First Amendment

The Kentucky Bill That Would Criminalize Words That Offend Cops Also Would Authorize Arrests for Distributing Water Bottles

The heavy-handed measure, a direct response to the protests provoked by the shooting of Breonna Taylor, looks like an attempt to deter constitutionally protected activity.

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A bill approved by the Kentucky Senate last night would make it a crime to supply rioters with anything that can be used as a weapon, possibly including water bottles and other seemingly innocuous items that can be deployed as projectiles. S.B. 211, which was approved by a vote of 22 to 11, classifies such conduct as a Class A misdemeanor, punishable by a $500 fine and up to a year in jail.

The bill, which will now be considered by the Kentucky House of Representatives, says "a person is guilty of riot in the second degree when…he or she knowingly provides supplies to a riot that can be used as weapons or dangerous instruments." It defines riot as "a public disturbance involving an assemblage of five (5) or more persons which by tumultuous and violent conduct creates grave danger of damage or injury to property or persons or substantially obstructs law enforcement or other government function." The definition of dangerous instrument includes any "instrument," "article," or "substance" that, "under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or serious physical injury."

Since violent protesters have been known to hurl water bottles at police officers, they would readily qualify as dangerous instruments. Likewise, any other weaponizable "article" commonly seen at protests, including bullhorns, flag poles, and signs attached to sticks, would count. A person who "knowingly provides" such items to rioters would be guilty of a Class A misdemeanor, regardless of his intent and whether or not he actually participated in the riot. And since knowingly modifies provides, it is not even clear that someone who distributes water bottles or signs at a protest would have to be aware that the recipients might use them as weapons.

As Reason's C.J. Ciaramella noted last week, the same bill also authorizes the arrest of anyone who "accosts, insults, taunts, or challenges 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." That would be "disorderly conduct in the second degree," a Class B misdemeanor punishable by a $250 fine and up to 90 days in jail.

You may question the premise that a "reasonable and prudent person" would respond to a verbal assault with a physical assault. But Kentucky legislators seem to take it for granted that cops will react violently to words that upset them, even though they would arrest any ordinary citizen who did the same thing. Based on that expectation, this bill's supporters are trying to criminalize offensive speech.

The constitutional defense for that policy presumably would rely on the hoary and highly dubious "fighting words" doctrine. In the 1942 case Chaplinsky v. New Hampshire, the Supreme Court unanimously held that the First Amendment does not protect words that "by their very utterance inflict injury or tend to incite an immediate breach of the peace." The case involved a Jehovah's Witness named Walter Chaplinsky, who attracted a hostile crowd by denouncing organized religion as a "racket" on the streets of Rochester, New Hampshire. Chaplinsky was arrested for calling a city marshal "a goddamned racketeer" and "a damned fascist."

Chaplinksy's insults violated a New Hampshire law that made it a crime to "address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place," to "call him by any offensive or derisive name," or to "make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him." The New Hampshire Supreme Court had interpreted that law as applying only to words that "have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed." Relying on that understanding of the law, the U.S. Supreme Court concluded that Chaplinsky's conviction did not violate the First Amendment.

Since then, the Court has repeatedly narrowed the "fighting words" exception to the First Amendment, and it has never again relied on it to uphold speech restrictions, making the doctrine's continuing relevance doubtful. As Ciaramella pointed out, several federal appeals courts have ruled that the First Amendment does not allow police to arrest people for flipping them off.

In 1997, the U.S. Court of Appeals for the 6th Circuit, which includes Kentucky, ruled that a Livonia, Michigan, police officer violated clearly established First Amendment rights when he arrested John Sandul for shouting "fuck you" and extending his middle finger as he drove by a group of abortion protesters. The charge in that case, like the charge that would be authorized by S.B. 211, was disorderly conduct.

