Heckler's Veto a Mistake

The visit and heckling of New York City Police Commissioner Ray Kelly at Brown University drew headlines. Of course. The major media, in New York especially, love the guy. And they took offense when Brown University students booed him off the stage. Beyond the headlines, however, is the gravity of the issues students and others on the Brown campus raised about the use of racially discriminatory tactics of policing. Because I believe that that is a serious issue -- and that the university might have helped shed light on the controversy had it invited Commissioner Kelly to debate a prominent critic of racial profiling -- even, say, another police chief or ex-police chief with a demonstrated record of success at law enforcement and crime reduction, but who regards what NYPD's been doing as unconstitutional racial discrimination.

The university chose instead to invite NYPD Commissioner Kelly to be its sole speaker. That was its privilege and its decision alone. And, we hold that it was the wrong tactic for dissenters to disrupt his speech and to exercise what was in effect a "heckler's veto" of what Commissioner Kelly intended to say. Indeed, we in New York City's civil rights community have found that every time Commissioner Kelly speaks on the topic, he trips himself up with what sounds to us like a confession that NYPD has been racially profiling people -- mostly black and Hispanic young men -- for unjustified stops, questioning, and frisks.

So, to elucidate the big and bigger issues behind Ray Kelly's posturing -- and the disruption of his intended speech -- I wrote and sent this public letter to the Brown community about Commissioner Kelly's denials versus the federal court's finding of NYPD's unconstitutional law enforcement practices.

Dear Friends:

Ours is one of the civil rights and civil liberties groups in New York City that has taken to task NYPD and Police Commissioner Ray Kelly on the discriminatory use of Stop, Question and Frisk practices. We have also protested NYPD's surveillance of Muslim groups, having urged the Governor and the New York State Attorney General to intervene and help put an end to such surveillance -- surveillance that, we believe, violates the spirit and the letter of the Handschu Agreement, which regulates police surveillance of the constitutionally protected activities of our citizenry and their associations. In this connection, we hold that the United States Constitution is flouted and the rule of law is undermined whenever police abuse their authority through religious or racial profiling.

Police Commissioner Ray Kelly -- backed up by Mayor Bloomberg -- has asserted his department's right to stop, question and frisk, in the pursuit of aggressive law enforcement even when that police conduct disproportionately impacts minority persons, they who live or walk in high-crime communities, especially black and Hispanic neighborhoods. In his insistence on doing what a federal judge has found unlawful, Commissioner Kelly has been block-headed and obstinate. He must have known -- even before the court ruling -- that NYPD's practices of stop, question and frisk have been carried out in a racially discriminatory manner. Yet, Commissioner Kelly -- and Mayor Bloomberg -- has continued to defend NYPD's stop and frisk practices as an effective crime-fighting tool, notwithstanding that the overwhelming numbers of persons stopped and frisked have been innocent of any crimes. Commissioner Kelly sees himself and his department as doing minority communities a favor by stopping their children as a "deterrence" measure at crime-fighting. He contends that because most victims of violent crime are non-white, and because most perpetrators of violent crime are young black and Hispanic males, that of course mostly blacks and Hispanics are stopped and frisked. This is sheer sophistry. It is also racial profiling.

The facts are these: The overwhelming numbers of young black and Hispanic men stopped, questioned and frisked in New York City were not involved in any kind of crime. Commissioner Kelly's claim that stops and frisks "works" because it recovers weapons is also not supported by the NYPD's own statistics. In 2011 alone, there were well over 685,000 stops of mainly young minority (black and Hispanic) males; of those suspects, just over 800 guns were recovered -- less than one-tenth of 1 percent. The pitiable arrest rate of suspects stopped, questioned and frisked is strong evidence that an overwhelming majority of the persons stopped were wholly innocent. Obviously, NYPD is engaged in racial profiling. The federal judge saw through NYPD's fabrications.

The more we hear directly from the police commissioner, the more we are convinced that his policy and practice of stop and frisk constitutes racial profiling. He and Mayor Bloomberg actually convince us that they are racially profiling even as they deny that that's what they're doing. Their double talk is not only bothersome, it is manifestly condemning of their practices, notwithstanding their claim that their stop and frisk practices conform to Supreme Court precedents. The federal judge disagreed with NYPD and with Commissioner Kelly's defense. Indeed, one of the reasons the federal judge could make the finding she did is Police Commissioner Kelly's tough talk and transparent falsehoods as to what NYPD is doing by way of "crime-fighting" practices in minority neighborhoods, and the "reasons" they are doing it. The more Police Commissioner Kelly talks about his success as a police commissioner and about New York as a supposed model of effective law enforcement, the more he makes crystal clear the paternalism that rings through his defense of racial profiling. Even Commissioner Bill Bratton, his predecessor -- he drove down crime in New York in dramatic fashion -- disputes that aggressive and effective policing necessitates either racial profiling or losing support of the police from the very communities where community support is critical to crime-fighting.

I found it interesting -- to say the least -- that Brown University wanted to hear from Police Commissioner Kelly about his track record and accomplishments in New York City by way of crime-fighting. The university must have known of the accusations of racial profiling -- and of the federal court's injunction of NYPD's practices. I imagined that there would some disagreement and protest of Commissioner Kelly's invite to speak at Brown -- but it never dawned on me that people who want to end unconstitutional police practices would attempt to gag and silence the police commissioner -- or, for that matter -- would join in or lead a concerted effort to prevent the police commissioner from speaking. That such a campaign was mounted at a university -- at Brown University, a campus with such a rigorous academic reputation -- where free speech is supposedly valued, was strikingly bizarre and haunting, to us.

