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Monday, July 29, 2019

Laws Banning "Impair[ing] the Functions of any Police … Operations"

By Eugene Volokh - July 29, 2019 at 04:02PM

Novak v. City of Parma, decided today by the Sixth Circuit (opinion by Judge Amul Thapar, joined by Judges Gilbert Merritt and Chad Readler), suggests such statutes may be unconstitutional, when applied to speech that supposedly "impair[s] the functions" of the police by leading people to call the police department:

[An Ohio] statute makes it a crime to "use any computer … or the internet so as to disrupt, interrupt, or impair the functions of any police … operations." Ohio Rev. Code § 2909.04(B). To see how broad this statute reaches, consider an example. An activist tweets the following message: "The police are violating our rights #TakeAction #MakeYourVoiceHeard." People in the community see the tweet and begin calling the police department to share their views. A small protest even forms in the town square. Police station employees spend time fielding the calls, and a couple of officers go down to monitor the protest.

Under the plain text of the Ohio statute, have these acts of civic engagement "interrupt[ed]" police operations? Taken at face value, the Ohio law seems to criminalize speech well in the heartland of First Amendment protection. This broad reach gives the police cover to retaliate against all kinds of speech under the banner of probable cause. Critical online comments, mail-in or phone bank campaigns, or even informational websites that incite others to "disrupt" or "interrupt" police operations could violate the law.

Where a statute gives police broad cover to find probable cause on speech alone, probable cause does little to disentangle retaliatory motives from legitimate ones. Thus, this case raises new questions under Nieves v. Bartlett [the recent decision limiting plaintiffs' ability to sue for retaliatory arrests, when there was probable cause for the arrests -EV]. It may be that, based on the Supreme Court's reasoning in that case and others, the general rule of requiring plaintiffs to prove the absence of probable cause should not apply here. We need not decide that now.


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