The 6th Circuit noted that "the fighting words exception is very limited because it is inconsistent with the general principle of free speech recognized in our First Amendment jurisprudence." It concluded that "Sandul's words and actions do not rise to the level of fighting words," because they "were not likely to inflict injury or to incite an immediate breach of the peace." In fact, "it is inconceivable that Sandul's fleeting actions and words would provoke the type of lawless action alluded to in Chaplinsky."

The behavior targeted by S.B. 211—"insults" and "taunts" delivered directly to police officers by protesters—is closer to that scenario. But a constitutional challenge is inevitable if Kentucky passes this law and police use it to arrest people based on nothing more than "offensive or derisive words" or "gestures." Such a case might even give the Supreme Court an opportunity to scrap the ill-considered fighting words doctrine entirely.

The American Civil Liberties Union of Kentucky notes that S.B. 211, which also would enhance penalties for existing crimes committed during protests, "is a direct response to the Breonna Taylor protests that took place in Louisville last summer; the bill's sponsor admitted as much during a committee discussion." In that light, this heavy-handed bill—especially the provisions that would convert heretofore legal actions into crimes—looks less like a public safety measure than an attempt to deter constitutionally protected activity.

NEXT: Report: CDC May Relax Its Disastrously Strict School Distancing Rules

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  1. “The bill, which will now be considered by the Kentucky House of Representatives, says ‘a person is guilty of riot in the second degree when…he or she knowingly provides supplies to a riot that can be used as weapons or dangerous instruments.'”

    This does not seem all that unreasonable, especially considering the fact there intent is an element of the crime.

    “Since violent protesters have been known to hurl water bottles at police officers, they would readily qualify as dangerous instruments.”

    Come on, now. A water bottle is not the same as a bottle of frozen water (which is basically a big fucking rock), or a bottle filled with caustic substances. It is not at all insane or crazy to call these things “dangerous instruments.”

    1. ^ Libertarians who believe that politicians and prosecutors will only use this law in a reasonable and just manner.

      Get the fuck outta here, bootlicker.

      1. One, I never said that. Two, you do not have a libertarian bone in your body so your concern trolling is a disingenuous batch of bullshit, just like everything else that drops passively out of the crusted asshole that you euphemistically refer to as your mouth.

        1. I made the dummy mad.

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      2. Now tell us again how falsifying a FISA warrant to spy on a rival political campaign and spend 3 years and 100 million dollars on a political witch hunt that turned up nothing was completely legitimate and how shooting an unarmed woman in the face for breaking a window when there was a SWAT team standing less than 10 feet behind her was a justified shooting.

        Go fuck yourself with a jackhammer you authoritarian state worshiping piece of shit. You really think you’re going to get away with that gaslighting?

        1. Nothing but 40 some convictions, proved coordination between members of Trump campaign and Russian intelligence, and seized more money than it cost? That investigation?

          Get your facts right.

          1. Oh wow!

            Are you actually still claiming that there was collusion between Russian Intelligence and the Trump Campaign?

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          2. Trump’s been a KGB asset since the 80’s, and you’ve been retarded since birth.

            1. It’s all in here, dum dum.

              Try reading and educating yourself. That means reading things you may not like or agree with .

              https://www.intelligence.senate.gov/publications/report-select-committee-intelligence-united-states-senate-russian-active-measures

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                Even the part about you being retarded since birth?

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              2. You actually think that we don’t know what was in that report? What kind of idiot posts a famous report and expects that we wouldn’t know what it said and wouldn’t bother to read it. You’re such a pig-ignorant clown.

                Come on, DOL, you dishonest fuck.
                Point out the part in the report that backs your assertion that there was collusion between Russian Intelligence and the Trump Campaign.

                1. This is what the retarded cunt always does, that’s why I baited him into posting it yet again. He posts the link to the Mueller report and claims it says literally the complete polar opposite of what it actually says, hoping nobody will notice I guess.

      3. I can totally see the police trying to claim that a water bottle is a dangerous weapon. But then again they could already do that. I’m far more concerned with the insulting clause, several more neutral analyses I’ve seen agree that while it will eventually be struck down by a high court, it is very likely to be abused while it works it’s way up the system.

