The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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."
Yet despite its text, Connecticut prosecutors haven't been enforcing the law as limited to "advertisement[s]." 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. And in some earlier incidents—about a dozen that I've seen, going back about 20 years—prosecutors seemed 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. Such fighting words might be punishable through specialized statutes that cover racist fighting words alongside other fighting words. But by its text, the "racial ridicule" statute doesn't extend to them, and the prosecutions I describe (some of which led to convictions) strike me as entirely legally unjustified.
Nor is there historical evidence suggesting that "advertisement" had some broader historical meaning: 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. And there are no appellate decisions reinterpreting the text of the statute (as there are for some statutes) as something other than what the statute says. The only reasoned decisions I could find, the nonprecedential National Socialist White People's Party v. Southern New England Telephone Co. (D. Mass. 1975) (3-judge court), and the one decision cited in that case, State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."
Late last year, Connecticut lawyer Mario Cerame filed a federal 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 the racial ridicule charge in that case, so there was no occasion for him to challenge the statute on appeal; filing the lawsuit for himself could get the courts to consider the question going forward. And just today, the district court stated that it would ask the Connecticut Supreme Court to authoritatively construe the statute:
In connection with the pending Motion to Dismiss, the court intends to certify the following question to the Connecticut Supreme Court: Does the speech alleged in Cerame's Complaint (paragraphs 13-18) come within the scope of the phrase "by his advertisement" as that phrase is used in Section 53-37 of the Connecticut General Statutes? Should either party object to this court's decision to certify the above question, they should file an opposition by Monday, July 18, at noon.
I hope the Connecticut Supreme Court interprets the statute as covering only advertisements, and preferably only commercial advertisements, to avoid the obvious First Amendment problems that would arise if the law were read as banning political ads (election-related or otherwise) that ridicule people or groups based on race or religion. (Indeed, I expect I'll probably file an amicus brief along those lines.) To quote Justice Alito's opinion in Matal v. Tam (2017) (with which the concurrence in that case 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 even if the statute were limited just to commercial advertising, I think it would still be unconstitutional: Though commercial advertising that states that goods or services will only be available on a discriminatory basis is constitutionally unprotected (see, e.g., Pittsburgh Press Co. v. Pittsburgh Comm'n on Hum. Rels. (1973) and Rumsfeld v. FAIR (2006)), I don't think a ban on commercial advertising that ridicules various groups falls within this narrow doctrine, in part because such a ban applies even to ads that clearly don't indicate an intent to discriminate (e.g., ads for off-the-shelf products available in mass-market stores that are highly unlikely to deny service to customers based on race or religion). To quote R.A.V. v. City of St. Paul (1992), "a State may not prohibit only that commercial advertising that depicts men in a demeaning fashion," and that logic would apply to racial and religious groups as well.
Yet at least there the argument might be a bit close, given the lower protection offered to commercial speech. A general ban on speech that engages in racial or religious ridicule would be clearly constitutionally unprotected. And, again, that is not the ban that the Connect Legislature enacted.