Connecticut "Racial Ridicule" Ban Challenged in Federal Court

The law is unconstitutional as written—but it has also been used by prosecutors far beyond its specific terms.

Connecticut General Statutes § 53-37 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."

The statute is 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. 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 in Matal v. Tam (2017) (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."

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; and since then, the libel exception has been dramatically narrowed.

Now on its face, of course, the Connecticut statute only covers "advertisement[s]." 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 (though on its face it may also cover political advertisements), not at racist opinions generally.

But 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. The two most-publicized recent incidents (see the UConn case and the Fairfield Warde High School case), for instance, involve nothing that could be labeled an advertisement.

In some earlier incidents—about a dozen that I've seen, 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. (The two most recent incidents don't involve such face-to-face personal insults.) And Connecticut does have a general and constitutionally valid fighting words statute (which covers racist fighting words alongside others): the "breach of the peace" statute, which is valid precisely because it has been limited to in-person insults that risk an immediate fight.

Yet even punishing fighting words under the racial ridicule statute is unconstitutional, for two reasons:

1. Such insults may be offensive and empty of serious arguments, but they aren't advertisements. The defendants whom the prosecutors had prosecuted were 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." [UPDATE: Just to be clear, this is a reason why punishing fighting words under the statute would violate the Due Process Clause, because the text and judicial interpretation of the statute doesn't give "fair notice" that the statute applies to the conduct.]
2. 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).

In any event, Connecticut lawyer Mario Cerame has just filed a lawsuit (Cerame v. Lamont) on his own behalf, seeking to invalidate the statute. He had represented one of the defendants in the earlier UConn case, but the prosecutors dismissed that racial ridicule charge, so there was no occasion for him to challenge the statute on appeal; filing the lawsuit for himself can get the courts to consider the question going forward. I look forward to seeing how the state will try to defend the statute.