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    2. Look at those blunt instruments hanging off the ends of your arms.

    3. Uhm, no “intent” is not an element of the crime. Or more precisely, it is not the intent you imply.

      “knowingly” modifies only “provides”, not “can be used”. So if you knowingly give me a stick (and how are you know going to know that you gave it to me), then you are liable whether or not you knew that I would be taking it to the riot rather than using repair a table. Even if you reinterpret the location requirement, you would still be violating the law if you knowingly gave me the stick even if you also knew that I needed it to splint someone’s leg.

      It’s a poorly worded and clearly unconstitutional law and the “knowingly” does not rehabilitate it.

      That said, I also agree that the attempt to interpret a water bottle as something able to cause “death or serious injury” seems a bit hyperbolic. But in the author’s defense, we have seen police and prosecutors make even more specious arguments.

      1. Arghh. Can we please have an edit button?
        That should have been “and how are you not going to know…”

      2. “[K]nowingly” modifies only “provides”, not “can be used.”

        I disagree. That is not how how English works. It is also not how statutory construction works. “Knowingly” connotes possessing knowledge of every subsequent element delineated, which is not the same as “voluntarily” giving said supplies to a suspected rioter without any knowledge that they can or will be used as weapons. The intent to give someone something with knowledge that it can be used as a weapon is plainly an element.

        Having said that, the proposed law is vague enough such that it can, and likely will, be subject to misuse. But, I think the vagueness problems stem from the definition of a “dangerous instrument,” not the element of intent. Given the ambiguity, any competent judge should have no problems construing the ambiguities against the government (i.e. The Rule of Lenity). This is not to say that the law will not be abused by overzealous prosecutors; it probably will be. But, this criticism can be made of nearly every criminal law presently on the books in most jurisdictions in this country.

        1. In fact, I even go further and argue that the definition of “dangerous instruments” is unconstitutionally vague.

          By way of example, New York City had a long history of construing its prohibition on “gravity knives” as including any type of folding knife that could be opened using centrifugal force. So, NYPD cops would routinely stop people for possessing common folding knives and would then stand there flicking the knives for as long as it took them to even marginally displace the blade from its closed position — then they would make the arrest.

          Fortunately, this absolutely absurd law was struck down in 2019 as being unconstitutionally vague.

        2. You can disagree about the intent interpretation but court precedent is solidly against you.

          Mind you, I think the rule should be more like what you describe. But that’s not what it is as argued by prosecutors are too often deferred to by courts.

          1. “You can disagree about the intent interpretation but court precedent is solidly against you.”

            If you have a citation, I will take a look. I do not think I am wrong on this.

        3. Actually, there were a more basic notion — of “giving aid to an enemy” — that already applies, but this were an established federal matter that Kenticky cannot trial directly. Have a sip of my water so you can yank it out of his hand, fill it with anyone’s gas, and use it like a molotov cocktail???????

          Now carry this omniscience with you and you can never go wrong. Would the fellow do such a thing? … If you do not know then the law has you already for being a totally useful idiot. I mean, investigating that question may save some trouble.

          “Knowingly” looks straightforward, but it really means being a totally useful idiot. Obviously, clergy personnel would be first to be hit by this threesome law, only to crumble into dust on the spot. But generousity is not for every occasion. The legislature attempts to underscore this point.

          Generousity becomes demonstrably illegal by law. This is not new information under the idea of “aid & abet,” which Kentucky secretaries of law surely have written down more than a number of times decade by decade. But rather than call attention to any one of hundreds of thousands of potential laws, the legislature shall attempt something thrst apparently has never, ever been done before.

          A new law that covers a very specific sort of situation that no one has every dreamed up before until recent criminal activity evidently saw it logged at his trial!

          And guess who responded? Guess who? … Someone caught on and delivered this critical intelligence directly to a representative of the legislative branch. In which state? Which! Yes — !

