A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purposes when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. —Justice William O. Douglas, Terminiello v. Chicago (1949)
Detective Nemesio Rodriguez, shield number 07778, filed the following report in New York City’s Criminal Court on October 4, 2001, in the case of William Harvey:
“Deponent [detective Rodriguez] observed the defendant standing on the corner at . . . Nassau Street and Maiden Lane . . . while dressed in army fatigues . . . Holding a sign with the world trade center towers on it with Osama bin Laden’s face superimposed on the picture of the Towers. . . . The Defendant was holding out leaflets to passersby in the area. . . .
“The Defendant’s further actions caused approximately 60 people to gather around the Defendant on said sidewalk while the crowd was screaming: FUCK THIS GUY, LOCK THAT FUCKING GUY UP BEFORE I KILL HIM.”
Ending his report, Detective Rodriguez further explained that “the Defendant stated in substance to the deponent: AMERICA IS GETTING PAID BACK FOR WHAT IT’S DOING TO ISLAMIC COUNTRIES.”
William Harvey was charged with one count of disorderly conduct—PL240.20 (5) under the statute. Maximum penalty: 15 days in prison.
As Tom Perrotta reported in the New York Law Journal (February 1, 2002), Harvey appeared before Judge Neil Ross in Manhattan Criminal Court. He was and still is represented by Thomas O’Brien, of the Legal Aid Society’s special litigation unit, who moved for dismissal of the case on First Amendment grounds, among other clearly applicable reasons.
Astonishingly, Judge Ross—instead of granting dismissal and sending the assistant D.A. back to Robert Morgenthau with a copy of the First Amendment—denied the motion to dismiss “in its entirety” on January 11, 2002.
This is yet another illustration of the diminishing of constitutional rights around the country in the aftermath of the Bush-Ashcroft USA Patriot Act and the cowardice of Congress. Now—in this very city—we have the disavowal of United States Supreme Court free-speech decisions by a criminal-court judge.
Judge Ross had before him Thomas O’Brien’s memorandum of law, an analysis that reflects how high the quality of Legal Aid representation can be. It was Sir Rudy Giuliani who cut the Legal Aid Society’s budget and limited its scope. But not surprisingly, Sir Rudy lost 27 of the 31 First Amendment cases brought against him during his reign, indicating his constitutional expertise.
O’Brien pointed out in his memorandum that the section of the statute that brought Harvey before Judge Ross “solely covers the obstruction of traffic: ‘A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance, or recklessly creating a risk thereof, he obstructs vehicular or pedestrian traffic.’ ”
That section of the law—contrary to the prosecution’s argument—does not say, “or causes others to obstruct.”
But let us suppose the 60 spectators who wanted to fuck or kill Mr. Harvey had experienced the acute “public inconvenience or annoyance” that Harvey was charged with causing.
In Terminiello v. Chicago, a landmark Supreme Court First Amendment decision Judge Ross surely read while in law school, Justice William O. Douglas ruled that freedom of speech is protected “unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. . . . There is no room under our Constitution for a more restrictive view.” (Emphasis added.)
Furthermore, if there was indeed an obstruction of traffic, how come—as O’Brien asked this judge—there was no police order to disperse the 60 passionate patriots? As O’Brien noted: “The police instead arrested the object of the mob’s displeasure, and the prosecution then charged him with disorderly conduct because other persons threatened to become disorderly.”
As Donna Lieberman, executive director of the New York Civil Liberties Union, says, “That’s an officially sanctioned heckler’s veto, which the First Amendment just doesn’t allow.”
Thomas O’Brien laid out for Judge Ross a series of New York State and U.S. Supreme Court decisions that declare, as in Street v. New York (1969): “It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”
And O’Brien emphasized: “There is absolutely no indication . . . that it was anything but the content of Mr. Harvey’s speech that motivated the crowd or the police to suppress it.”
But Judge Ross, turning Terminiello and other court decisions on their heads, said, in refusing to dismiss the case: “It is the reaction which speech engenders, not the content of the speech, that is the heart of disorderly conduct. . . . The defendant chose to disseminate his message at a location near ‘ground zero’ at a time shortly after September 11. . . . At the very least, he was aware of and consciously disregarded a substantial and unjustifiable risk that public inconvenience, annoyance, or alarm would result.”
Where does Judge Ross believe Harvey should have disseminated this particular message? At 2 a.m. in a boat on the Hudson River?
In Terminiello, a suspended Catholic priest, Arthur Terminiello, had delivered remarks against blacks, Jews, and Franklin Roosevelt that so enraged opponents in a meeting hall that its windows and back door were broken “by a surging, howling mob that hurled epithets at those who would enter and tried to tear their clothes off.”
Justice William O. Douglas ruled that Terminiello’s inflammatory language did not make him guilty of disorderly conduct, because “speech . . . may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”
Judge Ross ought to sue whatever law school he attended for return of his tuition. And what does District Attorney Robert Morgenthau have to say? The trial is set for April 25.