Kentucky’s Republican-majority Senate on Thursday moved forward a bill that would make it easier to arrest protesters for insulting a police officer, a measure that critics say would stifle free speech.
The bill, passed two days before the anniversary of the fatal police shooting of Breonna Taylor, would make it a misdemeanor to taunt or challenge an officer with words or gestures “that would have a direct tendency to provoke a violent response from the perspective of a reasonable and prudent person.” Conviction would be punishable by up to 90 days in jail and fines of up to $250.
State Sen. Danny Carroll, a Republican, who sponsored the bill, said it would enable officers to arrest someone inflaming them before the encounter turns violent. The provision is meant to apply to comments that are “obviously designed to illicit a response from the officer — something to push them to making a mistake, pushing them to violence,” he said, although courts would have the final say in interpreting the rule.
“You don’t have a right to accost a police officer,” Carroll said.
In addition to criminalizing taunting police, the bill would expand the category of protest behavior considered illegal, heighten sentences for offenses related to “riots” and prevent early release for those violations. It comes as Louisville, Kentucky’s largest city, prepares for hundreds of people to gather downtown Saturday to recognize the anniversary of Taylor being fatally shot during an early-morning raid.
Hundreds of people were arrested in Louisville during last year’s protests — most on misdemeanor charges, but some on felony allegations.
The national battle over police accountability is playing out in legislatures across the country, as several states roll out bills that seek to protect law enforcement by expanding their immunity to lawsuits or reducing funding to localities that shrink police budgets. But many Democratic lawmakers have pushed measures that would make officers more liable for misconduct, and the U.S. House also passed a bill this month that would increase officers’ legal liability. Its fate in the Senate is uncertain.
Tyra Thomas-Walker, co-chair of the Kentucky Alliance Against Racist and Political Oppression, said she felt that her state’s bill attacks the constitutional right to peacefully protest.
“Some people are just emotional, and they’re saying things because they’re angry, they’re mad, they’re traumatized, but they’re not acting on it,” she said. “Why criminalize someone for their words? We have to protest now with tape over our mouth?”
The American Civil Liberties Union of Kentucky called the measure “an extreme bill to stifle dissent” with broad and ambiguous language.
“It’s criminalizing speech in a way that’s directed at protesters and people who are speaking out against police action,” said Corey Shapiro, ACLU of Kentucky’s legal director. “It is a bedrock principle of the First Amendment that people should be able to criticize police action, even if it’s using offensive speech.”
The provision of the bill that would ban insulting police was modeled on laws in other states prohibiting comments that could reasonably push a person to violence, said Carroll, himself a former police officer. Those statutes, which are not specific to anti-police comments, rely on an exception to the First Amendment known as the “fighting words doctrine,” which holds that words inciting immediate violence are not constitutionally protected.
But Caroline Mala Corbin, a constitutional law professor at the University of Miami, said that doctrine may not apply to Kentucky’s bill because it specifically targets taunts aimed at police, rather than insulting language aimed at anyone. She said the doctrine, whose legal force is also fading, does not protect government actions to ban only certain viewpoints.
“Clearly, the government is trying to ban speech it does not like,” Corbin said of the Kentucky provision. “And that is a paradigmatic violation of the Free Speech Clause” of the First Amendment.
Other language in the bill seeks to counter the movement to “defund the police” by requiring that local governments “maintain and improve” funding to their law-enforcement agencies. The bill also protects people who use “defensive force” during a riot and criminalizes bringing items that could be used as weapons.
After passing the state Senate 22-11 on Thursday, the bill will go to the state’s House of Representatives for a vote. Spokespeople for Democratic Gov. Andy Beshear did not respond to a question about whether he would sign the bill into law if it reached his desk.