          The fellow could look half dead, you offer water, then he leaps up like a madman and does the sort of thing any madman must do, I’m sorry to say, because some people look for license at every opportunity. Let a paramedic handle it. Many will crash into a fiery death by riding in an unwieldy ambulance to help someone in or help someone out. I mean, it really happened!

          What I can’t fathom — why does the bill even specify “dangerous instrument? Any one-man army knows that any object can be used to damage or kill any target, even sidewalk chalk if the man would be up for a round of mock graphitti.

          The law there against charity would therefore apply: Give nothing to nobody, and be sure to crank up your mask to its maximum setting. Otherwise, the contagion may spread.

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    5. Learn to read: “knowingly” only refers to supplying and not to the use-as-weapons part.
      As for your second point, why are you bringing ice and caustic chemicals into the discussion? The article didn’t try to defend throwing those things or even claim there would be a legitimate reason to supply dangerous chemicals to protesters.

    6. There are so many “dangerous instruments” that can be used as “projectiles” that everyone possessing just about anything weighing over a few ounces, is guilty of carrying weapons. Even driving your car is employing a dangerous weapon.

      Your reasoning, is why there’s a book entitled “Three Felonies a Day”, and would allow the police to arrest who ever they want, when ever they want. And allow prosecutors like Kamala Harris to prosecute just conservatives, that is after they’re finished with the libertarians.

    7. Come on, now. A water bottle is not the same as a bottle of frozen water (which is basically a big fucking rock)

      Are you under the impression that a bottle of water somehow acquires more mass when it’s frozen?

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  2. “Likewise, any other weaponizable “article” commonly seen at protests, including bullhorns, flag poles, and signs attached to sticks, would count.”

    Counting flag poles as weapons is totally unreasonable. Amiright, MAGA rioter apologists?!

    1. Silence is violence!

    2. >> rioter apologists

      the fuck does one apologize for something that wasn’t?

      1. Careful, now. He’ll call you a “cackle,” smugly.

        1. I’ve been called a greasy thug too. And it never stops hurting.

    3. “Counting flag poles as weapons”

      One six ounce pole with a floofy flag attached.

      I’ll tell you what White Knight, you can hit me with the same rig, and I’ll hit you using the riot baton the flagpoled officer was using on the crowd, and we’ll see which one of us gets actually hurt.
      Deal?

  3. “…Would Authorize Arrests for Distributing Water Bottles”

    Is there an exception for soft water?

    1. Is the container recyclable?

  4. love the 55 subjective words in Kentucky Bill to really make things clear

  5. Glad to see the first amendment finally getting the same common sense approach that has been so successfully applied to the second.

  6. Oh, I think I get it now. We’re back to ACAB, but only outside of Federal Triangle.

  7. my take based on these laws is all protester must walk in silence with their arms at their side. will we now decide what clothing they are allowed to wear during a protest. may i sudjest a white sheet and a pointy hat.

  8. Jeez, another law? So Kentucky has no laws against rioting or providing rioters with rioting supplies? Is there enough paper in the world for all these laws? There should be a law against new laws.

  9. As long as the government pays people to be ‘victims’……the world will never know an end to endless ‘grievances.’

    1. Everything Is So Terrible And Unfair! ™

      That is all.

  10. If you were working at Walmart and someone walked up to you and started screaming obscenities in your face just because you worked at Walmart, what would you like the outcome to be? What if, during your 8 hour shift, this same ass bag stood 2 feet from you, during Covid, all day, screaming obscenities at you and the people you worked with? What if it was your spouse or one of your kids getting screamed at, what would you want the outcome to be?
    That is what the cops put up with last year in most urban areas. Why? Did they have anything to do with that filthy Junkie in Minneapolis?
    If a person started screaming obscenities in your face, a cop could arrest them. You would want them arrested if their verbal assault was unwarranted. Why should we allow cops to be targeted like that? Don’t they have the same rights as everyone else?

