FACT CHECK: ACLU Says Kentucky Legislation a Threat to First Amendment

CLAIM: The Courier-Journal in Louisville reports that the American Civil Liberties Union (ACLU) of Kentucky has claimed that proposed legislation designed to protect critical infrastructure projects in the state is “creating a chilling effect on First Amendment Rights.”

“The mere threat of imposing such a harsh penalty over such activity would cause some protesters to second guess if their activities would be a Class D felony and therefore make them second guess if they want to protest,” said Corey Shapiro, legal director of the American Civil Liberties Union of Kentucky.




Like other laws to protect critical infrastructure enacted around the country, this proposed legislation in Kentucky does nothing to infringe upon constitutionally protected First Amendment rights. Instead, it simply states:

A person is guilty of criminal mischief in the first degree when, having no right to do so or any reasonable ground to believe that he or she has such right, he or she intentionally or wantonly defaces, destroys, or damages any property causing pecuniary loss of $1,000 or more; or tampers with, impedes, or inhibits operations of a key infrastructure asset, as defined in Section 1 of this Act.

 A civil action may be maintained under this section against any person that knowingly compensates or remunerates a person to violate Section 2 of this Act and the compensated person is convicted of criminal mischief in the first degree. Liability shall include actual damages to personal or real property caused by the crime and may include punitive damages, court costs, and reasonable attorney fees.

Free speech and the right to protest are key bulwarks of American democracy. Activists remain free to protest, so long as they don’t trespass or cause damage or impede critical infrastructure projects. This legislation simply seeks to protect Kentucky’s infrastructure and keep protesters, law enforcement, and residents safe in the process.