Dissent at ground zero

March 01, 2002|By Steve Chapman

CHICAGO -- 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 Mr. 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 and Washington, 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, passers-by 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.

Mr. 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 Mr. Harvey is 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 Mr. Harvey said, then Mr. Harvey rather than his listener is in violation of the law.

But the First Amendment does not protect Mr. 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 ensure the freedom of Americans to call 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.

Mr. 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 Mr. 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 Mr. 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 in which the threat to public order was far greater than it was this time.

That this incident took place in wartime doesn't give the authorities any more power to silence dissent. Nothing Mr. 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.

Steve Chapman is a columnist for the Chicago Tribune, a Tribune publishing newspaper.

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