MCN/USA TODAY NETWORK: Kentucky wants to criminalize free speech

Matthew T. Mangino
MCN/USA TODAY NETWORK
March 19, 2021

In 1987, U.S. Supreme Court Justice William J. Brennan Jr. wrote in a ruling striking down a Houston ordinance that made it unlawful to oppose or interrupt a police officer, "The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state."

In spite of Justice Brennan’s admonishment, 34 years after the decision the Kentucky Senate approved a measure that would make it a crime to insult or taunt a police officer.

Senate Bill 211 would make it a misdemeanor offense for someone to taunt "a law enforcement officer with offensive or derisive words, or by gestures or other physical contact, that would have a direct tendency to provoke a violent response from the perspective of a reasonable and prudent person."

The ACLU called the legislation "an extreme bill to stifle dissent."

Kentucky is part of the Federal 6th Circuit Court of Appeals.  The 6th Circuit has jurisdiction over federal appeals arising from Kentucky, Michigan, Ohio and Tennessee. 

In 2017, a Taylor, Michigan police officer pulled over a woman for speeding but gave her a ticket for a lesser violation. As the woman drove off, she flashed the officer her middle finger—"flipped him the bird”, i.e., “shot him the finger.” The officer pulled her over a second time and amended the ticket to the more serious speeding offense, reported the Detroit News.

“Fits of rudeness or lack of gratitude may violate the golden rule,” Judge Jeffrey Sutton wrote. “But that doesn’t make them illegal or for that matter punishable or for that matter grounds for a seizure.”

According to the ABA Journal, Judge Sutton said that, if the allegations are true, the officer violated her right to be free from an unreasonable seizure under the Fourth Amendment, as well as her free speech rights under the First Amendment.

“Any reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment,” the court said.

Not that the Kentucky Senate cares—there are a series of cases over the last half-century that have found that insulting police officers is protected speech.

The 6th Circuit also found, in 1997, that an individual has a First Amendment right to shout "f--- you" and “flip off” a police officer from a moving vehicle. The court relied on a 1971 landmark Supreme Court decision that upheld the right of a man to wear a jacket into the courthouse that said "f--- the draft."

In 2012, the U.S. Court of Appeals for the 2nd Circuit ruled in favor of a New York man who sued after he was arrested for disorderly conduct after making an obscene gesture to a police officer. The court held that the "ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity."

Even without a statute prohibiting the insult of police officers, more and more law enforcement agencies are getting creative. In Pennsylvania, the police are using the state’s hate crime statute “ethnic intimidation”—defined as “malicious intention toward the race, color, religion or national origin of another individual or group of individuals”—against people who direct insults towards the police.

According to The Appeal, a Pittsburgh man being arrested called police “Nazis,” “skinheads” and “Gestapo.” The police charged him with a hate crime.

“This is completely ridiculous,” Mary Catherine Roper, deputy legal director for the ACLU of Pennsylvania, told The Appeal in 2018. “This is not what the hate crime statute was for. This is criminalizing pure speech and that violates the First Amendment.”

In deference to Kentuckians, not everyone is on board in the state Senate. Minority Leader Morgan McGarvey told the Lexington Herald-Leader, “We are criminalizing speech.”

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino)

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