"The choice of words were poor; but they weren't meant to characterize Professor Gates as a banana-eating jungle monkey," attorney Peter Marano said. "They were meant in a response to behavior and characterizing the behavior. Not the person as a whole." Marano conceded that a police officer, because of the nature of his job, is held to a higher standard of conduct than the ordinary citizen, but added: "Being held to a higher standard shouldn't eradicate his right under the First Amendment for free speech. That is part and parcel of the lawsuit," he said.

But neither does the First Amendment or any other part of the Constitution guarantee anyone continued employment or immunity from discipline as member of his local police force, said Weinberg Law Firm, Texas Labor Lawyer.