Many Kentuckians have followed the recent debate in the Kentucky Senate regarding Senate Bill 211, a bill allegedly intended to protect law enforcement from verbal bullying.

The underlying theme of this law is that if as a Kentuckian you do not support this law, you do not support law enforcement. On the other hand, it could also be said that if you do support this law, you do not support free speech.

Mark Wohlander

Mark Wohlander

A good starting point for a reasoned discussion regarding this newly proposed law is to ask the rhetorical question as to why Senate Bill 211 was introduced in the Senate Committee on Veterans, Military and Public Protection. Surely, a law of this constitutional significance should have been introduced in the Senate Judiciary Committee, where the law could have been reviewed and dissected based not only on U.S. Supreme Court precedent but also the legal consequences related to the enforcement of words which will only be defined when they are uttered to the so-called reasonable and prudent police officer.

In this case, the senator who sponsored this law argued on the floor of the Senate that this law was constitutional. In doing so, he relied on Chaplinsky, a 1942 Supreme Court decision that first defined “fighting words.” The next Supreme Court case of note that the sponsor failed to reference was the 1971 decision in Cohen v. California, in which Justice John Marshall Harlan wrote in another important fighting words case that “while the particular four-letter word being litigated here is perhaps more distasteful than most others of this genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. ... Governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.”

While the Cohen case should have ended the discussion regarding the constitutionality of SB 211, the sponsor of SB 211 was not finished. During the floor speech, the sponsor referenced a case from Maine that he claimed supported the legislation. Obviously, the sponsor must have believed that a passing reference to a case from Maine would have been enough to satisfy other lawmakers.

Although the sponsor did not provide a citation to the case, it is likely the sponsor was referencing the 1990 case of State v. Janisczak. What the sponsor left out from this reference were the words of Justice Collins in Janisczak when he wrote that “epithets directed at police officers are not fighting words merely because they might be so if directed at some other person. The nature of the experience, training, and responsibilities of police officers must be considered in determining whether a given defendant's language constituted fighting words.”

Well, enough about the law the sponsor relied upon to argue for the constitutionality of SB 211. Let us now turn to one of the most chilling provisions of SB 211.

The law provides that anyone arrested for verbally bullying a police officer must be held for at least 48 hours before being taken before a judge to secure a bond. Imagine for a moment, a teacher is arrested for verbally bullying a police officer at a rally at the Capitol; or a friend or family member is arrested at a pro-life rally in downtown Lexington; or as in this case, those who gathered and protested peacefully were arrested for their support of Breonna Taylor. All of those arrested for exercising their First Amendment rights would find themselves confined to a county jail for at least 48 hours for simply exercising their First Amendment rights of speech and assembly.

Sadly, the sponsor was not satisfied to end there. Instead, the sponsor also included increased penalties in the law, many penalties, which were once misdemeanors, have now been amended to felonies. Very candidly, the sweeping chilling effect of SB 211 is nothing like we have seen in America since the era of McCarthyism in the early 1950s.

On a final note, the real elephant in the room when the sponsor of SB 211 argued for the passage of the bill was the underlying theme of SB 211: that anyone who would have had the audacity to engage in First Amendment free speech in Louisville in support of an unpopular subject could and would find themselves confined in the proverbial stocks of Medieval times in the public square as a form of humiliation for their unpopular views.

In the words of Justice Antonin Scalia, “… the First Amendment does not permit (a government) to impose special prohibitions on those speakers who express views on disfavored subjects.”

In the end, if this law passes the House and reaches the desk of the governor, one can only hope that the law will be vetoed. And if the law is returned for an override vote, one would only hope that those who supported the law in the first instance will have taken the time to consider SB 211 and the chilling effect it will have on the free speech rights of Kentuckians before casting a vote to overturn a veto of this ill-conceived law.

Finally, even if SB 211 is not passed in the House, hopefully this bill will be a wake-up call for all Kentuckians and Americans that it is time to end the attack on their First Amendment constitutional rights.

Mark Wohlander, a military veteran, former FBI agent and federal prosecutor, practices law in Lexington and eastern Kentucky. His email address is fivesmoothstonesky@gmail.com.

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