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Is mouthing off to a police officer protected under the 1st Amendment?

(KTTH, Jason Rantz)

While no one would recommend it, can you mouth off to a police officer without any legal ramifications?

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This question comes on the heels of a recent Supreme Court case. The case involves a man who claims he was arrested for talking back to a police officer at Alaska’s Arctic Man Festival.

“This is about the Arctic Man Festival up in Alaska, described as 10,000 drunk people in the middle of nowhere, racing around in snow machines,” former Washington state Attorney General Rob McKenna told KIRO Radio’s Dave Ross.

At the festival, a man, referred to simply as Bartlett, was asked by a state trooper to move a keg of beer indoors. Bartlett refused to talk to the trooper when prompted.

Shortly after that, another trooper went to speak to a teenager consuming alcohol. Bartlett, who was nearby, told the troopers to leave the teenager alone, and was summarily arrested for his efforts. According to Bartlett, the troopers told him something to the effect of “I bet you wish you’d talked to us now.”

“That raises the question: Can Bartlett sue for retaliatory arrest, even if the troopers were able to show they had a probable cause to make the arrest?” asked McKenna.

The 9th Circuit Court of Appeals ruled that even with probable cause, someone is still able to claim an arrest was retaliatory. There was also a recording of the incident where the troopers weren’t observed to have said anything along the lines of what Bartlett alleged.

That all aside, is talking back a police officer actually protected under free speech?

“There’s no question about that,” said McKenna.

“Not that I’m suggesting it’s a good idea — it’s not,” added Ross.

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