Last summer, at the height of the protests over the murder of George Floyd, a teenage protester in Everett, Washington was arrested on assault charges. His crime? Dangling a donut on a wooden stick in front of sheriff’s deputies from several feet away and yelling profanities. The charges were later dropped after a review of the video showed no contact with the officers or anyone else. However, if a new bill being mulled in Kentucky passes, actions like this will be enough to get you jailtime in the Bluegrass State.
Senate Bill 211 would impose a potential penalty of up to three months in jail on any person who “accosts, insults, taunts, or challenges a law enforcement officer with offensive or derisive words” or engages in “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.” Criminal penalties could also include a fine and loss of government assistance.
Currently, police already have a range of options at their disposal to unlawfully arrest protesters engaged in constitutionally protected speech. Charges of obstructing police business, assault and resisting arrest are commonly used as a pretext for jailing protesters but these rarely hold up in court.
The new law in Kentucky would give officers a powerful weapon to arbitrarily suppress speech. Breonna Taylor, a Black woman, was killed in Louisville a year ago, making the state a hotspot for unrest. There’s little doubt that last summer’s uprisings against the police were on the minds of the Republican legislators who authored the bill and shepherded it rapidly through committee.
Given the balance of power in Kentucky’s General Assembly right now, there’s a good chance that this bill could become law before the end of the month.
At the same time, another bill in Oklahoma is under consideration that could potentially make it illegal to post videos of police officers. Though it’s nominally designed to prevent police from being “doxxed” — i.e. having their private information posted— civil liberties advocates like the ACLU say it could be interpreted broadly to prohibit the publication of police videos and images.
Both bills are on dubious constitutional footing. Though the Supreme Court has yet to weigh in on the matter, multiple federal circuit courts have ruled that filming the police is constitutionally protected speech. Also, courts at nearly every level have upheld a person’s right to insult or curse police — though there are exceptions for direct threats.
However, challenging these laws in court might take years, and in the meantime, protesters could be subject to unlawful detention or arrest. What’s more, the Trump Administration fundamentally shifted the balance on federal courts to the right — most dramatically in the very Southern districts and circuits where these cases would be heard. Many of the new judges are hard-line conservative ideologues who could conceivably reverse the existing precedents.
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These bills are part of a larger trend of states proposing laws that give police new legal tools to crack down on protests.
A number of states have already passed measures that criminalize protests near “critical infrastructure” and those that obstruct traffic.
There are also widespread efforts to indemnify drivers who injure or kill protesters blocking roads, which is particularly horrifying, given the large volume of car-based attacks against protesters last year.
Among the harshest is a bill now being discussed in Florida. Introduced in January, SB484 would expand the definition of “riot” and impose draconian penalties. Under the law, a person who attends a peaceful protest that turns violent could be kettled, charged with a felony and imprisoned for a maximum of 15 years — the same penalty as sexual assault.
The law makes it a third-degree felony to “deface” a monument or a flag, which means that simple vandalism would be punished by a prison sentence of up to five years.
Last fall, Georgia passed another bill that created a crime of “bias-motivated intimidation” against “first responders.” It effectively creates a new class of “hate crime” against emergency personnel, including police, increasing the already high legal sanctions for assaulting and harming an officer. Similar “Blue Lives Matter” laws were proposed after the first uprising in Ferguson, and some passed, most notably in Louisiana.
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At a time when folks across the country are continuing to mobilize against police violence, these measures represent a clear attempt to chill free speech and discourage people from exercising their constitutional right to protest. Police around the country already abuse the law to unfairly jail and punish protesters. Their powers need to be restricted not expanded.