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.