-Caveat Lector- >From ChiTrib
}}}>Begin http://chicagotribune.com/news/printedition/chi-0202240036feb24.story >From the Chicago Tribune Silencing dissent near ground zero Steve Chapman February 24, 2002 William Harvey has a publicist's uncanny knack for knowing how and where to place a message to make sure it gets the maximum response from an interested audience. But Harvey is not a publicist. He's an opinionated New Yorker whose talent for communication has earned him a criminal indictment. On Oct. 4, just a few weeks after the terrorist attacks on New York City and Washington, D.C., he showed up in military fatigues on a corner not far from ground zero. He was carrying a sign with Osama bin Laden superimposed over the World Trade Center buildings and handing out leaflets setting forth his belief that "America is getting paid back for what it's doing to Islamic countries." A crowd quickly gathered on the sidewalk around him, and it didn't consist of well- wishers. With memories of the collapsing towers still painfully vivid, passersby screamed obscenities, demanded that he be locked up, and even threatened to kill him. A police officer surveyed the scene and placed him under arrest. Harvey was charged with disorderly conduct. Why? Because in the view of the officer, he deliberately "obstructed vehicular and pedestrian traffic." The Manhattan district attorney's office decided to pursue the case, and earlier this month, a county judge rejected Harvey's claim that he was fully within his constitutional rights. He's scheduled to go on trial in April. The defendant says he is being punished merely for expressing unpopular views in a public place. The judge, however, insists that his views are not at issue. "It is the reaction which speech engenders, not the content of the speech, that is the heart of disorderly conduct," he declared. It's reasonable to assume, said the judge, that he knew he was going to create "public inconvenience, annoyance or alarm." By his thinking, if someone becomes disorderly because he's angry over what Harvey said, then Harvey rather than his listener is in violation of the law. But the 1st Amendment does not protect Harvey's right to say only things that won't upset anyone, or to say them only in places where no one will care enough to stop to listen. And it's not needed to assure the freedom of Americans to call Osama bin Laden an evil terrorist whose actions cannot possibly be justified. People with that view (which includes me) don't have to worry about police and prosecutors coming after them. No, the constitutional mandate was created specifically to safeguard opinions that most of us despise and many of us would like to silence. It was meant to uphold the minority's right to speak, especially in the face of majority opposition--no matter how stupid the minority or how vehement the majority. Harvey's indictment, however, is based on the assumption that listeners have a right not to hear anything that may throw them into a fury. If getting in the way of pedestrian traffic is a crime, of course, it's not just Harvey but his disgruntled listeners who are guilty. But the police apparently didn't arrest any of the others. And it's impossible to believe that the cop would have arrested Harvey if he had drawn a crowd by denouncing bin Laden. "It's a heckler's veto," says UCLA law professor Eugene Volokh. "Anytime I threaten a guy, he gets arrested and I don't." But the heckler's veto has been rejected by the Supreme Court over and over, in cases where the threat to public order was far greater than it was this time. In a 1949 case, for example, a man was arrested for disorderly conduct after delivering a speech so inflammatory it produced disturbances in a crowd of some 1,000 people outside the Chicago auditorium where he was speaking. But the court threw out his conviction. "A function of free speech is to invite dispute," wrote Justice William O. Douglas then. "That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest." That opinion could have been written as a direct rebuke of Harvey's prosecution. The fact that this incident took place in wartime doesn't give the authorities any more power to silence dissent. Nothing Harvey did created the suggestion that he was bent on terrorism. All he was doing was challenging the wisdom of American policies. That's the sort of message that is especially important to hear at a time when the public is so united in believing we're in the right. If we really are in the right, we can certainly survive the criticisms of people like William Harvey. And someday, when we're in the wrong, we may need someone like him to let us know. ---------- E-mail: [EMAIL PROTECTED] Copyright © 2002, Chicago Tribune Improved archives! Searching Chicagotribune.com archives back to 1985 is cheaper and easier than ever. 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