Kentucky Senate Bill 211 and Free Speech

Photo by Evershot on Unsplash

Bennett Herbert, Associate Member, Cincinnati School of Law Review

I. Introduction

In response to the protests and civil unrest seen around the United States in 2020, several states have proposed new laws to crack down on anti-police protests. In September of 2020, Governor Ron DeSantis of Florida proposed legislation to enhance criminal sanctions for those arrested at a protest.[1] The following month, Nebraska Senator Tom Brewer proposed a bill that would bar anyone arrested at a protest from being eligible for bail.[2] In January of 2021, Indiana introduced a bill that would create new penalties for merely funding a protest.[3]

In January of 2021 alone, twelve different states proposed new laws that target protests.[4] While the constitutionality of many of these bills is up for debate, perhaps the most troublesome is Kentucky Senate Bill 211 (“the Bill”). If enacted, this law would criminalize the act of taunting or insulting a police officer with certain offensive words or gestures.[5] This proposal raises paramount freedom of speech issues, and there is ample case law to evaluate the chances of whether such a provision would be ruled constitutional.

Part II of this article will provide a factual and legal background to the Bill’s creation. Part III of this article will describe the Bill’s supporters’ and critics’ arguments before evaluating its constitutionality. Part IV of this article will forecast the expected future of the Bill.

II. Background

The police killing of Louisville native Breonna Taylor sparked protests across Kentucky and around the nation,[6] and the reaction to them help explain why the Bill was created. Additionally, from decades-old cases from the Supreme Court to recent decisions in Kentucky’s own Sixth Circuit Court of Appeals, there is voluminous case law analyzing freedom of speech issues with respect to challenging law enforcement with words or gestures. These cases provide insight into Kentucky Senate Bill 211’s constitutionality.

A. Factual Background

On March 13, 2020, Louisville police officers shot blindly into Breonna Taylor’s apartment while executing a no-knock warrant as part of a drug dealing investigation.[7] Taylor was shot five times, received no medical attention for at least twenty minutes, and passed away at the scene.[8] No drugs were found in her apartment.[9] Louisville saw over 100 consecutive days of protestors demanding the officers involved be fired and criminally charged.[10] Some protests were accompanied by vandalism and looting, and over 500 protestors were arrested.[11] A grand jury brought no charges for the killing, and prosecutors said the officers were justified in using force to defend themselves.[12] This resulted in a resurgence of protests in Louisville.[13]

In January of 2021, Kentucky lawmakers introduced Kentucky Senate Bill 211.[14] The Bill would increase the penalties for rioting, ensure that police maintain funding, and criminalize pointing a light or noise-making device at an officer.[15] The Bill’s most controversial provision would make it illegal for someone to “[a]ccost, insult, taunt, or challenge a law enforcement officer with offensive or derisive words, or by gestures or other physical contact, that would have direct tendency to provoke a violent response from the perspective of a reasonable and prudent person.”[16] Such a crime would be punishable by up to 90 days in prison and $250 in fines.[17]

On March 11, 2021, the Bill passed the Kentucky Senate by a vote of 22-11.[18] Six Republicans joined five Democrats in voting against the Bill, and no Democrats voted for it.[19] The House of Representatives failed to bring the Bill up for a vote in the 2021 session.[20] Senator Danny Carroll said he would reintroduce the Bill next session, which begins January 2022.[21]

B. Legal Background

In Chaplinsky v. New Hampshire, 62 S. Ct. 766 (1942), the Supreme Court ruled that certain “fighting words” were exempt from First Amendment’s protection.[22] Walter Chaplinsky was a Jehovah’s Witness passing out pamphlets and calling organized religion a “racket.”[23] After a large crowd formed around Chaplinsky, an officer took him to police headquarters.[24] There, Chaplinsky called the town marshal a “racketeer” and a “fascist.”[25] For this, Chaplinsky was convicted under a New Hampshire statute that prohibited intentionally offensive speech directed at others in a public place.[26] The Supreme Court upheld the conviction, explaining that sanctions on some specific, narrow classes of speech do not raise constitutional issues, including “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words.”[27]

Forty-five years later, the Supreme Court ruled in Houston v. Hill, 482 U.S. 451, (1987), that verbally criticizing and challenging a police officer constitutes protected free speech.[28] In an attempt to divert attention from his friend, Raymond Hill shouted at two Houston police officers.[29] Hill was arrested for “willfully… interrupting a city policeman… by verbal challenge during an investigation” in violation of a city ordinance.[30] Hill brought a lawsuit to challenge the ordinance’s constitutionality.[31] The Court struck down the ordinance, reasoning that “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”[32] Further, the Court ruled, “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.”[33]

