Kentucky is considering passage of a bill that, according to media reports, would make it a crime punishable by up to three months to insult a police officer, or to accost, taunt, or challenge “a law enforcement officer with offensive or derisive words.”
Most media articles on the subject contain some form of the headline, “Kentucky Bill Would Criminalize Insulting a Police Officer.” Is that true? Does the proposed Kentucky bill make it a crime to insult a police officer, and is that constitutional?
Below, we’ll take a look at why the proposed Kentucky bill does not criminalize insulting a police officer, why that would be unconstitutional if true, and why this issue has been settled by the courts for nearly a hundred years (which means there is no qualified immunity from a lawsuit for wrongful arrest).
Why Isn’t It a Crime to Insult a Police Officer?
The US Supreme Court and the SC Supreme Court, going back to at least 1942 in Chaplinsky v. New Hampshire, have been clear that laws cannot criminalize speech, even if the speech involves profanity or insults, with one exception for what the courts have called “fighting words.”
When applied to police officers, the courts have found even greater protection for individuals who curse at or insult police officers, and the courts have repeatedly said that “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”
As Justice Brennan stated in City of Houston v. Hill:
The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.
So, when is criticism of police officers protected under the First Amendment, and when can a person be arrested for it?
The First Amendment Protects Criticism of Police Officers
If it’s speech, it’s directed at a police officer, and it’s not “fighting words,” it is protected by the First Amendment. When speech is directed at a police officer, there may be a higher standard for “fighting words” than when the speech is directed at someone other than an officer.
As the court said in Lewis v. New Orleans, “[a] properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen, and thus be less likely to respond belligerently to fighting words.”
In most cases, “insulting a police officer” will not rise to the level of “fighting words.” Speech that state and federal courts have held is protected, against police or other persons, includes:
- Saying “Godd**n mother*****g police” (Lewis v. New Orleans),
- Voicing objections to police officers (Norwell v. Cincinnatti),
- Yelling obscenities at police officers while waving your arms (Springdale v. Butler),
- Yelling at police officers (State v. Perkins),
- When an officer called to a juvenile, and the juvenile responding with “F*** you, man, I ain’t got to come over there (In re Jeremiah),
- Being “extremely argumentative and loud and boisterous” in view of the general public (State v. Bailey), and
- Saying “F*** you,” whether it is to a police officer, a school teacher, or anyone else (see, Landrum v. Sarratt).
The “Fighting Words Exception” to the First Amendment
Why isn’t the proposed Kentucky law unconstitutional?
Although it could be applied in an unconstitutional manner, it appears that the proposed bill limits its application to actions “that would have a direct tendency to provoke a violent response from the perspective of a reasonable and prudent person.”
In other words, it is limited to “fighting words,” as defined by the US Supreme Court. Examples of “fighting words” that are not protected by the First Amendment include:
- Shouting obscenities and racial slurs at police officers (City of Columbia v. Brown),
- Using profanity but you are also grossly intoxicated (State v. Pittman – regardless of the profanities, it is a violation of SC’s public disorderly conduct statute to be grossly intoxicated in public),
- Calling an individual (not a police officer) a crackhead, calling the individual’s mother a bit**, using the F word, and yelling angrily at a person and his mother in the courthouse parking lot (Landrum v. Sarratt),
- Yelling “shut your f***ing mouth, you bi***” to a 13-year-old (see, Landrum v. Sarratt), and
- Repeatedly yelling “F*** you” at a school principal, while gesturing with the middle finger and tailgating the principal and his family through a parking lot (see, Landrum v. Sarratt).
So, what’s all the fuss about? Kentucky is proposing to pass a bill that looks constitutional on its face and that expressly limits its application to fighting words?
First, it’s possible that the bill’s sponsors are looking for free press by announcing that they are going to protect police officers from insults – a hot topic and a valid concern given the events of the past year.
Second, media outlets are deliberately trolling and attempting to create controversy by blaring headlines like “Bill Would Criminalize Insulting a Police Officer” when the bill does not actually criminalize insulting a police officer.
If the bill, when passed, does not limit its application to “fighting words,” any charges that are brought against any individual based on protected speech should be dismissed by the courts, and the individual may then have a State Tort Claims Act or Section 1983 federal lawsuit against the officer or his department…
Criminal Defense Attorney in Conway, SC
Attorney Johnny Gardner has over twenty years of trial experience defending criminal accusations in SC courtrooms, including SC charges that may be based on conduct protected under the First Amendment like:
- Disorderly conduct,
- Breach of peace,
- Interfering with a police officer, and
- “Failure to obey.”