Free Speech

Connecticut Commission Opposes Repeal of "Racial Ridicule" Law

"At a time when hate and bias incidents are on the rise, it is crucial that the state not remove these types of prohibitions that deter or punish this unacceptable behavior."

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The Connecticut "racial ridicule statute" (§ 53-37), first enacted in 1917, 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 guilty of a class D misdemeanor.

The statute is unconstitutional in three ways:

[1.] It restricts constitutionally protected speech based on its content and viewpoint—for instance, a political advertisement ridiculing or expressing contempt for Scientologists or conservative Christians or young-Earthers or jihadist Muslims or blacks or whites or any such group. There is no "hate speech" exception to the First Amendment, and there is no "ridiculing or contemptuous speech" exception.

[2.] The statute has in practice been applied to things that aren't "advertisement[s]" at all. 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 read in 2018, prosecutors seem to be mostly 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.) And of course most recently, in the University of Connecticut student case, two students have been prosecuted for shouting "nigger" while walking near dorms, but not addressing it to any particular student.

The law has thus been consistently used to prosecute (and convict) defendants that 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." (The 1917 act that enacted the statute was titled "An Act concerning Discrimination at Places of Public Accommodation," and really was aimed at "advertisement[s]" for businesses, not at (say) speech during KKK rallies or the like.)

[3.]  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 selective restrictions 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."

Fortunately, some Connecticut legislators (such as state senator John Kissel) are taking their constitutional duties seriously, and suggesting that the law be repealed; the ACLU of Connecticut agrees (see this Hartford Courant article (Amanda Blanco)). But not the Connecticut Commission on Human Rights and Opportunities, which writes (and this is the only analysis it gives):

At a time when hate and bias incidents are on the rise [citing data], it is crucial that the state not remove these types of prohibitions that deter or punish this unacceptable behavior.

The CHRO also describes the law as "mak[ing] the ridicule of a person or group on account of creed, religion, color, denomination, nationality, race or class a class D misdemeanor," so the CHRO doesn't view the law as limited to "fighting words," but rather as covering "ridicule" more generally. Then again, the CHRO doesn't even mention the limitation to "advertisement[s]," and invents a prohibition on ridicule based on "class."

State representative Craig Fishbein also "said while he might support a modification of the statute, he would not support a full repeal":

"Free speech is not absolute," he said. "You can't just say anything." …

Fishbein also shared concerns over the message repealing the law might send to the state.

"I don't think it's appropriate," he said. "To repeal the statute would be in favor of the action [it prohibits]. It's troubling. … This conduct should not be adopted. Why should anybody ridicule?"

I would think that the Connecticut Legislature could find a way of communicating the message that (1) it is repealing an unconstitutional law because it has a duty to support the Constitution, (2) not everything that can be said should be said, and (3) not everything that shouldn't be said should be criminal. Indeed, I would think that this message is a pretty fundamental American principle.

NEXT: Today in Supreme Court History: February 22, 2005

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  1. Bigots have rights, too.

    And an ardent, reliable defender of bigots’ rights.

    1. “And an ardent, reliable defender of bigots’ rights.”

      When the ACLU defends, e.g., the free speech rights of neo-Nazis in Skokie, I like to think they are defending the free speech rights of everyone, not just the free speech rights of Nazis.

      1. The ACLU is a less selective defender of rights than are some other advocates (some of whom specialize in defending racists, misogynists, gay-bashers, etc.).

        1. “some of whom specialize in defending racists”

          And good on the ACLU for doing that: ACLU-EM Defends KKK’s Right to Free Speech

          1. The ACLU does not specialize in defending bigots. It defends bigots as part of a broad effort to vindicate speech rights.

            1. Gee, I dunno. For some reason I’ve never heard about the ACLU, or other free speech activists, defending the speech rights of Oprah Winfrey or Jay Leno or, really, anyone making speech that’s wildly popular. It’s almost like no one tries to suppress popular speech!

              As an aside, if there are poor downtrodden people somewhere who are in desperate need of of having their free speech rights protected, perhaps you should consider sacrificing some of your free time and take their cases yourself, instead of spending all day making blog comments? I mean, if they are really in great need, and if you actually have the ability to help them, it seems like the unselfish thing to do, even at the expense of your hobby time.

              1. I have handled a number of expression cases, customarily without charging a fee (although I have taken fees established by judgment against the government rather than paid by the client).

                Not all disfavored speakers are bigots. But many, if not most, of the disfavored speakers defended by some advocates are bigots.

                Carry on, clingers. Until you are replaced, that is. By your betters.

                1. “But many, if not most, of the disfavored speakers defended by some advocates are bigots.”

                  There you go, slamming the ACLU again!

        2. Used to be, they’re in the process of changing policies.

    2. Don’t you fucking forget that bigots have rights.

      Because if you take the rights away from bigots, you may be next.

      Whatever happened to defending the rights of views you don’t agree with to the death?

      Scratch a Kirkland, find a fascist.

      1. Everyone is a bigot in somebody’s eyes. Take away the most obvious bigots, and the next-most obvious bigots rise to the top.

        Like that old joke about the world’s mot boring person. As soon as someone is so designated, they become interesting, thus removing themselves from contention, and the second most boring person rises to the top.

      2. Because if you take the rights away from bigots, you may be next.

        If we took the rights away from bigots, Kirkland would be first.

      3. “Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience. They may be more likely to go to Heaven yet at the same time likelier to make a Hell of earth. This very kindness stings with intolerable insult. To be “cured” against one’s will and cured of states which we may not regard as disease is to be put on a level of those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals.”