Kentucky is covered by the Sixth Circuit, which ruled in Cruise-Gulyas v. Minard that raising a middle finger to a police officer was protected by the First Amendment.[34] In that case, a Michigan police officer pulled over Debra Cruise-Gulyas for speeding, and then wrote her a lesser ticket for a non-moving violation.[35] As she drove away, Cruise-Gulyas raised her middle finger to the officer.[36] In response, the officer pulled her over again and upgraded her ticket to a speeding violation.[37] The Sixth Circuit ruled that Cruise-Gulyas’s gesture was protected speech, explaining, “Any reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment.”[38] The court further ruled that the officer’s act to stop Cruise-Gulyas a second time was “[a] cognizable, and clear, violation of her speech rights.”[39]

Similarly, in Swartz v. Insogna, the Second Circuit ruled that giving a police officer the middle finger could not be the basis for suspicion of criminal activity.[40] John Swartz gave a New York police officer the middle finger from the passenger seat as his wife drove by legally.[41] The officer followed the car, claiming he was worried that the driver could be in trouble, and that this suspicion was based solely on Swartz’s gesture.[42] After a brief exchange, the officer ultimately arrested Swartz for disorderly conduct.[43] The Second Circuit vacated the district court’s dismissal of Swartz’s lawsuit, reasoning, “This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation of impending criminal activity.”[44]

III. Discussion

Supporters of Kentucky Senate Bill 211 champion its increased protections of police officers from bad actors. Opponents of the Bill criticize it for violating the First Amendment with overly broad language. Ultimately, courts are likely to rule the Bill unconstitutional based on judicial precedent.

A. Supporters’ Case for Kentucky Senate Bill 211

Senator Danny Carroll, a retired police officer, said the disrespect he has witnessed compelled him to endorse the Bill. He said, “It’s meant to protect the officers, because in those situations, when you’ve got someone that’s right up in your face, yelling in your face, waving their arms, calling you every name that you can think of … they have no ability to protect themselves.”[45] Carroll also noted the Bill would protect Kentucky officers from foreign visitors, saying “I want them to know that the welcome mat is no longer out in Kentucky for you to come into our commonwealth, to terrorize our people, to destroy our city, to assault our people.”[46] The Kentucky State Fraternal Order of Police supports the bill “because of the protections it offers the community and the public safety professionals who are sworn to protect it.[47]

B. Opponents’ Criticisms of Kentucky Senate Bill 211

Critics of the Bill believe its overbroad language violates the First Amendment.[48] Even Republicans expressed this concern, like Senator Julie Raque Adams, who said the provision is “crafted too broadly, I believe, to make this bill constitutional.”[49] Corey Shapiro of the American Civil Liberties Union of Kentucky argued the Bill was not only unconstitutional, but also racially biased. “This bill is going to disproportionately impact communities of color,” Shapiro said.[50]

Senator Carroll has defended the Bill’s constitutionality, arguing that it falls under the “fighting words” doctrine of Chaplinsky.[51] “This bill is not meant to stifle the emotion… If I thought this was a violation of freedom of speech or the First Amendment, I never would have filed the bill.”[52] Further, Senator Carroll has argued the Bill will not punish peaceful protestors, but only criminals. “This is not about lawful protest in any way, shape, form or fashion. This country was built on lawful protest, and it’s something that we must maintain—our citizens’ right to do so. What this deals with are those who cross the line and commit criminal acts.”[53]

C. The Constitutionality of Kentucky Senate Bill 211

Because of Kentucky Senate Bill 211’s overly broad language, and the existing case law providing precedent, it is likely unconstitutional for violating the First Amendment.

