FRANKFORT, Ky. — Kentucky’s Republican-supermajority legislature is taking steps to criminalize disruptive protests inside the Capitol, raising concerns among advocates that their right to challenge authority will be chilled.
Before big votes on polarizing issues, throngs of protesters have waved signs and shouted out synchronized chants at the foot of the steps that lawmakers climb to reach the House or Senate chambers, creating a din that echoes throughout the ornate statehouse. Activists sometimes pack committee rooms in the Capitol Annex or crowd the galleries to monitor floor debates.
Teachers, union members and abortion-rights supporters have staged massive demonstrations, but it was a protest against anti-transgender legislation — which resulted in the arrests of some demonstrators on criminal trespassing charges last year — that prompted the Kentucky House this week to approve new criminal offenses for interfering with legislative proceedings. The bill is now pending in the Senate.
Republican state Rep. John Blanton considers protesting to be “as American as apple pie,” and “part of the foundation of who we are and I’m fully supportive of that.” But he said there should be consequences when demonstrators “cross the line” and become disruptive.
“The purpose of House Bill 626 is to ensure that the General Assembly has an opportunity to legislate without interference from people who wish to prevent us from doing our work on behalf of our constituents,” Blanton said.
Other state legislatures also have criminalized disruptions. Georgia has a law, challenged in court, making a third such offense a felony. Until 2020 in Kansas, people who wanted to stage an event at the statehouse, including a protest, had to have a legislative sponsor and permit, and handheld signs were banned. The rules were relaxed after a lawsuit, allowing handheld signs as long as people don't attach them to a wall or railing. A permit or sponsor isn't needed unless someone wants to reserve a specific space like a committee room.
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Under the Kentucky bill, “disorderly or disruptive conduct” intended to disrupt or prevent lawmakers from doing business would be a misdemeanor for a first offense and a felony for repeat offenses. The offenses also include impeding a lawmaker or aide from entering a legislative room or refusing to leave a legislative facility with the intent to prevent lawmakers from doing business.
Activists worry it could chill their rights to challenge authority.
“When lawmakers are willfully stripping away civil rights, what other avenues do Kentuckians have but to protest their actions?” said Chris Hartman, executive director of the Fairness Campaign, a Kentucky-based LGBTQ+ advocacy group that led opposition to the anti-transgender bill.
ACLU of Kentucky legal director Corey Shapiro said he's concerned that "people could be arrested for simply expressing their opinions to legislators.”
Lawmakers can generally criminalize actions impeding their orderly business, provided that “reasonable alternative avenues of speech” are available, said University of Kentucky constitutional law professor Joshua Douglas.
“My concern with the bill is that it does not define ‘disorderly or disruptive conduct,’ so it could be seen as too vague under the First Amendment,” Douglas said. “Laws that limit speech must be written very precisely so it is clear what speech conduct is prohibited for a good enough governmental purpose.”
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Twenty years ago, when Democrats still controlled the House, hundreds of hymn-singing protesters exhorted lawmakers to support a constitutional amendment barring same-sex marriages, which voters then approved overwhelmingly.
Now the backlash is against Republican bills. Teachers thronged the Capitol a few years ago to protest pension legislation and other measures they considered to be anti-public education. Abortion-rights supporters spoke out, to no avail, as GOP lawmakers passed anti-abortion laws, culminating in the state's near-total ban.
Tensions boiled over last year when the House overrode Democratic Gov. Andy Beshear's veto of the bill banning access to gender-affirming health care for young transgender people. As prolonged chants rang out from the gallery, nearly 20 protesters were removed and charged with third-degree criminal trespassing.
“There were many of you that had your buttons to push last year that wanted to speak, that had your voices for your constituents silenced,” Blanton said to his House colleagues on Monday. “Because we just had to move on and take the vote, it got so out of control. So they were trying to impede our process.”
Blanton, a retired state police major, said the proposed new criminal offenses would be a better fit than trespassing statutes, since the Capitol is a public place.
As for how law enforcement officers would interpret a demonstrator's intent when enforcing the measure, their first response would be to observe and, if they can identify people being disruptive, ask them to leave, Blanton said.
“They’re not just going to go up there and randomly start arresting people,” Blanton said. “We’ve never seen that happen here.”
Such reassurances haven't eased the activists' concerns. “From my personal experience, state troopers are nothing but antsy when it comes to protesters,” Hartman said.
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