Free Speech

"Racial Ridicule" Is a Crime in Connecticut—and People Are Being Prosecuted

There is no First Amendment exception for "hate speech," and the government can't specially target racist or religiously bigoted speech -- but some Connecticut prosecutors seem not to know that.

|The Volokh Conspiracy |

A lot happens in trial courts, experienced lawyers know, that doesn't quite match the law on the books. Here's an example.

[1.] Connecticut General Statutes § 53-37 (which, oddly enough, is listed in some Connecticut government documents under the "affirmative action" category, as in this Affirmative Action Policy Statement and this Affirmative Action—Laws List) provides:

Any person who, by his advertisement, ridicules or holds up to contempt any person or class of persons, on account of the creed, religion, color, denomination, nationality or race of such person or class of persons, shall be fined not more than fifty dollars or imprisoned not more than thirty days or both.

And, as best we can tell, prosecutors have averaged a bit over one conviction per year under the statute from 2000 to 2016, and in 2017 they had four prosecutions—two that were dropped, and two that were still pending as of the end of 2017. (Because records of prosecutions that don't lead to convictions are purged fairly promptly, I can't get information on unsuccessful prosecutions in past years.)

[2.] The statute, though, is pretty obviously unconstitutional, because it suppresses speech based on its content (and viewpoint), and because there's no First Amendment exception for speech that insults based on race or religion. Beauharnais v. Illinois (1952) did uphold a "group libel" statute that banned derogatory statements about racial and religious groups, but that decision is widely and rightly regarded as obsolete, given the last 50 years of First Amendment jurisprudence. The only part of Beauharnais that likely survives is its general conclusion that there is a libel exception to the First Amendment; since then, that exception has been dramatically narrowed. As the Court has repeatedly held, racist and religiously bigoted speech is as constitutionally protected as speech that expresses other ideas.

But it turns out that Connecticut prosecutors aren't enforcing the law as it is written. I have found no prosecutions for advertisements that ridicule people based on race or religion—not for commercial advertisements (which in any event would be pretty bad for business these days) and not for political advertisements.

Rather, based on the 13 police reports that I've read, prosecutors seem to be enforcing the statute to punish people for race- or religion-based "fighting words": generally speaking, face-to-face personal insults that include racial or religious slurs. (The facts of the cases are a mix: Three involved racial insults of police officers, one case with anti-white insults and another with anti-black insults. The other ten mostly involved insults of black ordinary citizens, though one was of a Hispanic, one of someone perceived to be Muslim, and one of an ambiguously labeled "nigga cracker." The defendants were mostly whites, but two were likely Hispanic and one was black.)

Now that might be less troubling than trying to punish, say, political advertisements. But is itself unconstitutional, for three related reasons.

[A.] First, such insults may be offensive and empty of serious arguments, but they aren't advertisements, under any definition of the word "advertisement." The convicted defendants are not guilty of the crime they were charged with, given the plain text of the statute. And there are no appellate decisions reinterpreting the text of the statute (as there are for some statutes), so the defendants weren't guilty under either the law as written or the law as authoritatively construed. Indeed, the one nonprecedential decision I could find, National Socialist White People's Party v. Southern New England Telephone Co. (D. Mass. 1975) (3-judge court), and the one decision cited in that case, State v. Jensen (Conn. Cir. Ct. 1969), read the statute—consistently with its text—as genuinely limited to "advertisements."

Yet a 2008 report from the Connecticut legislature's Office of Legislative Research and a 2014 East Haven Police Department manual describe the statute simply as covering "ridicul[ing] any person or class of people on account of creed, religion, color, denomination, nationality, or race," likewise dropping the "advertisement" requirement. The prosecutors in the cases cited above for which I've seen arrest reports (more than half of the list) likewise seem to be ignoring that requirement.

[B.] Even if prosecutors are reading the state as only banning race- or religion-based fighting words—contrary to its text—there's no reason to think that all the judges are reading it that way, or will read it that way. Some guilty verdicts might thus easily be entered without the judges finding beyond a reasonable doubt that the speech constituted fighting words.

[C.] But even if the statute were somehow read as banning race- or religion-based fighting words—contrary to its text—there's a Supreme Court decision squarely holding such statutes unconstitutional: R.A.V. v. City of St. Paul (1992). R.A.V. struck down a ban on those fighting words that "arouse[] anger, alarm or resentment in others" based on, among other things, race or religion; this statute seems to be read as a ban on those fighting words that "ridicule[] or hold[] up to contempt any person or class of persons" based on, race, religion, or nationality. The words of R.A.V. apply just as well to this statute: Even assuming that "all of the expression reached by the [statute] is proscribable under the 'fighting words' doctrine," the statute "is facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses."