By criminalizing offensive words and gestures that have a “tendency to provoke a violent response from the perspective of a reasonable and prudent person,” the Bill leaves room for charging individuals for language that is not harmful, but merely offensive. This could include calling officers names or giving them the middle finger. The Sixth Circuit ruled in Cruise-Gulyas v. Minard that any reasonable officer would know an individual raising her middle finger is acting with protected free speech.[54] Defenders of the Bill might argue that flippant name-calling or a middle finger do not rise to the level to provoke a reasonable person to violence, but this is exactly where the Bill’s broad language is a weakness. Certain words and gestures might tend to spur one reasonable officer to respond violently, but a different, equally reasonable officer could not be so offended, and it is impossible for an actor to know where that line falls for the officer they are directing their insult. As University of Kentucky law professor Cortney Loller explained:

“The average person will not necessarily know what words a police officer will find so offensive as to lead the officer to have a violent response. The officer does not have to be harmed in any way by the words or actions; they just have to find the words or gestures provoking enough that it causes them to react violently, whether the officer actually responds violently or not.”[55]

Because merely offensive words can fall under the language of the Bill, it can therefore prohibit speech that is protected by the First Amendment, and is thus overbroad.

Senator Carroll’s argument that the Bill’s language is constitutional under the “fighting words” doctrine will likely fail. Because the language of the Bill does not specify its scope to cover speech that is lewd and obscene, profane, or “fighting words,” it is not narrowly crafted to fit into any of the exceptions carved out in Chaplinsky v. New Hampshire. In that case, the Court explained that the types of speech that were not protected “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”[56] The Court decided that the First Amendment did not protect Chaplinsky’s words because they were of little social value. Since that ruling, the Court has made clear in Hill v. Houston and other cases that civilians’ right to insult or challenge law enforcement is of paramount social value, not only to the individual, but to the ideals of a free society. “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.”[57] This holding distinguishes the social value of challenging or insulting law enforcement from the social value of Chaplinsky’s words. Therefore, the act of challenging or insulting law enforcement does not fall within the “fighting words” doctrine.

Supporters of the Bill could argue that for certain verbal challenges—particularly those that could provoke violence in a reasonable person—the costs of abusive words that could provoke violence outweigh the social benefits of allowing opposition to police action, and thus are not afforded protection under the First Amendment. However, it is more likely the Bill would be used to target protestors more than it would protect law enforcement. Many protests involve chants that criticize law enforcement, occasionally with foul language.[58] Based on the language of the Bill, these chants could warrant mass arrests of all the peaceful demonstrators involved. According to a Washington Post study, 96.3% of Black Lives Matters demonstrations involved no property damage or police injuries.[59] This is largely because attacking people and destroying property is already illegal.[60]

The Bill’s sponsors might argue that the purpose of the Bill is not to protect officers from harmless words, but ensure they can do their job without being provoked to act out. But police officers, perhaps more than anyone, should be charged with not reacting to insulting words with violence. Unlike the statute in Chaplinsky, which generally criminalized words directed at anyone,[61] the Bill only criminalizes speech directed at law enforcement. Protecting the freedom to challenge police officers and preserving public safety are not mutually exclusive, and by broadly criminalizing taunts directed at law enforcement, Kentucky Senate Bill 211 destroys the former without improving the latter.

IV. Conclusion

After the civil unrest of 2020, several states have a clear mission to counteract protestors by preventing them from operating with the same levels of freedom. While some of these measures are legal or at least ambiguous, Kentucky Senate Bill 211 is plainly unconstitutional due to its broad language that violates the First Amendment. If Senator Carroll wants the Bill to be upheld by the courts, he will need to at the very least significantly narrow its language to explicitly define what speech it is criminalizing. However, due to the judicial weight of cases like Hill v. Houston and Cruise-Gulyas v. Minard, the Bill’s only chance at survival might be entirely striking the provision that criminalizes taunting an officer. As Senator David Yates humorously yet acutely said when criticizing the Bill, “I don’t believe any of my good officers are going to provoke a violent response because someone does a ‘yo mama’ joke or whatnot.”[62]

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[1] C.J. Ciaramella, Kentucky Bill Would Make Insulting a Cop a Crime, reason (March 5, 2021), https://reason.com/2021/03/05/kentucky-bill-would-make-insulting-a-cop-a-crime/.

[2] Paul Hammel, Nebraska lawmakers propose bill to crack down on violent protests, omaha world herald (Oct. 28, 2020), https://omaha.com/news/state-and-regional/govt-and-politics/nebraska-lawmakers-propose-bill-to-crack-down-on-violent-protests/article_1f0b605e-6719-521c-9150-e2620389f816.html.

[3] Anti-Protest Laws in the United States, first amendment watch (April 3, 2021), https://firstamendmentwatch.org/deep-dive/states-rush-to-pass-anti-protestor-laws/.

[4] Id.

[5] Ciaramella, supra note 1.

