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Legislation Targets Free Speech Rights of Police Officers

A new bill, AB 2547, is making its way through the legislature threatening to punish police officers for speech redefined as “bias conduct” and for affiliating with undefined “hate groups.”  Although US Supreme Court has repeatedly defended the free speech rights of public employees, the California legislature continues to target law enforcement officers and recruits who express unpopular political or religious viewpoints in their private life. 

Last year, Assemblyman Ash Kalra (D-San Jose) ran into trouble when he introduced a similar bill, AB 655, targeting police officers who expressed “hate” or were affiliated with “hate groups.”  The mistake Kalra made was defining “hate” so broadly that it included police officers expressing religious or political views on abortion, marriage, and gender, or even those who belonged to a conservative church, synagogue, mosque, or political party. Under pressure, Kalra narrowed his definition of hate and later abandoned the bill.

The author of AB 2547, Assemblyman Adrin Nazarian (D-Van Nuys), learned from Kalra’s error. His bill puts Governor Gavin Newsom’s Commission on Peace Officer Standards and Training in charge of defining what “bias conduct” means, as long as it includes the following very vague principles. First, “biased conduct includes conduct resulting from implicit and explicit biases.” Next, “conduct is biased if a reasonable person would conclude so using the facts at hand.” Bias conduct may occur in public “or online, such as conduct on social media.” The commission is also supposed to “develop guidance” to identify “social media profiles and for searching for, and identifying, content indicative of potential biases, such as affiliation with hate groups.” No definition of a hate group is provided in the bill. 

Attorney Matthew McReynolds with the Pacific Justice Institute sees AB 2547 as flagrantly unconstitutional. “One can hardly imagine a more unconstitutional manner for punishing law enforcement officers and applicants based on their expression of viewpoints, their ‘potential’ or ‘possible indication’ of bias, and their associations with expressive groups,” McReynolds wrote this letter of opposition. “AB 2547 ushers in a new era of unknowable and ungovernable standards where possible, potential, implicit bias — whatever that may mean — becomes the ultimate censor’s tool to exact retribution on one’s enemies.” 

Just because Nazarian leaves defining biased conduct and hate groups up to a state agency, freedom of speech problems are not resolved, McReynolds explains. “Officers” and censors” are left to guess which religious or political views would be considered “biased.” 

“The arbitrary ‘hate group’ label as a basis for exclusion from law enforcement also threatens a new era of McCarthyism,” he wrote. “This time directed against religious and conservative law enforcement officers and applicants.”

AB 2547 had completely different language when it was approved by the Assembly earlier this year, but the text was stripped out and the bill was reintroduced on June 13, 2022, when the bill was in the Senate. The bill is currently in the Senate Appropriations Committee. If it makes it out of committee next week, the bill will be voted on by the full Senate, before going back to the Assembly for a concurrence vote. 

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