Viral videos of a confrontation in Times Square involving a group of men and NYPD officers on Jan. 27 have been generating controversy and discussion.
The first videos depicted a rapidly deteriorating scene in which a group of young men set upon two members of the NYPD after being told to move.
Longer-running videos and audio later showed the crowd dispersing and then police moving in to make an arrest after one of the men insulted them.
“All Things Considered” host Sean Carlson recently discussed the case with Pace University Law School professor Ben Gershman. The former prosecutor says the sequence of events – an insult apparently directed at police and the police’s subsequent reaction, followed by chaos – could matter in a courtroom down the road.
Here is a transcript of their conversation, which was edited for length and clarity.
Carlson: Professor Gershman, welcome to “All Things Considered.”
Gershman: Thank you, Sean.
The longer video indicates that police seemed to react after being criticized. One of the dispersing men was plainly heard to say in Spanish, “he looks like Ugly Betty,” a reference to the telenovela character, and then he was arrested. Why does this matter?
Well, sure, it matters. It matters as a matter of constitutional law. It matters under the First Amendment. The courts have said over and over again that you can use words, even harsh words, insults, vile language, as long as there’s no public disorder going on. The law is very clear. The police are not allowed to respond with force. I mean, the principle is very clear. People have a right to express themselves, even in very strong language, and even in language that is harsh and critical and offensive.
Now, legally speaking, professor, is it incumbent upon police and other first responders to just take it when it comes to verbal insults? Is there a limit?
Yes, Sean. I mean, the police can respond and say, “don’t talk like that.” But again, the police have to take comments and words and criticism for what they are. They can’t use police force and retaliate when they don’t like what somebody is saying. Free speech is a guarantee that we all have, and that’s what the Constitution mandates.
And the police just have to know this. And there is case after case after case where the courts have said exactly that. The principle is, you can use harsh, derogatory, profane words to police officers, and they may not respond.
You mentioned other situations and precedent for this. Recently, there was a case – a decision out of Buffalo – where a federal appeals court decided in favor of a man who was arrested after shouting a crude insult at a cop. Does that case have any relevance here?
Well, sure. Exactly right. The individual shouted a crude response when a police officer driving an automobile late at night, with lights off, almost hit two young women who were crossing the street. The man shouted, “turn your lights on, you …” — and I won’t say the word that he used.
But the police officer stopped and gave him a summons for shouting in a loud voice. I mean, you know, it was clear that the police officer did not appreciate what this man said and gave him a summons. And the Second Circuit Court of Appeals threw the case out and said, this is a violation of this individual’s right to engage in free speech.
All that said, several people do face serious charges in the Times Square case, including assault of police officers and obstructing justice. Now, we raised these First Amendment issues, but that’s not really going to absolve anyone of blame, or will it? What is your take?
Well, you know, look, I’m sure the lawyers are going to argue that there’s a doctrine we have in our constitutional criminal procedure called the “fruit of the poison tree.” What that means is, if the police behave unlawfully, that behavior might taint the subsequent actions that followed. But I don’t know that if the police behaved unlawfully here in terms of the response following that vile remark, whether you could call that a wrongful situation that would in a way require that the court to ignore or not consider the subsequent events.
I know that the lawyers for these individuals will make some kind of an argument like that. Whether that argument wins the day or not, it’s going to be up to a court.
That was Professor Ben Gershman, Pace Law School, a former prosecutor. We should add that the Manhattan DA’s office declined to comment for our interview. Professor Gershman, thanks for coming on.
Thank you, Sean.
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