[6] Amanda Woods, Two Louisville detectives fired in connection to Breonna Taylor Shooting, ny post (Jan. 6, 2021), https://nypost.com/2021/01/06/two-louisville-detectives-fired-in-connection-to-breonna-taylor/.

[7] Richard A. Oppel Jr. & Derrick Bryson Taylor, and Nicholas Bogel-Burroughs, What to Know About Breonna Taylor’s Death, the new york times (Jan. 6, 2021), https://www.nytimes.com/article/breonna-taylor-police.html#:~:text=The%20death%20of%20Breonna%20Taylor,injustice%20in%20the%20United%20States.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Chloe Atkins and Dennis Romero, Lousivlle march for second night after Breonna Taylor grand jury decision, nbc news (Sep. 24, 2020), https://www.nbcnews.com/news/us-news/louisville-protesters-march-second-night-after-breonna-taylor-grand-jury-n1241004.

[14]  Ciaramella, supra note 1.

[15] Kentucky Senate passes bill making it crime to taunt a police officer. It was proposed in wake of Breonna Taylor Protests, cbs news (March 12, 2021), https://www.cbsnews.com/news/kentucky-taunting-police-officer-soon-be-illegal-breonna-taylor-protests/.

[16] Ciaramella, supra note 1.

[17] Id.

[18] cbs news, supra note 15.

[19] Marcus Green, Kentucky Senate approves bill making it a crime to taunt, insult police officers, wdrb (March 12, 2021), https://www.wdrb.com/in-depth/kentucky-senate-approves-bill-making-it-a-crime-to-taunt-insult-police-officers/article_da659f20-8362-11eb-ad77-bb68dd081df5.html.

[20] Mary Ellen Cagnassola, Kentucky Bill Prompted by Breonna Taylor Protests on Hold Until 2022, newsweek (March 23, 2021), https://www.newsweek.com/kentucky-bill-prompted-breonna-taylor-protests-hold-until-2022-1577926.

[21] Id.

[22] Chaplinsky v. New Hampshire, 62 S. Ct. 766 (1942).

[23] Id. at 768.

[24] Id.

[25] Id.

[26] Id.

[27] Id. at 769.

[28] Houston v. Hill, 482 U.S. 451 (1987).

[29] Id. at 453.

[30] Id. at 454.

[31] Id. at 455.

[32] Id. at 461.

[33] Id. at 462.

[34] Cruise-Gulyas v. Minard, 918 F.3d 494, 495 (6^th Cir. 2019).

[35] Id.

[36] Id.

[37] Id. at 496.

[38] Id. at 497.

[39] Id. at 498.

[40] Swartz v. Insogna, 704 F.3d 105, 108 (2^nd Cir. 2013).

[41] Id.

[42] Id.

[43] Id.

[44] Id. at 110.

[45] Marquis Francis, Kentucky Republican defends controversial bill that outlaws insulting police, msn (March 24, 2021), https://www.msn.com/en-us/news/politics/kentucky-republican-defends-controversial-bill-that-outlaws-insulting-police/ar-BB1eTbUv.

[46] Id.

[47] Green, supra note 19.

[48] Id.

[49] Id.

[50] Id.

[51] Cagnassola, supra note 20.

[52] Francis, supra note 45.

[53] Ciaramella, supra note 1.

[54] Cruise-Gulyas v. Minard, 918 F.3d 494, 497 (6^th Cir. 2019).

[55] Francis, supra note 45.

[56] Chaplinsky v. New Hampshire, 62 S. Ct. 766, 769 (1942).

[57] Houston v. Hill, 482 U.S. 451, 462 (1987).          

[58] Tyler Pratt, “F the Police:” Debate over chants at Black Lives Matter protests reveals divide in Allentown City Council, npr (Aug. 6, 2020), https://www.wlvr.org/2020/08/f-the-police-debate-over-chants-at-black-lives-matter-protests-reveals-divide-in-allentown-city-council/#.YHQaCEhKiqA.

[59] Erika Chanoweth, This summer’s Black Lives Matter protests were overwhelmingly peaceful, our research finds, washington post (Oct. 16, 2020), https://www.washingtonpost.com/politics/2020/10/16/this-summers-black-lives-matter-protesters-were-overwhelming-peaceful-our-research-finds/.

[60] Green, supra note 19.

[61] Chaplinsky v. New Hampshire, 62 S. Ct. 766, 769 (1942).

[62] Francis, supra note 45.