It is at the university where the "Free Speech Movement" took root in the 1960s, when college students captured the nation's attention and widespread support. In 1964, it was the University of California at Berkeley where students broke their silence. They protested the university's banning on-campus political activities. The blossoming of the Free Speech Movement was made possible by the courage and tenacity and example of many of the students who had joined in the Civil Rights Movement--who had joined in protests of segregation laws, and who spoke up -- on- and off-campus -- and challenged the American system to live up the guarantees of the Constitution for all persons. On campus, students held rallies and raised pickets and set up information tables -- and teach-ins -- and "controversial" speakers were invited to campus. Significantly to the issue at hand -- students back then protested university regulations that had restricted outside political speakers. So, it is more than ironic, then -- indeed, it is unnerving and appalling -- that, in 2013, when free speech rights and principles have been so firmly embedded as critical to free inquiry and discourse at a liberal arts university, students -- in the guise of protecting minority rights and protesting racism on the part of the police -- would heckle, disrupt and effectively veto the talk of an invited, albeit controversial speaker.

Of course Commissioner Kelly is full of error and his policies are fraught with racial prejudgment and mired in racial paternalism; still, he is the best messenger of his own cause and communicant of his own viewpoint. As errant and nonsensical as is his position, he shouldn't be shouted down or drowned out and prevented from speaking. That's wrong, educationally and morally.

We tolerate a lot in a society that values free speech -- because we have to, in order to preserve our collective freedom. We cannot have free speech for ourselves but not for others -- "them." If that is the standard of judgment -- for censorship -- it won't be long before we (our side) are 'them" and we are subjected to arbitrary and capricious political litmus tests for our unpopular, unfashionable and controversial speech. The heckler's veto is never the acceptable answer to idiocy. In fact, lovers of liberty like me have always embraced free speech as our best friend and most effective tool of persuasion. During the worst years of racial oppression, we did not countenance silencing the most blatant racists. Those who weren't alive at the time can still -- courtesy of videotape and auditory records -- hear ringing in our ears Governor George Wallace's declaration: "Segregation today, segregation tomorrow, segregation forever..." Such plain speech galvanized the activists and people of good will across the nation to common purpose and to common ground -- to a place where we might appeal to reason and defeat passions and prejudices. That is the place we seek and meet allies, and, eventually, through our own speech, rebut idiocy and defeat poisonous, racist, sexist, xenophobic or homophobic rhetoric.

It is not our side's purpose to resort to censorship or to the heckler's veto much less to shameless "no justice, no speech" chants at our adversaries, they who stand on the platforms accorded them for discourse and persuasion. That is not to say -- as I have heard from some in the academy -- that only "civil" speech is protected or acceptable. There was nothing "civil" about what George Wallace decreed. There is nothing "civil" about the pickets and slogans of, say, the Westboro Baptist Church adherents who express hatred for Jews and of homosexuals. As columnist Clyde Haberman reminded his readers several years ago, self-identified Westboro Church adherents had stood outside a Jewish Community Center and carried anti-Semitic signs and uttered anti-gay slogans. "They stepped on an Israeli flag, and dragged an American flag along the pavement. [One picket] even blew her nose in the Israeli flag." (The New York Times, July 28, 2009). As Haberman put it, "Being obnoxious does not violate the Constitution." So, quite often, free speech goes beyond reasoned argument -- yet it still has to be allowed; it mustn't be squelched or prohibited.

There is also nothing "civil" about Commissioner Kelly's insistence that he must protect minority communities by means of stopping, questioning and frisking minority youths, who merely appear "suspicious" because they are minority youths. At a campus forum or event no one is obligated to listen to Police Commissioner Kelly or to any other controversial speaker. But, to what noble purpose does the censor rise or does the heckler's veto serve? What "pride" is there to be gotten from the "satisfaction" of having prevented a speaker from addressing the audience that comes to hear him or her? There are such things as silent protests at an event -- protests of the sort that don't attempt to stop or drown out the speaker. And, of course, the university might have even arranged for a debate -- knowing that the topic was so controversial. It would have been interesting to find out if Commissioner Kelly would have accepted an invitation to stand on the same stage and defend his position were he to be up against a knowledgeable and capable critic and opponent of racial profiling -- even another police chief who finds and assails NYPD's racial profiling practices as unconscionable. But that was the university's call -- or the call of whichever campus group that extended the invitation to Commissioner Kelly. The crowd -- or disruptive persons in an audience -- cannot determine the format or else veto the forum to which the controversial speaker has been invited.

A free society must oppose the inane and the arrogant attempts to silence those with whom we disagree, and to make sure that ideas are not suppressed because simply they are "controversial," unpopular, disfavored or manifestly errant. Controversial speakers ought not to be banned from campus. The same goes for books, I might add.

Ray Kelly's policies are polarizing our community. The last thing we need is an ethnically or racially polarized city.

Commissioner Kelly should be the first person to proclaim that police officers must be the guardians of our liberty, that police officers must respect all of us regardless of our skin color -- that no person's skin color is "cause" for a stop and frisk. The police officer's job is to protect and not to persecute the people and communities they patrol and serve. And consistent with Supreme Court jurisprudence and good law enforcement principles -- the police officer must accord suspects fair and constitutional treatment, starting with a proper legal basis for a stop. That's not likely what Police Commissioner Kelly would have said -- but I think we were entitled to hear him "not" say that, and in not saying that thereby expose what he and NYPD are really up to, in the guise of effective crime-fighting techniques.

I hope that this letter will offer some constructive guidance to your thinking and for the future success of forums at Brown University.

Michael Meyers
Executive Director
New York Civil Rights Coalition