The 1999 "Hate Speech on the Internet" report from the Office of Legislative Research has noted that the statute's "constitutionality is questionable under the U.S. Supreme Court's rulings." But a 2008 report written by the same lawyer doesn't include that note.

[3.] One might ask: Why aren't defense lawyers objecting to this, or appealing the cases? (I could find no appellate decisions that mention the statute.)

I suspect some defense lawyers are objecting, and some (perhaps many) prosecutors aren't bringing charges because they realize the statute is unconstitutional. Other defense lawyers might agree to charges under the statute as part of a plea bargain that they think is better for their clients, if in the absence of these charges the clients might have faced more serious ones (or more serious sentences on other accompanying charges). Still others might not recognize the First Amendment problems. I've tried digging a bit, and ran into lawyers' normal tendency to keep quiet.

Of course, if any of you have a better perspective on what's going on with this statute in Connecticut courts, I'd love to hear it.

UPDATE: A few historical points, based on a couple of comments from readers. First, the statute was enacted in 1917, and the act that passed it was titled "An Act concerning Discrimination at Places of Public Accommodation." It really was aimed at "advertisement[s]" for businesses, not at (say) KKK rallies or the like.

Second, the reference to "creed" seems to refer to religion, perhaps to make clear (together with "denomination") that all religious discrimination was covered (e.g., so people can't say "I'm not contemptuous of Catholics, but only of people who believe in adherence to the Pope"), or perhaps because of the lawyer's habit of using multiple synonyms for the same thing (which might itself stem from a desire to avoid any inadvertent gaps in coverage).

Certainly the cases from the early and mid-1900s confirm that, and modern cases also take the same view: "The word 'creed' has a definite meaning, as a formal declaration of religious belief." Hammer v. State (Ind. 1909). "In my opinion the [New York] Legislature in [a law banning housing discrimination] used the words 'creed' and 'religion' interchangeably. I cannot subscribe to the argument of the petitioners that the word 'creed' may refer to any beliefs, be they economic, political or sociological. Viewed in the light of the history of the statute, the evils it intended to cure, and its constitutional forerunner, I hold that 'creed' means religious belief." Cummings v. Weinfeld (N.Y. trial ct. 1941). "The rubric 'race, color, creed or religion' … has attained too fixed a meaning to permit political groups to be brought within it." Beauharnais v. Illinois (1952) (which I think is good evidence of the legal meaning of the term at the time, even though its constitutional analysis is not consistent with more recent precedents).

NEXT: Duke Historian Nancy Maclean's Wacky Conspiracy Theory

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  1. In response to the question you pose at #3, I think it’s probably because 1) most people charged with this probably don’t hire a lawyer, and 2) with or without a lawyer, the defendants want to avoid notoriety. Nobody wants to be known publicly as “that guy who won his case because calling someone a ‘nigga cracker’ is totally legal.” Am I correct to assume that the convictions you found were all plea deals? I suspect no one thinks it’s worth taking this to trial, even if they’re convinced of their innocence under the law.

    1. In the records that I’ve seen, all except one of the defendants had a lawyer, likely a court-appointed one (though they were indeed plea bargains, as most criminal convictions of all sorts are). I also suspect, though, that most minor misdemeanor trials of this sort aren’t going to create enough publicity to produce notoriety.

      1. Wouldn’t it come up in background checks by future employers?

        1. Sure, but that would be just as true for the conviction following a guilty plea. Pleading guilty to a racial ridicule charge to avoid the publicity of a trial might make sense, though, as I said, I doubt that such a misdemeanor trial would get much publicity. But pleading guilty to the charge to avoid its appearing in a background check wouldn’t work.

          (Pleading guilty to a lesser charge to avoid a conviction on a racial ridicule charge is a different matter, but the 23 convictions I write about were to the racial ridicule charge, not to a lesser offense.)

          1. sensible enough

            1. There is actually another response to Question 3: contrary to Eugene’s suggestion, ridiculing a respected member of the community is by no means protected by the so-called “free-speech” principle supposedly enshrined in our great nation’s “First Amendment,” any more than an inappropriately deadpan “parody” is protected when it damages, however truthfully, the reputation of a New York University department chairman who appears in many television programs about Bible topics and also serves as the distinguished envoy of our nation’s orthodox Jewish congregations to the Vatican.

