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.

Comments

[Krayt]

Keep fighting the good fight against letting anti-harrassment censorship escape the containment domains of business speech and college speech (the latter leveraged through threats to pull money, ironically not, you know, through convincing speech. Actually business is under that thumb, too. Obey or oblivion.)

Losing this battle would introduct exactly what dictatorships worldwide use on a daily basis: “Such speech is harmful to The People, or this or that group”, for things that protect the regime. Egyptian military’s “CNN is banned because it’s dangerous for The People to see it unfiltered by government” follows naturally and quickly.

[David Jay]

Amen.

[Dr. Ed 2]

Wouldn’t the SCOTUS decision about The Slants (band) apply here?

[Michael P]

That decision was about judicial scrutiny when the federal government decides which trademarks to register, so … no?

[Frank Drackman]

Let me guess, “Cracker, Redneck, Honkey” aren’t included

[Bob Hein]

It was a Pyrrhic victory for Connecticut. They basically won their case and are going to get a case thrown out by admitting that they have been charging and convicting people by misreading a statute. And there are some legal arguments that even as legally read, the statute is constitutionally suspect. Now my question is, why did it take this long for the State to admit what has been so obvious to many observers for years?

[Gandydancer]

Evidently it hasn’t been so obvious that the courts took notice of that fact when encountering the bogus prosecutions.

[Dr. Ed 2]

How often was it plead down to this from something else?

It’s like the myth of the “nonviolent drug offender” in prison — often the gun charges were dropped as part of the plea bargain.

[Gandydancer]

Plea bargains have to be approved by the court, and there is in these cases no excuse for that. It isn’t a lesser included offense, it’s a completely bogus charge.

[Rossami]

From what I remember of the prior articles on this case, it “took so long” because there were no (or almost no) prosecutions under this law for most of its life. It became controversial only when prosecutors dug it up and began trying to use it everywhere.

But that’s memory. I could be wrong.

[BillyG]

Now my question is, why did it take this long for the State to admit what has been so obvious to many observers for years?

Simple. Incentives.

When does the state ever voluntarily give up power? It’s in prosecutors best interests to always have more laws. It gives prosecutors more things to charge people with. Gives them more power. Eliminating a law reduces their power. ergo. Prosecutors always want to keep laws. Constitutionality be damned.

[John F. Carr]

Quoting from the decision:

Contemporaneous newspaper articles reveal that the legislation was pro- posed to target a specific, discriminatory commercial practice: the posting of signs outside a business establishment, especially places of public accommodation or amusement, indicating that members of certain ethnic, racial, or religious groups were not welcome. See, e.g., ‘‘Senate Business,’’ Meriden Daily Journal, January 23, 1917, p. 1 (stating that Senator Frederic Bartlett’s pro- posed measure would impose fine and/or imprisonment for ‘‘discrimination against any nationality, sect, creed or class in places of public accommodation or amusement’’); ‘‘Would Abolish Discrimination Notice Custom: Bartlett Introduces Bill to Ban ‘No __ Wanted’ Litera- ture,’’ Bridgeport Evening Farmer, January 23, 1917, p. 1 (noting that proposed legislation would prohibit ‘‘the posting of signs, or advertising by hotels, barber shops, etc., which discriminate against any sect, color or nationality’’).

Such laws are common. The executive branch has construed federal law to prohibit expressing a racial preference in job ads, for example.

[Gandydancer]

So, unconstitutionality is “common”. In other news, water is wet.

[Michael D]

In my state, I have seen police utilize suspect law to prosecute people for crimes they did not commit. Specifically, the crime of criminal impersonation vs the crimes of identity theft. The former is a misdemeanor of presenting oneself as another person and using their identifiers to make others believe they are the other person. The latter is a property crime in which an individual uses another person’s identifiers to engage in some type of theft, defrauding another of property, etc. It is a felony, in most cases, depending upon the value of the property stolen.

Officers have attempted to use the latter offense as the felony version of the former when the allegation is only that the defendant committed the former. When asked, one officer stated he escalated the offense to the felony charge because he (the officer) was angry/upset with the defendant.

My point is that there will always be attempts to stretch the law to encompass more than the intent of the legislature which wrote the law. Thankfully, most courts will stop that attempt right away. The shameful thing here is that the case went all the way to the state’s highest court.

The prosecutors and all who sought to maintain this charge against the defendant (and others like him) in a clear violation of the specific language of the law ought to face disciplinary action.

But we all know they will face no such scrutiny. Their immunity is almost absolute. This was almost another of many miscarriages of justice bordering on prosecutorial misconduct. The LEOs should have been taught better but the attorneys involved had to know better but followed through anyway, taking the appeal as far as it could go.