Ajai Raj was arrested for disorderly conduct after behaving like a
farm animal during Ann Coulter's recent speech at the University of
Texas. But as Eugene Volokh noted, the arrest probably violated Mr. Raj's free speech rights. As the arrest warrant shows, Mr. Raj's protected speech was the predicate act for the disorderly conduct charge.
Many of you might wonder whether Mr. Raj will sue under section 1983
for violations of his First and Fourteenth Amendment rights. He might; and he very
well could lose.
Under Devenpeck v. Alford,
an unconstitutional arrest magically becomes constitutional if the
police can find an after-the-fact justification for the arrest. In Alford,
police officers pulled over a motorist. While questioning the
motorist, police noticed that Mr. Alford had a tape-recorder running.
The police then arrested Mr. Alford for violating a Washington law that
prohibited the nonconsensual taping of private conversations.
But since Washington caselaw established that the police have no
expectation of privacy in conversations made during traffic stops, the privacy act charges were
dropped, and the Ninth Circuit held that the arrest was
Reversing, the Supreme Court held that since the police had probable
cause to arrest Mr. Alford for another offense, the arrest was
constitutional. Thus, even though Mr. Raj's disorderly conduct charge
was predicated on protected speech, it's quite likely that police and
prosecutors, if they think hard enough, will find something else to pin
Alakazam! An unconstitutional arrest would then become constitutional.