Free Speech

Laws Banning "Impair[ing] the Functions of any Police … Operations"

The Sixth Circuit expresses concern that such bans may be unconstitutionally vague or overbroad.

|The Volokh Conspiracy |

Novak v. City of Parma, decided today by the Sixth Circuit (opinion by Judge Amul Thapar, joined by Judges Gilbert Merritt and Chad Readler), suggests such statutes may be unconstitutional, when applied to speech that supposedly "impair[s] the functions" of the police by leading people to call the police department:

[An Ohio] statute makes it a crime to "use any computer … or the internet so as to disrupt, interrupt, or impair the functions of any police … operations." Ohio Rev. Code § 2909.04(B). To see how broad this statute reaches, consider an example. An activist tweets the following message: "The police are violating our rights #TakeAction #MakeYourVoiceHeard." People in the community see the tweet and begin calling the police department to share their views. A small protest even forms in the town square. Police station employees spend time fielding the calls, and a couple of officers go down to monitor the protest.

Under the plain text of the Ohio statute, have these acts of civic engagement "interrupt[ed]" police operations? Taken at face value, the Ohio law seems to criminalize speech well in the heartland of First Amendment protection. This broad reach gives the police cover to retaliate against all kinds of speech under the banner of probable cause. Critical online comments, mail-in or phone bank campaigns, or even informational websites that incite others to "disrupt" or "interrupt" police operations could violate the law.

Where a statute gives police broad cover to find probable cause on speech alone, probable cause does little to disentangle retaliatory motives from legitimate ones. Thus, this case raises new questions under Nieves v. Bartlett [the recent decision limiting plaintiffs' ability to sue for retaliatory arrests, when there was probable cause for the arrests -EV]. It may be that, based on the Supreme Court's reasoning in that case and others, the general rule of requiring plaintiffs to prove the absence of probable cause should not apply here. We need not decide that now.

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  1. Definitely an overbroad statute. I realize there are borderline cases that have been debated with headlight flashing and the like, but there are definitely many forms of “interference with the police” that are completely protected expression.

    At the very least, I’d like to see (1) a strong scienter requirement and more narrow scope of the statute, i.e., intention to materially interfere with a specific investigation or lawful police order, not simply interference with anything the police is doing; and (2) a carve out for any sort of criticism of the police or publicization of newsworthy police tactics.

  2. Pity the poor deputy prosecutor who had to try this POS criminal case to keep his boss and his comrades-in-arms (the cops) happy.

  3. The challenge in drafting laws like this is imagining, in advance, all the sorts of things that should be covered by the statute, and all the sorts of things that should not be covered by the statute, and then providing a complete and total discernment of each into the proper category.

    Some are obvious. Intentionally tripping an officer while in foot pursuit of a suspect? Yes, definitely. Filming officers while they work in public, while well out of their way. Absolutely not. Being confused by noise and bustle and accidentally stepping on the K9’s tail? Uh…

    How about proceeding at posted speed limit while unmarked police car rushes to deliver unexploded WWII ordnance to the bomb range for disposal? Ordering the last jelly-filled donut in the counter-case while the sergeant is behind you in line? Walking through the crime-scene because they haven’t put up crime-scene-tape yet? Shooing a squirrel into the line of sight of a drug-sniffing dog?

  4. I agree the statute here is over broad. But it seems to me a properly tailored statute could be upheld. In particular, I think the state has a compelling interest in keeping emergency lines clear of hecklers and available for genuine emergencies. People may have a constitutional right to tell the police what’s on their mind, but this right doesn’t extend to the equivalent of denial-of-service attacks.

  5. “Under the plain text of the Ohio statute, have these acts of civic engagement “interrupt[ed]” police operations?”

    Um, no? Not even close? The police take phone calls and went to watch a protest. Those are perfectly normal police operations. What’s being interrupted or impaired or disrupted? That’s no different than saying committing a crime interrupts police operations because the police have to be bothered to investigate and make an arrest.

    1. If policing is not part of “normal operations” what is the point of having police?

  6. Some are obvious. Intentionally tripping an officer while in foot pursuit of a suspect? Yes, definitely. Seperti : Jasa Konsultan SEO Filming officers while they work in public, while well out of their way. Absolutely not. Being confused by noise and bustle and accidentally stepping on the K9’s tail?

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