The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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. Conn. 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).