Free Speech

Unconstitutional "Racial Ridicule" Prosecution in Connecticut

I have an op-ed about this today in the N.Y. Daily News.

|The Volokh Conspiracy |

Here's an excerpt, though you can read the whole thing here:

Two University of Connecticut students are being prosecuted for "ridicule on account of creed, religion, color, denomination, nationality or race," according to the Washington Post. If convicted, they could be sentenced to up to 30 days in jail. Except what they were doing — apparently saying the n-word loudly to each other, "getting louder with each iteration and laughing as they walk by student housing" — doesn't actually violate state law. And even if state law did cover racial insults, it would be unconstitutional under a 1992 Supreme Court decision.

First, consider the text of the racial ridicule law: "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 guilty of a class D misdemeanor." The law is limited to "advertisements," so it doesn't cover personal conversations or even shouts, whether or not they are racist or religiously bigoted.

(As you might gather, my draft didn't say "the n-word," but when you publish in a newspaper, you're subject to their editorial judgments.)

UPDATE: For more details, see my 2018 post about the statute.

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  1. “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 guilty of a class D misdemeanor.”

    This must be an old law – it doesn’t mention sex, much less sexual orientation or identity.

    Anyway, would the law apply to an advertisement like this:

    https://www.youtube.com/watch?v=NrUh1Jjpj4U

    1. I wonder if, when that commercial first came out, anyone complained of the animal cruelty of turning a turtle upside down and stranding a fish so that they could film a fake rescue, probably through multiple takes.

      1. I know that people complained about the Faith No More video with a flopping fish, so I would imagine at least some outrage.

    2. Seems like a law quite a few professors in the humanities dept at UConn should be charged.

  2. Professor, I noticed this in your article:

    “I researched this statute in 2017, and found that Connecticut prosecutors have indeed tended to use this statute to prosecute racial and religious fighting words, with about one prosecution per year. Those prosecutions, though, have not led to appeals; defendants often don’t appeal low-level misdemeanor convictions.”

    Did any of these cases involve actual advertisements? If not, what an egregious abuse of power.

    1. Not a single one involved an actual advertisement.

      1. I didn’t watch it, but how is shouting stuff advertising?

        It sounds like the law is trying to use the “commercial speech” hook by using that term, but that’s a one-way gate into limited control in certain situations in that world, not a two-way the other direction.

        1. “how is shouting stuff advertising?”

          Ever hear of a “carnival barker”? Ever go to a baseball game? Is that guy shouting “get your ice-cold beer here!” engaging in commercial activity, and promoting it via his speech?

          So, shouting CAN be advertising.

          1. Are you suggesting these folks were selling niggers?

            1. “Are you suggesting these folks were selling niggers?”

              No, which is why nothing like that appears in anything I wrote. Trying confining yourself to what I actually wrote.

              1. You missed the sarcasm. It was literally* dripping off my screen.

                *in modern parlance, literally != literally, but literally = figuratively

  3. I was surprised by the statement in the op-ed that “universities can’t even impose viewpoint-discriminatory campus speech codes, though such codes are enforced only through administrative discipline.” While that might be correct for public universities, I do not think that would be the case for a private university.

    1. OyVey!: Fair enough — I meant to refer to public universities such as UConn, but on reflection you’re right that I should have said that expressly.

      1. Just fixed it in the electronic version, and it will be reflected in the print version (which I think is scheduled for Thursday).

  4. IANAL and I don’t know the legal meaning of “advertisement”, but I have always understood “advertise” as having meaning independent of the commercial world. “He advertised his wealth by driving a Ferrari” and so on. Archaic maybe, but still recognizable today.

    1. I followed a few links and was directed to this:

      https://bit.ly/2N7A307

      It’s the statute as originally enacted in 1917, under the title “An Act Concerning Discrimination at Places of Public Accommodation.” A marginal note summarizes the law as “Penalty for making discrimination in advertisements in places of public accommodation.”

