If I am not for myself, then who will be for me? And if I am only for myself, then what am I? And if not now, when?
-- Rabbi Hillel
The whole Gates thing has gotten to be a bit lame -- drinking beer with the President and Vice President? really? But, it is hard not to think about the whole thing. One value of it all is that on some level it is pretty petty -- charges dropped and so forth -- while on another, it remains very important. Deep but wide, you might say. It also has many aspects. Thus, many remind that related police overreaching can be race neutral. Though we have had (including in the news -- the complications dripping out long after assumptions are made) a lot of kneejerk reactions, some on both sides realize this.
Race clearly was a factor. But, race can be a factor by various means. Prof. Gates has examined race in his scholarship, but the underlining concerns and doubts particularly arose after a long trip (from Asia!), when he probably was particularly tired. He did not expect to be interrupted by an officer at his own home. Overall, it would amount to one of those times when you are not at your best. "Fighting words" cases, related to "disturbing the peace" and so forth, tend to be of this sort. If we ignore this, a false and artificial view will arise.
Over appellant's objection, the trial court excluded, as immaterial, testimony relating to appellant's mission "to preach the true facts of the Bible," his treatment at the hands of the crowd, and the alleged neglect of duty on the part of the police. This action was approved by the court below, which held that neither provocation nor the truth of the utterance would constitute a defense to the charge.
-- Chaplinsky v. New Hampshire
This 1942 case unanimously put "fighting words" into the category of speech thought not to include constitutional problems, including "lewd and obscene, the profane, the libelous," all of which later was deemed to have many of them. What was the fighting words here? "You are a God damned racketeer" and "a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists," with the inclusion of "God" being denied by the defendant. What is this context that we were to ignore? An angry crowd not appreciating his preaching, one that allegedly beat him and threatened further violence, the police targeting him personally.
Time made the Supreme Court more wary about arrests based on "fighting words," particularly when directly involving members of the police. As Justice Powell noted:
The words may well have conveyed anger and frustration without provoking a violent reaction from the officer. Moreover, as noted in my previous concurrence, a properly trained officer may reasonably be expected to "exercise a higher degree of restraint" than the average citizen, and thus be less likely to respond belligerently to "fighting words." 408 U.S. 913 . See Model Penal Code 250.1, Comment 4 (Tent. Draft No. 13, 1961). ...
The present type of ordinance tends to be invoked only where there is no other valid basis for arresting an objectionable or suspicious person. The opportunity for abuse, especially where a statute has received a virtually open-ended interpretation, is self-evident.
We have two themes here as well, putting aside the matter of the home (even in a more public place, the law's application here is very dubious): the officer should more reasonably be able to handle stressed out civilians (even those who we put out as role models -- Gates after all was in effect "off duty") and arresting someone in this context leaves open much opportunity of abuse. All the details, from the hazy police report (which spoke of possible "suitcases") down, underline that due care should be performed here. This case involved race, the first one religion, another can be yet something else. We need to think big here.
If there be a "teachable moment," it is about all types of honest misunderstandings and so forth. Obama's original answer had that sort of component though it did have something of a race focus. That is probably too limiting.