Over at Reason, Radley Balko has a characteristically lucid and interesting take on the Gates affair. He argues that Gates’s spurious charges of racism, and the (justifiable) reaction thereto, have obscured the more basic issue behind the arrest:

By any account of what happened—Gates’, Crowleys’, or some version in between—Gates should never have been arrested. “Contempt of cop,” as it’s sometimes called, isn’t a crime. Or at least it shouldn’t be. It may be impolite, but mouthing off to police is protected speech, all the more so if your anger and insults are related to a perceived violation of your rights. The “disorderly conduct” charge for which Gates was arrested was intended to prevent riots, not to prevent cops from enduring insults. Crowley is owed an apology for being portrayed as a racist, but he ought to be disciplined for making a wrongful arrest.

It seems right to me that Gates ought not to have been arrested, though it may be that the unclear “disorderly conduct” statute in Massachussetts is more to blame than the arresting cop. Still, the law as interpreted by the courts does seem to be on Gates’s side. Over at the Volokh Conspiracy, Prof. Eric Posner has a discussion of the statute under which Gates was arrested. He notes a Massachussetts case that held an arrest improper “where defendant was arrested for yelling, screaming, swearing and generally causing a disturbance but, though the yelling was undoubtedly loud enough to attract the attention of other guests in hotel, it did not rise to level of ‘riotous commotion’ or ‘public nuisance.’”