      (I guess the penalty provisions were later modified to “Class D Misdemeanor,” but the rest of the law seems like it was when enacted)

      1. I guess you could say that these two chaps were advertising to anyone within earshot, “Hey, we’re a couple of racist douche-bags.”

        1. If there were a generic anti-douchiness statute, then I guess these guys could be prosecuted, but so could the prosecutor who pretended their behavior was, in the legal sense, an advertisement.

          1. Eddy,
            I hope it was clear that I was speaking with my tongue firmly in my cheek. 🙂

            1. That’s OK, I get it. 🙂

              Let’s see how many other emojis I can do:

              :)-

        2. I guess you could say that these two chaps were advertising to anyone within earshot, “Hey, we’re a couple of racist douche-bags.”

          I don’t that’s even true. They weren’t being racist, they were being transgressive. And that’s probably a good thing.

      2. Check column 4, near the bottom, for an article on the bill in its original form – “WOULD ABOLISH DISCRIMINATION NOTICE CUSTOM – Bartlett Introduces Bill to Ban ‘No _____ Wanted’ Literature.” (blank space in original)

        https://bit.ly/2qzYFa5

        The state Senate Journal indicates that the Judiciary Committee replaced Bartlett’s bill with a different version, but the final version still indicated in the title and marginal notation that it was an antidiscrimination bill, as we have seen.

      3. I see that the Professor already noted the title of the statute in his 2018 post.

  5. I thought this statute (which goes back at least to 1949) had become a dead letter after an early 1980s attempt to apply it to a an unpleasant African-American street preacher who somehow acquired an old bus, festooned it with anti-Semitic rhetoric, and regularly parked it outside synagogues during their most heavily attended services and events. As I recall, the prosecution was quickly abandoned. I’m surprised this provision wasn’t repealed when CT established general hate crimes statutes at the turn of the millennium, but our General Assembly, in its very measured wisdom, has often been averse to repealing statutes merely because they don’t pass constitutional muster.

    1. our General Assembly, in its very measured wisdom

      Nicely played, sir/madam.

  6. So as applied to advertisements such a rule—assuming it wasn’t vague—would be permissible, even if it singled out a viewpoint (an advertisement that had kike or some other epithet in it)

  7. Assuming these guys were loud enough for long enough, could they be prosecuted under a content neutral disturbing the peace or excessive noise law?

    1. Potentially. It would need to be pretty severe noise though…

  8. Bigots have rights, too.

    Including the right to be replaced by better Americans as America continues to improve against right-wing preferences.

    So carry on, clingers . . . while you still can.

    1. You realize that every living creature on earth today will eventually die, perhaps to be replaced by someone or something else?

    2. You realize you sound like a massive bigot yourself when you say that?

      Nevermind….

    3. “Including the right to be replaced by better Americans…”

      Who’s a better American, somebody who says nigger or somebody who wants to put people in jail for saying nigger?

      1. None of the above.

      2. Rev. Kirkland doesn’t seem to realize that he and his ilk – educated, relatively wealthy, progressive, and tolerant whites – are the ones who are being replaced by less educated, poorer, and far more intolerant groups.

        Replacement birthrates are really only a problem among the upper class.

        1. Like most totalitarians, he expects to be in the ruling elite, to whom the repressive laws don’t apply.

    4. We’re eagerly awaiting your replacement, Kirkland.

      1. As for me, I’m waiting for him to be visited by three spirits and have an epiphany like Scrooge, and buy all the deplorables a turkey dinner.

        1. I am occasionally visited by spirits, although I generally prefer beer.

          I purchase plenty of dinners for people with deplorable views, indirectly, by paying taxes that tend to subsidize people with deplorable views.

          If you are waiting for me to switch to preferring clinger positions, I dislike your prospects.

  9. Somehow I’m guessing that law is very “selectively” enforced against just certain people.

    1. That’s what Democrats do… selectively wield the power of government against their political or social opponents.

          1. Liberals are nazis.

      1. “That’s what Democrats do… selectively wield the power of government against their political or social opponents.”