              Under the principles set forth by the Second Circuit in our nation’s leading criminal “satire” case, whether or not an act of ridicule should be prosecuted depends on the whether it is sufficiently “puerile” to escape criminalization, whether it conveys an acceptable “idea,” or whether it crosses the line determined by our nation’s criminal courts and damages a reputation, as ridicule so often does. Furthermore, the burden lies on the defense to prove beyond a reasonable doubt that the intent of the ridicule was sufficiently reverential to avoid criminalization, just as the burden falls on the defense to demonstrate beyond a reasonable doubt that an inappropriately deadpan parody was intended to convey an “idea” rather than damage a reputation. See the documentation at:

              https://raphaelgolbtrial.wordpress.com/

              1. Won’t you ever get bored of this spam?

                1. I must take issue with labeling “spam” any comment that signals cutting-edge criminal-court advances in limiting the scope of the “First Amendment” when ridicule, Trolling, catcalling, and other similarly prurient manifestations of certain elements of our society are involved. Even the ACLU is on our side (mine, and of course often Eugene’s) in such matters. The Second Circuit’s decision in our nation’s leading criminal “satire” case is highly relevant to the issue Eugene broaches in this item, because it sets out a path for analysis in any situation involving speech that we really don’t like, including hate speech and inappropriate ridicule of any sort. This is why socially harmful “opinion pieces” of this sort

                  https://forward.com/opinion/385050/

                  which fail to respect the difference between speech that is “puerile” and speech that damages a reputation, should be firmly combated by all of us. Surely by stretching our laws a bit we can cleanse the web of such pieces, to preserve the integrity of the social bond for which Eugene has been such an eloquent spokesman?

                2. Won’t you ever get bored of this spam?

                  I mean, the chosen username pretty much says, “No,” doesn’t it?

      2. I regularly represent court-appointed clients in misdemeanor cases. My guess is that many of the defendants plead guilty to get the case over with if they are not facing jail time. I could see myself explaining to a client that i believed the statute was unconstitutional. Raising that defense might mean that the case goes to the back of the line and would not get ruled on until the end of the docket. Getting out of court at 11 a.m. versus having to stay until 4 p.m. means a lot to many people. Even if we raise the defense, there is no certainty that the trial judge would rule in our favor. The observation at the top of the post that what happens in trial courts does not always match the law on the books is spot on. If the trial judge rules in a way that is completely wrong on the law (it happens often), the burden is on the defense to appeal, which probably means another trip to court.

        1. brygates: All excellent points, but I should note that most of the convictions led to at least a suspended jail sentence, and some had an actual jail sentence that had to be served.

          1. Many defendants unwisely discount future consequences (like suspended sentences and a criminal record) to nearly zero when deciding what to do.

  2. Wouldn’t be the only unconstitutional law preserved by only charging people who you know will plead guilty.

    1. It’s not unconstitutional, unless the Connecticut constitution forbids it. The first amendment to the U.S. Constitution is a restriction on the U.S. Congress, not the Connecticut legislature. The doctrine of incorporation is a legal scam.

      1. It’s cute that you think that.

      2. While you might feel that way, the judges on the Connecticut Supreme Court definitely do not, and a good competent would want to take that into account.

        That’s aside from the fact that the Connecticut Constitution does expressly protect the right to free speech.

      3. Absolutely! See J. Aldridge on John Bingham!

  3. Professor Volokh,

    Are not aware that there is no right to a lawyer for a misdemeanor charge, that relatively few Americans can afford their own, and hence many if not most people accused of a misdemeanor work their way through the proceedings, overwhelmingly pleading guilty, without one?

    There are numerous areas of the law where legal reasoning simply doesn’t shine its light because the stakes haven’t been high enough, and more to the point the potential clients unable to afford enough, to make it worth a lawyer investing research time.

    I suspect you’ll find that in most of not all of the cases where the charges stuck, there was no lawyer at all.

    This is doubtless one.

    1. Pretty much. Only way you’re going to get this law struck down, realistically, is to deliberately construct a test case, and then you’ll likely run into the prosecution being dropped the moment they realize the defendant has representation.

