The stilted language in the Gates police report is intended to mirror the courts' awkward phrasing, but the state could never make the charge stick. The law is aimed not at mere irascibility but rather at unruly behavior likely to set off wider unrest. Accordingly, the behavior must take place in public or on private property where people tend to gather. While the police allege that a crowd had formed outside Gates' property, it is rare to see a disorderly conduct conviction for behavior on the suspect's own front porch. In addition, political speech is excluded from the statute because of the First Amendment. Alleging racial bias, as Gates was doing, and protesting arrest both represent core political speech.
--Carol Rose and Sarah Wunsch of the ACLU of Massachusetts