        Yes, it is. It’s also what Republicans do, and even non-partisans. In other news, water is wet. Film at 11.

        1. Pennsylvania Republicans today resumed commencing House of Representative sessions with a prayer — and permitting solely a person who is superstitious, while excluding anyone who does not claim to believe in certain flavors of religion, to offer that prayer. Non-superstitious Pennsylvanians are excluded by Pennsylvania Republicans in this context.

          Carry on, clingers. For just a bit longer, that is.

        2. Seems to me we’ve stumbled across a good reason why we shouldn’t grant the people in government so much power.

    2. Maybe rail against real things rather than speculate your way into railing about made-up potential things.

      1. Maybe rail against real things rather than speculate your way into railing about made-up potential things.

        That’s rich coming from the undisputed king of making shit up to argue against.

  10. “The law is limited to ‘advertisements,’ so it doesn’t cover personal conversations or even shouts, whether or not they are racist or religiously bigoted.”

    Advertisements can be shouted.

    Seems a stretch to apply it to deliberate provocation, but then again, that’s why there are juries.

    1. You shouldn’t need to defend yourself from a blatently unconstitutional statute. The police or prosecutor should lose all immunity for even attempting to enforce something so facially unconstitutional.

      Imagine a statute that outlawed “ridicule on account of running for or occupying public office”, and someone prosecuted for ridiculing Trump. I doubt you would say ” that’s why we have juries. The mere idea of having to answer a charge like that is outrageous.

      1. “You shouldn’t need to defend yourself from a blatently unconstitutional statute.”

        You’re assuming something that hasn’t happened yet.

        “Imagine a statute that outlawed ‘ridicule on account of running for or occupying public office'”

        Do you mean the Alien and Sedition Acts? You know, the ones written right about the same time as the 1st amendment was added to the Constitution, by a lot of the same fellows?

        1. Uhh, it has happened.

        2. “You’re assuming something that hasn’t happened yet.”

          Tenses in English are kinda tricky.

        3. “A lot” apparently means “a few.” There were ~90 people who participating in writing the 1A. There were just nine people who voted for the Sedition Act and probably for the 1A. Even assuming each of those nine people helped to write it (10% isn’t “a lot”

          And “right about the same time as” must mean “seven years after”.

          1. “And ‘right about the same time as’ must mean ‘seven years after’.”

            On a 250-year time scale, 7 years apart is almost simultaneous.

        4. You’re assuming something that hasn’t happened yet.

          I guess making it all the way to the 2nd sentence of the story (the 1st sentence of the excerpt) was just too taxing on your literacy skills:

          “Two University of Connecticut students are being prosecuted for”

  11. The authorities know full well that this statute is unconstitutional. It’s another “the process is the punishment” arrest. Hopefully, the eventual court that hears the false arrest claim denies qualified immunity.

    1. The process is the punishment; “you may beat the rap but you cannot beat the ride.” End QI.

      1. In this case, the law is so clearly established that I have a hard time believing that even our corrupt judiciary would find QI here.

        1. To be slightly argumentative, if there really has been ” about one prosecution per year,” then is the unconstitutionality really established?

  12. From another news story about it:

    “A third person had accompanied them as they walked outside of the apartments, but the police investigation determined that individual had not participated in the behavior.”

    Note yet another example describing speech as “behavior” in an attempt to get around the First Amendment.

  13. 1. Have any professors at U of Conn Law commented objected to their university’s illegal action?

    2. Since this is a misdemeanor, the process is the punishment. Could the victims recover damages and attorney fees as a civil rights violation?

  14. As other have already said, the process is the punishment. These individuals have already been arrested, their names plastered across campus, and are being run through a campus kangaroo court.

    Not because they threatened someone, or caused damage to someone’s person or property. But because they said a bad word in the context of a game that requires saying offensive things because they’re offensive.

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