From Seattle to Cambridge, unwritten rules in race relations still matter

FREE speech means that as long as we don't threaten violence or create an unlawful disturbance, we cannot be arrested because of what we say, or the way we say it, even if people don't want to hear it.

Last month, Cambridge Police Sgt. James Crowley forgot about this right when he didn't like what Henry Louis Gates Jr. was saying or how he was saying it. Crowley decided to shut Gates up by arresting him.

State courts afforded Illinois Nazis more First Amendment protection when they attempted to march on Skokie in the late 1970s. Think about that.

I was raised in Memphis, Tenn., during the civil-rights movement. Young black men were routinely beaten and verbally humiliated by the Memphis Police Department. My parents taught me that if confronted by police I should keep my eyes down, my hands in plain view, and respond with "yes sir" and "no sir."

This was the rule even if the officer was 100 percent wrong, even if he insulted or humiliated me. I learned that to speak my mind, even without the threat of violence, might make police consider me "uppity" and a candidate for a beating, or worse. My parents said an arrest record could destroy chances for college and limit career choices. This lesson had nothing to do with the Constitution or justice, it was about survival.

You don't have to go back four decades to Memphis or across the country to Massachusetts today to find racial bias infecting the decision to arrest. Last year, the Seattle Post-Intelligencer studied Seattle Municipal Court records and found that between January 2002 and December 2007 blacks were arrested for obstructing a police officer eight times as often as whites, when population was considered. The P-I analysis revealed that 48 percent of all arrests for obstructing (defined as arrests for obstructing alone or combined with closely related charges like resisting arrest) involved black defendants. During this time, blacks made up less than 10 percent of the total Seattle population.

Were the Seattle arrests legitimate? The City Attorney's Office either refused to file charges or dismissed charges in 46 percent of the obstruction cases. In other words, almost half of the Seattle arrests could not be justified by prosecutors looking at reports written by the arresting officers.

Crowley's report is no better. Crowley claimed that Lucia Whalen identified herself as the 9-1-1 caller and told him she saw two black men on the porch with backpacks. Whalen says she never told Crowley she saw two black men or backpacks because she never spoke to Crowley at the scene. The recorded call supports Whalen — she said, "One looked kind of Hispanic but I'm not really sure. And the other one entered and I didn't see what he looked like at all. I noticed two suitcases so I'm not sure if these are two individuals who actually work there or maybe live there."

Crowley's reason for arresting Gates was his "tumultuous" behavior. For the truth, look past Crowley's characterization and examine what actually happened. Gates presented his identification and proved there was no burglary in progress before being arrested. Crowley admits Gates made no threatening motions and used no profanity or threats of violence in the house or on the porch.

Crowley says Gates accused him of racist behavior and said he was not going to accept the racist behavior and that Crowley had not heard the last of him. Tumultuous or not, what Gates said and did in his home did not threaten anyone and no one outside the home was disturbed. In America, you have free speech in your own home.

Gates was arrested on his porch for disturbing the peace, but who was disturbed? Crowley says the people watching looked surprised and alarmed. Despite this characterization, the people outside the home did not block traffic, become unruly or do anything but watch.

Maybe some were alarmed that Crowley did something to anger Gates. Gates was telling everyone who could hear that Crowley's behavior was racist, and he was not going to be silent about it. Without any threats of violence or violence, Gates raised his voice to protest unfair treatment. Crowley was embarrassed, so he shut Gates up with his badge and handcuffs.

Have you seen tumultuous behavior by people at public health-care forums directed at elected officials recently? Did anyone get arrested.

Gates broke the unwritten rule. He refused to keep his eyes toward the ground. He spoke without deference and submission in his voice. He did not say "yes sir, no sir."

Things are better than they were 40 years ago, but on a quiet day in Cambridge something very ugly happened to free speech. Crowley's behavior reminds me of The Clash song called "Know Your Rights," with lyrics that include: "You have the right to free speech as long as you're not dumb enough to actually try it."

I regularly speak to Seattle high-school students about the legal system. Though it pains me deeply, I will continue to urge minority students confronted by an officer whose behavior is racist, insulting and demeaning to keep their eyes down, hands in plain view and respond yes sir [or ma'am] or no sir [or ma'am]. Because teaching at Harvard, earning real and honorary degrees and being friends with the president of the United States cannot protect you from racial bias, especially if you choose to speak truth to a badge and gun.

I will tell students the unwritten rule, but I won't tell them it is justice.