        Thank god the Kirkland’s of this world have no real power, and he wonders why we vote for Trump.

      4. Defending bigots’ speech rights is good work. Issuing a partisan pass to other censors is less admirable and generates questions about motivation.

    3. the only difference between the bigoted KKK member and Artie is the color of their wardrobe and the target of their hatred.

    4. “Bigots have rights, too.”

      This law criminalized ridicule based on religion, Arthur. You regularly ridicule religious people in this very forum. But you are correct, bigots have rights.

    5. Yes, you have rights too.

      And we are ardent defenders of your rights.

    6. First they came for the bigots. And nobody spoke up, because nobody wanted to be called a bigot.

    7. Those effin’ card-carrying members of the ACLU, eh Rev?

  2. I’m scared to death that the university age generation has so little respect for free speech, or due process.

    1. anorlunda: I too worry about college students’ views on such matters (as I worry about others’ views as well). But the CHRO isn’t run by “university age generation” people, and Rep. Fishbein isn’t of that generation, either.

      1. There are have always been people who want to regulate free speech to ban “hate speech” or “indecent speech” or whatever… but they were usually outnumbered, and powerless to actually succeed in doing so.

        But now, with the generation coming out of these universities, it isn’t just the occasional Rep. Fishbein that gets elected to rant powerlessly in the back – it’s a whole horde of Fishbeins with enough electoral support to actually have sway. If this Connecticut law is upheld now, what will we see in 20 to 30 years?
        And it isn’t just the Left – if upheld, what do you think Kansas could do with the same rights to regulate “decent speech”?

  3. It is also the case (ignoring the advertising restriction) that not every kind of speech this law concerns itself with is even something which shouldn’t be said. For example, if I hold and spread a ridiculous harmful belief (no matter how fervently), it can sometimes be very good for someone else to point out that I am being ridiculous (and why).

  4. “Why should anybody ridicule?”

    Because people like you make such easy targets for ridicule, Fishbreath.

  5. The longer and more often a divided Supreme Court flip-flops on doctrinal issues, the harder it is to claim that its current rulings represent “the constitution,” and the easier it is for dissenters to counsel simply waiting until someone more favorable gets appointed.

    And this is so whether we agree with those rulings or not.

  6. If your only tool is a hammer…

  7. Would the world be a better place if people didn’t engage in “racial ridicule”? Probably. Is the Connecticut statute constitutional? No. But the members of the Human Rights Commission just don’t care…
    compare (from a 2015 news article):

    Appearing before nearly 400 people in Aspen on Feb. 5, [Michael Bloomberg] argued that in order to save lives, police should seize guns from male minorities between ages 15 and 25.

    Would Mr. Bloomberg’s proposal save lives? Undoubtedly. Is it constitutional? Not even close. Do you think he cares?

    1. Gun control has always been aimed more at minorities than anyone else. Just look at the jurisdictions with the most stringent gun control: Washington DC, Chicago, Baltimore, LA, Bay Area. NY, all metropolitan areas that dominate their states politics that have large minority populations. Other states with large cities with high crime rates that don’t dominate the states politics don’t end up with gun control.

      Liberal whites are scared shitless about blacks with guns.

      1. Nice telepathy.

        And pretty strong fallacy of correlation being causation.

        1. Well I did hear it directly from Mayor Bloomberg himself, so it’s not as if there isn’t any prominent liberal White politicians saying the exact samething.

          So I got two things, correlation, and a prominent Democrat big city mayor known for his racist application of the law admitting it.

          1. Well known liberal champion Bloomberg.

        2. Go in to the archives on this blog, the author posted here, and review the book Negroes And The Guns: The Black History of Arms.

          The short version of the last couple chapters, is that rather than deal with the wicked problems in the black community leading to gun violence (of which was only partially caused by racism) the black elite joined white liberal elite and pushed for gun control rather than deal with the underlying problems.

          1. I know the history. Doesn’t say alot about the parties today.

            1. Oh really? Then what’s different.

              1. What’s different in the parties since the 1970s?!

                The changing constituencies are reflected in the changing electoral map.

                Don’t be daft.

                1. The constituencies between the parties on this issue are the same as they were in the 1970s; blacks still vote overwhelming Democrat as do white liberals, and both are pro-gun control. The electoral map of urban gun controllers vs suburban and rural whites being against gun control remain the same as the 1970s.

                  So, let me ask again, what’s changed?

                  1. Your slicing of blacks, and the tautologically defined ‘liberal whites. is leaving out a great deal. Particularly about where the racists are.

                    As I’m sure you know.

  8. 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.

    This deserves a post on its own. It is bad enough that the law requires the average citizen to know the entire criminal code. The notion that an appellate court can “reinterpret[] the text of the statute,” and subject the citizen to criminal sanctions for something not plainly stated in the criminal code, is simply outrageous, and cannot be squared with Due Process of Law.

    Rather, based on the 13 police reports that I read in 2018, prosecutors seem to be mostly 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. . . . And of course most recently, in the University of Connecticut student case, two students have been prosecuted for shouting “nigger” while walking near dorms, but not addressing it to any particular student.

    The prosecutors in all of these cases should be disbarred and ordered to pay the defense costs out of their pockets. The statute says “advertisement.” What these people did, as offensive as it might be, is not advertisement under any definition.

  9. The best part of this discussion is that Prof. Volokh censors comments — and banned at least one commenter — for ridiculing conservatives.

    (Artie Ray says, ‘hi,’ everyone.)

    #What’sSoFunnyBoutPeaceLoveAndSelfAwareness?

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