Three First Amendment Puzzles Raised by the Police Union Response to Speech Criticizing Police Conduct in Ferguson and New York City
Forthcoming, Alabama Civil Rights & Civil Liberties Law Review, 2017
31 Pages Posted: 21 Sep 2016
Date Written: September 19, 2016
In December 2014 the St. Louis Police Officers Association called on the NFL to fine five St. Louis Rams players who entered the game against the visiting Oakland Raiders in the “Hands up, don’t shoot” posture. A few days later, Patrick Lynch of the New York Patrolmen’s Benevolent Association threatened a slow down after New York City Mayor Bill de Blasio suggested that his mixed-race son Dante needed to take special care when dealing with the police. In this essay, I conclude that these responses, while formally protected by the First Amendment, are out of character with the tolerant society the First Amendment has created in other areas of American life. In particular, police unions are (i) too ready to jump into free speech controversies, (ii) too sensitive when it comes to insulting speech, and (iii) too wedded to an ineffectual patrolling of false narratives, one more prevalent in Europe, where many countries punish genocide denial, than in the United States, which is much more reluctant to assume speech is harmful merely because it is false. From a broader perspective, these incidents raise questions about the extent to which the First Amendment is genuinely colorblind.
Keywords: First Amendment, Police Unions, “Hands Up, Don’t Shoot,” Censorship, Insulting Speech, “Policing” the Past, Social Toleration, and Colorblindness.
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