A viral video of a Mississippi State student yelling an antisemitic slur and allegedly throwing change at Barstool Sports founder Dave Portnoy was an embarrassment to the city.

The incident happened Friday on a weekend that was supposed to have generated great exposure for Mississippi State, its football program and the city of Starkville. Obviously, this was not the sort of exposure the city had in mind.

As repugnant as the incident was, embarrassment is not a criminal offense, although it appears that embarrassment may have been what prompted the Starkville Police Department to arrest 20-year-old Patrick McClintock on a misdemeanor charge of disturbing the peace.

The arrest came three days after the incident. Portnoy, who is Jewish, was filming a pizza review outside Boardtown Pizza & Pints in Starkville’s Cotton District when, in a video disseminated on social media, a person identified as McClintock could be heard yelling, “F*** the Jews, f*** you, Dave Portnoy.” Although not captured on the video, McClintock was reported to have tossed some change in Portnoy’s direction, but Portnoy did not appear to have been hit.

The arrest deserves closer scrutiny because it poses a question about where free speech ends and disturbing the peace begins. An arrest based on the latter should not be used as a means of punishing the former.

Offensive speech, no matter how vile, is protected by the First Amendment. The Supreme Court has ruled that speech, in and of itself, is protected speech time after time. It is a position the Starkville Police Department noted in its statement at the time of McClintock’s arrest: “Offensive words alone are protected, but when behavior disrupts a public event or risks violence, the Starkville Police Department will take steps to help maintain safety and security.”

In describing the incident, the SPD stretches “public event” to the broadest possible definition. What risk of violence the incident represented is equally dubious.

If the standard for disturbing the peace can be met by a brief verbal outburst and the toss of a few coins, the question of police overreach becomes a legitimate concern.

Remember, McClintock’s arrest came three days after the incident, so the arrest was made with the considerable benefit of hindsight. It was not a violent confrontation nor did it create any real danger.

There can be no serious question as to whether McClintock’s remarks were disgusting. They are a clear example of the kind of hate speech that is morally contemptible and unwelcome in any community. However, the constitutional standard for a criminal arrest is not moral outrage; it is the law.

McClintock has been rightfully judged and found guilty in the only court that should have jurisdiction in this case – the court of public opinion.

He has not gone unpunished. McClintock has withdrawn as a student and, as Portnoy himself said, “This will follow him wherever he goes and he deserves it.”

We understand why city officials are both angry and embarrassed by this incident. But an arrest is not the proper avenue to express those sentiments. While McClintock’s actions may fit within the technical definition of disturbing the peace, an arrest should be the final tool of public order, not the first reaction to appalling, yet protected, speech.

The Dispatch Editorial Board is made up of publisher Peter Imes, columnist Slim Smith, managing editor Zack Plair and senior newsroom staff.

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