The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Connecticut S. Ct. Sharply Limits State's "Racial Ridicule" Law
Prosecutors and police had read the law, which restricts "advertisements," as broadly banning racial slurs; the Connecticut court read it, as written, to restrict only commercial advertisements.
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 many recent incidents prosecutors and police seemed to be mostly enforcing the statute to prosecute or arrest 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. 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.
I'm glad to say that, in yesterday's Cerame v. Lamont, the Connecticut Supreme Court indeed read the statute narrowly, concluding that "the legislature intended to restrict the meaning of 'advertisement' to commercial speech."
Even so limited, the statute might be unconstitutional; see 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"). But in any event, this is a much narrower reading—and one much more consistent with the text—than that used by many Connecticut officials in recent years.
Because of this holding, the court concluded that plaintiff Mario Cerame lacked standing to challenge the law, because he had expressed no intention of publishing commercial advertising that ridiculed people based on race, religion, or nationality. But I think that on balance Cerame had succeeded, by setting a precedent that the statute cannot be read as broadly as it has been. (Cerame 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.)
Disclosure: Adam Steinbaugh (of the Foundation for Individual Rights and Expression) and I filed an amicus brief on behalf of FIRE and myself in the case; many thanks to our excellent local counsel Zachary Phillipps of Wofsey Rosen Kewskin & Kuriansky, LLP.