    1. If I was working at Walmart and the store did not forcibly eject the screamer, I would sue Walmart. Private property is not a free speech zone. Kick them out or arrest them for trespassing.

      Cops can quit or cops can leave. Police are a National Socialist concept. So too is the FBI. American law enforcement is the Sheriff.

      If you call the police you are calling the Commies to bail your puss ass out. Calling the cops is WHY we are no longer allowed to shoot Antifa types. It’s the cops and the FBI Commies who will murder you.

      Police and FBI are the Commie bastards preventing us from imposing the Constitution.

      End the Commie cops, uphold the US Constitution, and Antifa and BLM terror will be over in a week.

      1. I have been in several countries that had little to no policing. Those places were all solidly settled in the 3rd world.

        1. Read the post.

          American policing is a Sheriff. Elected by the people to manage law enforcement at a local level.

          The FBI and Police are a Progressive, National Socialist Institution.

          The Sheriff is American Law Enforcement.

    2. Get a new job if you can’t hack it, you snowflake fuck.

      1. Make no mistake Rasberry fuckstick. I will choke you into a coma if you yelled in my face. Then I would go find your Mom and bash her fucking head in with a pipe for not aborting a rotted crotch dropping like you. Pussy.

    3. What would happen, is the manager would ask the screamer to leave and call the cops if he didn’t at which point he’d be arrested for disturbing the peace with a nice trip to the jail and time to handle the paperwork, and the fine.

      1. I should add, that if someone is shouting curse words at a cop, the cop can leave. Now if the cop is doing his job there, I’d suggest the shouter not interfere with the cop’s work. And while the shouter has the right to express his opinion (including of the cop) and even make up lies about him (e.g. see Democrats claiming Trump is a Russian spy), I’d suggest people behave in a civil fashion so they don’t expose themselves as intolerant lying cretins. The cops are out doing a job few want to do, that helps protect us, even the screamer if someone attacks him physically.

        And I feel I have to point out, using words (even hate speech) isn’t violence, and the proper response is better words. Democrats these days seem to think, they have the right to defend themselves with violence, when someone says something they don’t like. Based on the corollary to the Golden Rule, they’re telling you to physically attack them, when they say things you don’t like. That is an uncvil and intolerant belief seeking power over civility.

  11. In this comment section- “libertarians” defending this garbage.

    1. Does hating all Cops make you a good Libertarian or does it make you a leftist, Pussy? Is it bad to be law abiding, Cupcake? The only people that I know that hate cops are felons, ANTIFA, BLM, junkies, and convicts. You are in great company with George Floyd, Big Mike, Freddy Gray, and the rest of the “denizens of the ghetto”. I absolutely enjoyed watching my local police force gas the BLM scum. We suffered no damage, no graffiti, no looting and no loud mouth fat cunts clip-clopping down our streets. Our real estate is climbing, how about yours, Junkie? Enjoy your ghetto, leftist Clown.

  12. People opposing this bill just don’t understand the threat that niggers pose to our security. They are like wild apes, and laws must be passed to ensure that they and their white minions can be properly dealt with. Don’t throw water bottles at the police. Don’t show them your ass. These are common sense things, but niggers have none.

  13. Provocative legislation reverses course of human rights to imply that police can ruin fee speech at will before they speak the magic words, “You have the right to remain silent.”

    Sure, police want special powers to intervent in a conflict before it “gets out of control.” What public peace keeper would not want that sort of clue that somene could be stopped prior to taking casualty? Neither haunting free speech say with weapon aimed (“Put the f*** down, now!”) nor threatening free speech can ever possibly achieve such a goal short of “complaint with substance.” For example, we know about ruckus in a crowded theater, we know about threats, of violence, directed upon the president.

    I personally think that one’s conduct matters and that we live in a society where free speech is not only licensed beyond the private domain but also commonly expected.

    If anyone were using words as of mention, it seems to me that police have a right to make inquiries, such as asking whether the person were okay or needs assistance, rather than treat the person like another console villain because the flag of speech turned him brick.