    2. 1. Indigent defendants have a Sixth Amendment right to a court-appointed lawyer for any charge, misdemeanor or felony, that leads to a sentence of any jail time (even to a suspended jail sentence). See Argersinger v. Hamlin (1972); Alabama v. Shelton (2002). Of the 23 convictions, 13 led to such sentences.

      2. I did a quick check of the online records for the remaining 10;; about half weren’t online (perhaps because they were too old), but the remainder were, and I found only one defendant who was listed as not having a lawyer.

      1. Yes, but actually, Eugene, in America, court-appointed lawyers are not known for their competency (and it’s a good thing, because otherwise it would be more difficult for prosecutors to do what needs to be done to strengthen some of the restrictions that need to be strengthened). It is also worth nothing that in general, defense lawyers value discretion, because they need to plead cases in front of the same judges again. When the “speech” involved is actually a form of insidious behavior that nobody likes, it’s far better not to raise a fuss about it, and to concede that our law has taken a new direction?indeed thanks to the efforts of our great Second-Circuit judges, who have shown so much skill in distinguishing mere puerile speech-content and “ideas” from criminally infused language.

        1. P.s. just think how serious it could be if one of these lawyers, in a future similar case before the same court, has to convince the judge that a given act of ridicule was too “puerile” to criminalize, in line with the Second Circuit’s reasoning in America’s leading criminal-deadpan “ridicule” case. He had better well be on very good terms with that judge, rather than disrupting the process and creating headaches by invoking old Supreme Court decisions that don’t deal with the exact same situation.

          1. P.p.s. and I meant of course to say “worth noting,” not “worth nothing.”

  4. The plea bargain possibility may have something to do with it. I knew a guy who was arrested for making a specific drug. His lawyer cut him a deal to plead guilty to possession of a completely different drug (with lesser scheduling). Everybody knew the guilty plea had no factual basis – the cops hadn’t found that drug, hadn’t accused him of that drug, and he hadn’t actually had that drug. But the prosecutor agreed to charge him with that drug and he agreed to plead guilty to it. So,plea bargaining: plead guilty to something, whther the facts fit or not.

    1. Nothing like a judicial system built on wholesale perjury and lawyer misconduct.

      1. Would the alternative have benefited the other guy?

        1. What “other guy”?
          Either the act charged is prohibited by the statute, or it isn’t.
          There is a reason that the defendant is sworn prior to entering a guilty plea.
          Now, I am aware of the old lawyers’ practice of pleading guilty to “littering”, when the parties all just want a case to go away.
          But if a statute is so out of whack that a defendant has to perjure himself, then something is wrong.

          1. The “I knew a guy…” is the other guy.

            “But if a statute is so out of whack that a defendant has to perjure himself, then something is wrong.”

            What makes you think the statute was out of wack? There’s nothing in Porcyon’s comment that suggests problems with the statute. The guy just wanted a plea bargain (I assume for a lesser offense, i.e. “lesser scheduling” likely refers to sentencing) and the state was willing to give it to him.

            1. “Lesser scheduling” referring to a higher schedule number on the Controlled Substances Act and state analogues, indicating less severe sentencing based on generally less severe drugs (oversimplified).

              Valium is Schedule IV. Hydrocodone used to be Schedule III but is Schedule II now. Heroin is Schedule I.

      2. Yeah. Damn good work by his defense lawyer, though. He got arrested for making something like on Schedule I like GHB or MDMA, but plead guilty to possession of a small quantity of something on Schedule IV like Klonopin.

        1. And shabby work by the prosecutor–either for over-charging, or for pussing out rather than go to trial.

          1. The latter, I think. The guy was telling me this after the fact, along with an assurance of “I was just going to use it myself, I wasn’t planning on selling it”about the Schedule I drugs he really was trying to make at home.

      3. Yup. Innocent people will plead to avoid the risk of a trial and jail time.

  5. Also, where I’m from, a “nigga cracker” is more commonly referred to as a “wigger”.

  6. I seem to recall there is a small KKK presence in CT (go figure!) which might explain why they wanted to pass this law.

    It’s definitely unconstitutional and should be overturned, but I think that explains why it was put on the books–and from the examples above–has been used against people who disparaged blacks and minorities.

    1. The law was enacted in 1917, under the heading “An Act concerning Discrimination at Places of Public Accommodation”; I doubt that it was targeted at the KKK (though I understand it was quite active then, perhaps in Connecticut as well as elsewhere).

