The bill contains the following provision:
(1) A person is guilty of disorderly conduct in the second degree when in a public place and with intent to cause public inconvenience, annoyance, or alarm, or wantonly creating a risk thereof, he:
(a) Engages in fighting or in violent, tumultuous, or threatening behavior; (b) Makes unreasonable noise; (c) Refuses to obey an official order to disperse issued to maintain public safety in dangerous proximity to a fire, hazard, or other emergency;[ or] (d) Creates a hazardous or physically offensive condition by any act that serves no legitimate purpose; or (e) 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.
Police officers are representatives of the state and, as a result, are often the focus of insults and taunts by citizens. Most of us condemn such verbal attacks but they often reflect deeper political or social issues.
Officers are trained to resist impulses that have “a direct tendency to provoke violent response” among citizens. Courts have upheld the right of citizens to insult police, which is an unfortunate aspect of policing. Thus, in 2015, the Washington Supreme Court ruled that police could not arrest a 17-year-old who called them “pigs.” Associate Chief Justice Charles Johnson, in the majority opinion, wrote that when “individuals exercise their constitutional rights to criticize how the police are handling a situation, they cannot be concerned about risking a criminal conviction for obstruction.”
In Kentucky, the sponsor, Republican state Sen. Danny Carroll, said that he was responding to protests last summer and had a particular sensitivity to such abuse as a former police officer.
Carroll’s motivation is commendable but I have serious doubts that his legislation is constitutional. We ask a great deal from our officers. However, this legislation would curtail core protected speech under an ambiguous criminal standard.