Is Free Speech Really Free?

On March 5, Senate Bill 211 (SB211)  advanced out of a Kentucky Legislature Senate Committee which would make it illegal to insult or taunt a Kentucky law enforcement officer to the point where it could provoke a violent response. The bill, sponsored by retired police officer Sen. Danny Carroll, R-Benton (Ky.), is in response to the violence and vandalism that occurred both in Louisville last summer and at the Capitol Building in January. 

According to Carroll, the bill’s goal is to protect first responders, the public, and both public and private property. 

The bill passed 7 to 4 on Thursday, March 11, 2021, but not without opposition from Sen. David Yates, D-Louisville (Ky). He told committee members the words in the bill are “dangerous” and would send the wrong message to the public. And in my opinion, he’s right. 

There have been many arguments over the past year on what the First Amendment means and who it actually protects. So many people use the First Amendment as if it were a blank check to say whatever they want without penalty or retribution, when in reality – it only protects individuals from a very specific group of people: The Government. 

Let’s start with looking at the First Amendment, verbatim: (SOURCE)

The words people tend to overlook are “the Government.” I can understand how that can happen, as it’s kind of like it’s only part of the last clause, but it’s actually regarding the entire statement. 

The First Amendment means the Government can’t censor you. Per the First Amendment, you have the right to say whatever it is you wish (as does the press) to the Government without fear of retribution. The word “Government” doesn’t mean only federal either. It means Government in its entirety: Federal, State, County, and Local. Law Enforcement falls under County or Local Government, so what Kentucky is trying to do – in my opinion – is technically against the First Amendment. (And yes – through the Department of Homeland Security, Law Enforcement is considered a Government Office.)

The Difference Between Government and Private Companies with First Amendment

While the Government cannot censor you, private companies can. For example, if you post something on social media and the private company that employs you decided that the things you are saying are not in line with their rules or their values, it is well within their right to respond. This could mean terminating you from your job or expelling you from your school, and they have the right to do that. Why? Because they are a private company they are not bound by the same rules as the Government. 

Where you are protected from the Government’s retaliation when you speak your mind freely, you are subject to consequences from a private company. If that particular entity decides they don’t want to affiliate with you, it is well within their rights to remove you from their business or school, and there is nothing you can do about it.

It’s unfortunate that so many students lost their scholarships and were expelled. This could have been an opportunity to educate them in a way that didn’t include them losing the opportunity to still obtain an education. That being said, I do think an example needed to be made, because young adults are watching and learning from this experience. Kids in high school and middle school are seeing what’s happening, and it’s my hope they learn from the expelled students’ mistakes and self-police their social now.

The Kentucky Senate Bill and The Future

Where would the line be drawn then? This bill could eliminate that protection against speech that could incite violence. Who gets to decide what that language is? And when they get to use this bill to arrest people who are speaking ill to them? It’s a slippery slope that could be dangerously abused by law enforcement’s “bad cops.”

If this bill passes and other states follow suit, where would the line be drawn? 

This bill could eliminate the protection against speech that could incite violence. The word could is subjective. Who gets to decide what language could incite violence? Is it going to be based on the officer’s discretion, a list of words predetermined, or something the courts decide after the person’s arrested?

It’s a slippery slope that could be used by law enforcement and the criminal justice system that can either undermine First Amendment rights or strengthen law enforcement’s qualified immunity. 

Before we go any further, I want to make it clear that I’m not okay with people berating our nation’s law enforcement. Our men and women in uniform do a job that many of us could never think to do on our own, and we should be thankful for what they do to keep us safe. I’m also aware that there are bad cops out there making the good cops look awful, and those bad ones who need to be weeded out. 

However, I’m also against censorship, which this bill represents. As a former government social media professional, I couldn’t censor anything said by the public on the official agency pages beyond what the platform’s rules demanded. Meaning, if an individual chose to call the department’s director something cruel and evil, I couldn’t delete it or hide it. It’s your First Amendment right to say what you want to a government entity. Outside of each individual Social Media platform’s rules (such as certain bits of profanity are blocked automatically), your comments are protected. 

It makes me nervous to think about what could happen next with a bill like this being passed. This bill effectively censors your individual speech to law enforcement. What would be next? What you could say to the Mayor? Congressmen and women? Your neighbor? What if they make it so you can’t speak at all when you leave your house? This might sound like an exaggeration but at the rate, things are going… one can never be too sure what will happen.  It will just be a domino effect once one right disappears, with many more to follow.