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A New York man arrested and charged with disorderly conduct near the World Trade Center after an angry crowd threatened him for supporting Osama bin Laden will stand trial in late February, despite his free speech claims. Judge Neil E. Ross of the Manhattan Criminal Court found in People v. Harvey, 2001NY078439, that it was reasonable to infer that William Harvey, 54, of Long Island City, N.Y., consciously disregarded an unjustifiable risk of public inconvenience or alarm when he staged his speech just a few blocks from the destroyed World Trade Center towers. Harvey told onlookers that the Sept. 11 attacks were retribution for the United States’ treatment of Islamic countries, according to a complaint filed against him. “This is a decision that cannot be allowed to stand,” said Donna Lieberman, executive director of the New York Civil Liberties Union (NYCLU), when informed of the decision last week. “The First Amendment issues are clear.” She said her group would offer to assist attorneys defending Harvey. A spokeswoman for the Manhattan District Attorney’s Office said the case was scheduled for trial on Feb. 21. She said the office could not comment further on an ongoing case. In a brief submitted to Judge Ross, the prosecution argued that the court should take into account the timing of the episode in relation to the attacks. The brief also cited People v. Maher, 137 Misc. 2d 162, a 1987 case in which a Manhattan Criminal Court found a woman guilty of disorderly conduct for aggressively engaging women leaving an abortion clinic with anti-abortion rhetoric. Harvey was arrested on the afternoon of Oct. 4 at the corner of Nassau Street and Maiden Lane in the financial district. Dressed in army fatigues, he was carrying a sign bearing a picture of Osama bin Laden superimposed on an image of the World Trade Center towers, according to the complaint. He was also handing out leaflets to passersby, the complaint said. About 60 people gathered around Harvey and began to shout, “F–k this guy, lock that f–king guy up before I kill him,” according to the opinion. The incident disrupted pedestrian traffic and created a public disturbance. Harvey was arrested and charged with disorderly conduct. No other individuals were arrested, according to Thomas A. O’Brien, an attorney in the Criminal Defense Division of the Legal Aid Society who represented Harvey on his motion to dismiss. In his motion, Harvey argued the prosecution had failed to establish that he obstructed traffic and that the inconvenience to pedestrians was more than temporary. He also presented a “heckler’s veto” defense, claiming that the First Amendment of the U.S. Constitution protected his right to express controversial and unpopular views. Judge Ross rejected all those claims, saying Harvey invited the crowd and was part of the group that obstructed traffic, even though the crowd was hostile toward him. The judge also wrote that the inconvenience to pedestrians was more than fleeting because the crowd was large and threatened violence. Addressing Harvey’s free speech claims, the judge wrote, “It is the reaction which speech engenders, not the content of the speech, that is the heart of disorderly conduct.” He added that Harvey chose to make his speech near the site of the attacks shortly after Sept. 11, a fact that made it reasonable to infer he was at least aware of a substantial risk that public alarm would result. O’Brien described the case as unusual and took umbrage at the fact that no request was made for the crowd to disperse and that no one else was charged. Had Harvey been holding a sign that incited people to join him in protest of the attacks, O’Brien said, the arrest would likely not have been made. If found guilty, Harvey could receive a maximum of 15 days in prison, according to O’Brien. The NYCLU’s Lieberman said: “Instead of going after those who sought to interfere with another person’s ability to express himself, the police only arrested the person whose speech was ‘wrong.’” Kimberly Whiteman will represent the prosecution at trial. James T. Swoyer will appear for the Legal Aid Society. The Police Department did not return a phone call requesting comment.

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