct statute (time, manner, and place) could apply to that government property where the government is required to act as a responsible property owner. Although the city sidewalk where the public queues to access the courthouse seems to be a public forum, it may very well not be.

I think, as Bobby suggests, that the Kokinda case (if it's still good law -- I admit I haven't checked recent cases) might apply to the courthouse sidewalk: it's public property but not a public forum -- those are different things. The managers of the property are entitled to prescribe a time, place and manner for the expression of opinion so that the functions of the courthouse are not disrupted. On the other hand, it definitely is a public accommodation, so the public is protected there by laws against discrimination, requiring disability access, etc.

Does that help?

Legal theory aside, no one has been able to tell me under which circumstances I could go out tomorrow and have someone arrested for telling jokes about men with longish brown hair. The cops and the lawyer in question in this case seem to have been quite sure of themselves, so I just keep wondering what is the obvious legal distinction that makes it okay for them to have arrested these people.

I don't want to seem willfully obtuse, but I really don't understand what gave that lawyer the right to have them arrested.

On the other hand, maybe the problem really does have to do with the uncertain nature of the space these people were in. The sidewalk might be something like an extension of the courthouse, seeing as how everyone was waiting to get into said courthouse, and in that sense it might be enough like private property for the cinema rule to apply to it.

If someone makes a great nuisance of themselves in a movie theater, they will eventually be asked to leave. If that doesn't work, a security guard will try to escort them out. If that doesn't work, by then the person will certainly have created a genuine disturbance by any reasonable definition, and may well have assaulted someone besides. At that point, an arrest is obviously warranted.

So the person is ultimately arrested not for making a joke or annoying people, but for refusing to comply with the legitimate wishes of the owners of the property they are on. The same could presumably happen within a courthouse. But on the sidewalk? What are the cops going to do, tell them they can't be on that particular part of the sidewalk and order them, for instance, to cross the street?

The problem, then, is that the intermediary stage of insisting that the person leave, and giving the person a chance either to comply or to escalate the situation to the point of giving the police a clear reason to arrest them, was not available in this situation.

And, well, if that's not considered a good enough criterion on which to base the definition of public space, then I think it should be. Otherwise the whole question is too complex for even specialists to nail down. And it seems to me that such ambiguity never fails to be abused.

Kind of depends if the sidewalk was on courthouse property or if it was the public sidewalk. Hard to tell about that from the news account.

Re: the right to express opinions on public sidewalks, see Shuttlesworth v. City of Birmingham, here and again here and here, which is still good law AFAIK.

Having just read Orcinus' impressive essay, one immediate objection springs to mind: he takes it for granted (and uses examples along this line) that motive in hate crimes can be readily ascertained. My suspicion is that this is rarely the case, and that clear-cut acts of hatred can't easily be disentangled from more mundane motives. Most of the anecdotal cases I can think of involved assault and robbery, in which the police didn't seem to have any real idea whether or not the impulse was simple avarice or something deeper - and they were guided mainly by the ethnicity of the perps and victims. This seems to me to politicize the process to an uncomfortable extent.

The crowning acheivement of the Left in social terms in the UK in the last few years is the MacPherson report which was when I realised that the slow motion coup detat against reason had finally won out. MacPherson was brought into to make an Enquiry into the Police cock up of the Steven Lawrence murder (he was stabbed to death by a gang in Eltham in 1993. The police managed to balls the case up and so, whilst everyone knows the suspects did it, they walk free to this day).
The Macpherson report (which has been instituted into Police prodecdure) states at one point--and read this carefully, and weep-- 'A Racist incident is an incident in which ONE or more people involved THINKS is a racist incident.'
That's how dangerously silly it has got in the UK.

There's a guy in downtown DC who stands on the sidewalk and shouts for hours, to no one in particular, in a voice that can be heard at least two blocks away.

I presume he could be arrested for disorderly conduct, but the cops seem to leave him alone-- perhaps because no one complains about it.

'A Racist incident is an incident in which ONE or more people involved THINKS is a racist incident.'

If I'm not mistaken, the same criterion holds in the US for sexual harassment.

Can't speak for the U.K., but in the U.S. the making of certain types of allegations can require that certain types of investigations be conducted in response. The mere fact of charges being made does not by any means determine whether the charges will be upheld after investigation. My guess would be that the apparent U.K. absurdity results from a misreading of definitions along these same lines.

My guess would be that the apparent U.K. absurdity results from a misreading of definitions along these same lines.

Never can tell, though. Sheep that grow on trees, and all that.

Sheep on trees? Huh? Heard tell they ate men long ago in the UK, but when do they grow on trees?

Sheep on trees? Huh?

I suspect that provincialism manifests itself in two distinct ways. One is the assumption that everything about a different land is exactly the same as it is here. This is perilous because it can lead you to identify strongly with parties and movements in other countries that seem to correspond with your own, without giving them the proper scrutiny. I suspect that this is at work when I (initially) sympathized with Tony Martin, and when you bristle at ROBBIE's characterization of "the Left". At its worst, it leads to the legendary Boston Irish support for the IRA and (more recently) Idaho Basque support for ETA.

The other assumption is that anything done in another land is by nature going to be foreign, and probably incomprehensible. This prevents unexamined solidarity, but brings with it a willingness to listen to strange tales of sea serpents and worse. The quote is from a wonderful line about the conquistadores in Bernard DeVoto's The Course of Empire. I'll post it when I find it.

My point, though, is that in recharacterizing Robbie's description of UK law as something that seems more reasonable, you're likely making some provincial assumptions. I prefer to err in the other direction, which is probably equally incorrect.