    Punishing for free speech happens to be about the biggest insult anyone can receive where free speech were law, not leastwise because of people literally getting away with murder who pay for the privilege, yet who certainly may. However, although it may be acceptable to do a certain thing does not guarantee that to do so shall be popular.

    People do not always find themselves doing what they want to do on every single day, and their behavior may signal recent upheaval in their lives of severest form. But watching the legislature being described as a senseless mechanism to punish random acts of speech without any gratitude that people were expressing themselves vocally rather than abusively, is not inspiring to me in the least but rather plainly a bit pitiful and trendy in a decline-of-civilization sort of “me too!”

  14. Big Government always looks out for its own, especially its protectors and enforcers. Without the cops to do their dirty work the pols and bureaucrats would be frightened and impotent as they hid in capitol buildings and executive mansions across America.

    Every bad government actor is protected by a cop with a gun and every bad government action is enforced by a cop with a club.

    1. The cops are the issue? Chicago had 4000 shootings last year, 800+ homicides, 1300 carjackings, and 52 mass shootings (4 or more shot). 80% of those shootings were black on black, less than 5% were white. Not one white supremacist was involved. The progressive leadership blames white supremacists and cops. The cops only killed 10 last year. But they were shot at often. Ten cops were shot in Chicago last year.
      If you want to imagine a place that the Cops have been de-fanged until they are fetal. Look no further. Part of Lincoln and Obama’s legacy, Chicago!

      1. Well Chicago.

        No history of gangsters or government and police collusion there.

        1. They aren’t in collusion with the gangs. The gangs are running the show, the progressives keep them out of jail. They cops are laying low because they don’t trust the progressive scumbags that are running the show. They had 15 people shot in one incident last night at 4:40 am. If it was a white shooter, you would have heard about it by now. Is anybody blaming black supremacists? Nope.

          1. What is your proposal to reduce gang violence?

            We can play a little game. Does the libertarian solution to gang violence involve fewer or more dead black people? Too soon to tell?

          2. “They aren’t in collusion with the gangs.”

            True, they are in competition with the gangs, as simply the enforcers for a bigger and more dangerous rival gang.

            “When a legislature decides to steal some of our rights and plans to use police force to accomplish it, what’s the real difference between them and the thief? Darn little! They hide behind the excuse that they’re legislating democratically. The fact they do it by a majority vote has no moral significance whatsoever. Numerical might does not constitute right, no more than a lynch mob can justify its act because a majority participated.”
            ~ H. L. Richardson

  15. Their takeover of the courts has emboldened Republicans to pass all sorts of blatantly unconstitutional shit for the sake of slapping the country with their fascist boners.

    But there’s a tax cut for Jeff Bezos somewhere in there, so libertarians just call it freedom.

  16. A level-headed libertarian would condemn the people setting the precedent, not their victims who, with their backs against a wall, are forced to compromise principle for survival.

    But Sullum is not level-headed, and shows little evidence of being a libertarian. When he invokes libertarianism, it feels like a Leftist clutching his pearls after the “attack on America” of January 6.

    1. How unlucky for you. Because the United States need not compromise any principle in order to act in its own survival. Surviving is its first principal.

  17. Wow, this actually is a good, pro-liberty article that came from Jacob Sullum. Color me surprised.

    One of the first lessons in realistic fighting or combat is that *anything* can be used as a weapon. A cup of coffee, a book, a table, a pencil – anything. This law is thus overly broad and functions only as a cudgel to crush speech which offends those in power.

    Good work. More like this!

  18. Remember that Jacob Sullum actually defended arsonists and rioters trying to bu8rn down a federal courthouse, calling it ‘lawless’ to merely protect the building.

    Right article, wrong author.

  19. Forget it Jake, it’s Kinfucky.

  20. I think giving the middle finger and yelling “Fuck you” unprovoked in public in an already tense situation constitutes disorderly conduct and properly results in a fine. It’s hardly thoughtful political speech and shouldn’t be protected.

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