The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From the AP (Dave Collins):
"Having racist ideas or sharing racist ideas is something that we actually protect," said Emerson Sykes, a senior staff attorney with the ACLU's national chapter. "Even if that viewpoint is offensive, even if it's deplorable, we don't want the government making the call about what's OK to say and think and what is not. But we have limitations on that right." …
David McGuire, executive director of the ACLU of Connecticut, … said the hate crime law on ridiculing remains an unconstitutional restriction on free speech.
For more on the arrest, see this NBC Connecticut story:
A teenager who attends school in Fairfield was arrested after an alleged racist post circulated on social media, according to police.
Officials said a 16-year-old boy allegedly posted a photo on Snapchat which included a racial slur directed towards a Black male classmate, who was also in the photo.
Fairfield Warde High School administrators and police are investigating the incident and the teen was arrested on charges including ridicule on account of creed, religion, color, denomination, nationality or race, as well as second degree breach of peace, officials said.
Some thoughts, which I also posted earlier this month, when the story first broke:
[1.] The "racial ridicule" statute is 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):
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.
[2.] The statute is pretty obviously facially 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. To quote Justice Alito's opinion (with which the concurrence seemed to fully agree),
Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express "the thought that we hate."
[3.] But wait: The statute in any event only covers "advertisement[s]"; it seems extremely unlikely that the post vaguely described in the article fits that. "Advertisement" generally isn't used in legal contexts to refer to speech more broadly, and the statute was enacted in 1917, as "An Act concerning Discrimination at Places of Public Accommodation." It really was aimed at "advertisement[s]" for businesses, not at racist opinions generally.
To be sure, Connecticut prosecutors haven't been 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.
Instead, based on the over a dozen police reports that I've read (going back about 20 years), 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 slurs or, in one case I found, religious slurs.
Now that might be less troubling than trying to punish, say, political advertisements. But is itself unconstitutional. 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."
[4.] And 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 fighting words bans 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."
[5.] Connecticut does have a general and constitutionally valid fighting words statute: the "breach of the peace" statute, which was also reported as part of the basis for the arrest. But it's constitutional precisely because it has been limited to in-person insults that risk an immediate fight:
Because the rationale underlying the fighting words doctrine is the state's interest in preventing the immediate violent reaction likely to result when highly offensive language is used to insult and humiliate the addressee, "[t]he potential to elicit [such] an immediate violent response exists only [when] the communication occurs [face to face] or in close physical proximity."
That is extremely unlikely with an online post, except in highly unusual circumstances (e.g., if A posts something insulting about B that is likely to be read when the two are also "in close physical proximity" with each other). So I doubt that the arrest can be valid even under that statute. But it's certainly invalid, I think, under the racial ridicule statute.