Free Speech

Connecticut Racial Ridicule Prosecution: One Student Agrees to Probation, the Other's Case Is Still Pending

This is the case in which two students were walking near UConn student housing, loudly shouting "nigger" (apparently after having decided that loudly shouting "penis" wasn't good enough).

|The Volokh Conspiracy |

According to the Hartford Courant (David Owens),

One of two UConn students charged with yelling racial slurs [in particular, "nigger" -EV] outside a university apartment complex was granted a special form of probation Tuesday that could result in the charge against him being dismissed.

Jarred Karal, 21, of Plainville, will be on probation for six months and must complete 20 hours of community service and undergo diversity and bias training. Rockville Superior Court Judge James Sicilian approved Karal's application for accelerated rehabilitation, finding that his offense was not of a serious nature and that it was unlikely Karal would offend again.

As I argued in this New York Daily News article, the statute is unconstitutional, and on its face not even applicable to the speech here; but I can understand why a defendant might prefer to make the case go away quickly rather than fighting. The other student, though, seems not to have made any such deal; I hope to know more soon about whether he'll be challenging the constitutionality of the prosecution.

Here, in the meantime, is a quick summary of the problems with the statute:

[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. Indeed, this very case involves speech that is unlikely to be viewed as "fighting words," since that narrow First Amendment exception is limited to "personally abusive epithets" that are "directed to the person of the hearer"; these words weren't directed to any particular person.

[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 hadn't defense lawyers objected to this earlier, or appealed 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.

[4.] A few historical points. 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: An NYPD Cop Was Sentenced to a Day in Jail for a Lie That Nearly Doomed a Man to 15 Years in Prison

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  1. The statute seems to require an advertisement as an element, but if there’s any doubt about that, surely Connecticut has adopted the rule of lenity.

  2. Please tell me these children were drunk when they did this. Yeah, I get they were 20/21, but seriously, they had undeveloped young adult brains. And evidently very poor rearing.

    My personal opinion is a much better sentence would be to require them to yell those slurs while walking in the Bronx. I believe they would disabuse themselves of the notion this kind of thing was funny rather quickly. Street justice has a way of….clarifying things.

    1. Really? Death [or serious bodily harm] as a penalty for a silly prank.

      I think you had very poor rearing.

      1. People who advocate violence as a punishment for speech are retarded.

      2. Bob, I’m not sure this is consistent with your general advocacy for very harsh penalties for expression-related property damage, or who block a road.

        1. I am sorry you can’t tell the difference between speech and property damage.

          1. I’m sorry your mercifulness is so localized.

        2. “Bob, I’m not sure this is consistent with your general advocacy for very harsh penalties for expression-related property damage, or who block a road.”

          I guess Bob, being a clinger and all, just isn’t smart enough to understand that advocating for penalties for property damage and blocking roads is inconsistent with opposing penalties for people who express themselves without doing those things.

      3. Hey Bob from Ohio…Let’s be clear. If they were drunk or intoxicated with some drug, I think they get a pass. They were not in their right mind.

        OTOH, if they wish to publicly proclaim their beliefs, and they are perfectly sound of mind and body, the least they could do is own the consequences of their words. You seem to think it is ‘consequence free’ to utter whatever orts or droppings enter your mind and come out of your mouth. Let me disabuse you of that notion, right now. Inside a courtroom, or outside it; you will own your words.

        Frankly, I would have much rather these two young men have been administered ‘street justice’ without being involved in the criminal justice system at all. This will now come up in an internet search under their names for all time. What a wonderful thing. /sarc

        1. It used to be that it was OK to administer “street justice” to certain people, such as racists, commies, flag burners, gays, and trans people if certain things happened before disclosure. I haven’t checked to see if the list has changed.

  3. Bigots have rights, too.

    (And, strikingly often, a spirited legal defense from conservatives.)

    1. I see you speak from experience….Reverend.

      1. The experience of reading a movement conservative blog with a thin legal veneer.

  4. If some organization wanted to challenge the law, you wouldn’t think it would be hard to put a test case together. Find someone who wants to play the n-word penis game as a form of protest, and sue for a declaratory judgement.

    1. Shockingly, there don’t see to b throngs of people lining up to go down in history as “the guy who really, really, really wanted to yell ‘nigger'”.

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