      As to its enforcement today, none of the police reports that I’ve read suggest any sort of organized Klan-like activity.

  7. Just out of curiosity – what does “creed” cover in a statute like this? While “creed” may be “especially” related to religion I don’t think it has to be.

    From WikiDif (which 5 minutes ago I didn’t even know existed):

    “As nouns the difference between creed and religion is that creed is that which is believed; accepted doctrine, especially religious; a particular set of beliefs; any summary of principles or opinions professed or adhered to while religion is the belief in and worship of a supernatural controlling power, especially a personal god or gods.”

    In today’s environment, a LOT of people don’t like other people’s “creed” under this definition.

    1. If Eugene’s intution is right and it’s not an anti-KKK law (an intuition with which I disagree, and which would fit the “creed” hypo), then maybe the object was Communism, anarchism, or, syndicalism–all of which were “creeds”, or “belief systems that were in bad odor among many during WW!.

      1. 1. That the law was targeted at advertisements in places of public accommodation isn’t an intuition — it’s clear from the text of the statute and from its title when it was enacted. Now perhaps somehow the KKK was linked in with discriminatory advertisements, though that wasn’t what the KKK of that era is remembered for. But in any event, I doubt that a ban on such ads is much of “an anti-KKK law.”

        2. It seems unlikely to me that in 1917, the Connecticut Legislature was so worried about ads that express contempt for Communists, anarchists, and syndicalists that it would have protected those folks from such contempt and ridicule by making the ads a crime.

        3. The legal meaning of the term “creed,” then as now, was practically synonymous with religion (and “denomination”), much as “color” was practically synonymous with race, though both might have been included just to make sure that all religious and racial hostility is covered (e.g., in case someone says “I’m not expressing hostility to all Christians, but only to those who believe in transsubstantiation”). I’ve added an update to make that clear.

        1. Likely enacted for “No Irish Need Apply” and similar outrages.

          1. Maybe they didn’t like Aunt Jemima pancakes or Uncle Ben’s rice.

  8. Connecticut has not been a strong supporter of free speech, in my opinion. Remember it was a CT case that the US Supreme Court used to allow contraception. The state flagship university, UCONN, used to have a student conduct code that prohibited “inappropriate laughter”. ( A Federal Judge laughed it out as “unconstitutional”.) The state elections commission tried to sue a nun for handing out leaflets opposing abortion. Seemed the leaflets didn’t have the proper approved verbiage and may have also been anonymous. (Thomas Paine would spin in his grave. Anonymous pamphlets illegal?) Even now there is an election law case where the state is alleging that a violation occurred when a candidate referenced an opposition member in campaign literature. And there have been other issues also.

  9. 12 more offensive advertisements you shouldn’t mimic

    But some are merely sexist, so apparently aren’t covered by the law.

  10. I would suspect that the 1917 law related to an extreme degree of friction between German-American Bunds that were highly interested In the USA maintaining its fragile neutrality (which would collapse in April when President Wilson and his Sec. of State William Jennings Bryan finally succumbed to war fever.)

    Prior to that in 1916 the German submarine Deutschland explicitly built for blockade running had appeared in New Jersey and demanded to be allowed to trade 750 tons of cargo. It was allowed, and it was very profitable for the Germans. This did, however, stimulate a great deal of paranoia among pro-British partisans in coastal states about Germans infiltrating from subs to make contact with pro-German Americans. It is possible anybody with a German accent may have been denied hotel accommodations during this period.

    On the second cross Atlantic voyage the Deutschland was rammed by a tugboat in a New York harbor. All five on the tug died. The sub was damaged and the trade discontinued due to America declaring war on Germany.

    1. first line * between Bunds and pro-Ally local Americans

    2. his did, however, stimulate a great deal of paranoia among pro-British partisans in coastal states about Germans infiltrating from subs to make contact with pro-German Americans.

      That paranoia wasn’t entirely unreasonable…

  11. I found that Connecticut also passed a law in 1925 censoring anti-black movies.

  12. Incidentally, did you find an advertising angle in any of these cases? (“Any person who, by his advertisement,” etc.)

    1. Apparently not, just read the post, thank you.

      1. So…it’s as if they all pled guilty so stuff of which they were factually innocent, and that’s even before we get to the First Amendment issue.

        This truly inspires confidence in the plea-bargain system.

  13. I guess that new reporter for the New York Times Sarah Jeong ought to steer clear of CT.

  14. Ignorance is Knowledge!

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