Government officials find it very tempting to punish people for expressing “bad” viewpoints. Laws that apply to speech that government officials view as bad often are interpreted broadly, to cover speech that their actual text doesn’t even reach or prohibit, especially if the speech offends people of a particular group, or is deemed hateful. For example, laws against discrimination have been interpreted by some courts as covering things like employers putting Bible verses on paychecks (even if it is on every employee’s paycheck, without discrimination), or sexually offensive material or sexually themed art on workplace walls (even if the material contains sexually explicit depictions of both men and women), under the theory that that such speech constitutes sexual harassment or religious harassment, and thus amounts to “discrimination,” even if all employees are subjected to such speech, without discrimination. Courts have done that even though it appears to violate the First Amendment, as law professor Eugene Volokh notes.
Another example is how Connecticut police and prosecutors arrest and prosecute people for noncommercial hate speech under a state law that only bans “advertisements” containing hate speech, and thus logically does not ban any hate speech except in attempts to advertise a product. These prosecutions in Connecticut violate the First Amendment, as well as principles of fair notice and due process, because the statute plainly does not reach the “hate speech” of any of the people prosecuted under it, none of who said anything racist in a commercial advertisement. Even if the law covered all hate speech, it would still be unconstitutional, because the Supreme Court has said that hate speech is generally protected by the First Amendment, such as on streets and in public places.ma
The Foundation for Individual Rights and Expression has the details, and you can read its court brief about this filed in the Connecticut Supreme Court (written by professor Volokh and a FIRE lawyer). Volokh has been writing about this law for over a decade. Here’s an excerpt from FIRE’s summary, written by FIRE lawyer Adam Steinbaugh:
Connecticut’s “racial ridicule” statute (Gen. Stat. § 53-37) [enacted in 1917] 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 guilty of a class D misdemeanor.
By its plain terms, the law only applies to an “advertisement” of some sort…. But that’s not how police and prosecutors in Connecticut treat the law in practice. In 2019, for example, police at the University of Connecticut tracked and arrested several students for “playing a game” in which they uttered vulgar, transgressive words at a progressively louder volume—starting with “penis” and later replacing it with “nigger”—while walking through a parking lot. They weren’t saying the words to anyone in particular, and the only way people learned what the students were saying was when someone turned up the volume on a cell phone recording.
The university’s police launched an 11-day investigation using drivers’ licenses, the surveillance cameras, WiFi phone access data, and card swipe data to figure out who the students were. When police identified them, the students were arrested and charged with violating the “racial ridicule” law.
What were the students advertising? Nothing. Still, they were being arrested under this law. This raised the question: Who else was?
This year, to learn how police were actually applying the law, FIRE undertook a broader search for records, expanding on similar requests first issued by Professor Volokh. The records we found—all of which are included in the brief—demonstrate that the UConn students do not represent a one-off example of police and prosecutors applying the law outside the context of advertisements. In fact, of the dozens of arrests, charges, and convictions we documented, none had anything to do with commercial advertisements.
Instead, as our brief explains, Connecticut law enforcement agencies regularly use the law to arrest people for spoken race-based insults and remarks, especially when those remarks are directed at police officers.
Those charged under the law are often homeless or mentally ill. Many arrests involve people already being arrested for something else and hurling insults at the arresting officers, who stack the “racial ridicule” charge on top. As our brief explains:
For example, the East Hartford Police Department has repeatedly charged people with violating § 53-37 for disparaging its white officers. One white officer wrote that he was “highly offended” when an arrestee “stated out loud” that the arresting officers were “crackers,” and explained in the police report that “cracker” is “a term used to ridicule or disparage a Caucasian person.” One subject was charged with violating § 53-37 for calling his arresting officers “white pigs,” “white pussy cops,” and “white bitches.” And an “intoxicated” and “belligerent” detainee was charged with violating the statute because she responded to booking questions with “Fuck you bitch as[s] nigga cracker” and “Suck yo daddys cock and choke on it you bald headed cracker.” Similarly, another man was charged because he “used racially offensive and derogatory language” during the booking process, calling the officer a “cracker.”
Of course, § 53-37 is not limited to insults directed at white officers. In New Britain, a man was charged because, while being booked, he repeatedly referred to an officer as “nigger.” In Manchester, a man was charged for calling a police officer a “black ass nigger fucking cop.” And in Vernon, a man was charged under the law because he yelled “[f]uckin’ Nigger” while resisting arrest.
As advocates for free expression often warn, subjective limitations on “hate speech” can—and in Connecticut have been—utilized to protect the powerful, sometimes against members of minority groups the laws are ostensibly designed to protect..
Law enforcement’s interpretation of the “racial ridicule” statute violates the First Amendment. While some instances of hateful expression may be criminalized because they fall into a category of unprotected speech—like “fighting words” or “true threats”—there is no “hate speech” exception to the First Amendment.
And insults directed at police officers are especially unlikely to amount to unprotected “fighting words”—that is, words in a face-to-face encounter likely to cause an immediate breach of the peace—because police are expected to have the mettle to endure insults without responding with violence….
In 2021, attorney Mario Cerame—who defended the UConn students—filed a federal lawsuit of his own challenging the constitutionality of the “racial ridicule” statute, pointing out that its interpretation meant that he could be arrested for making off-color jokes among friends. The state responded with bombast, arguing that the notion that the law could reach noncommercial speech was “imaginary, implausible,” “illusory, unfounded, and not credible,” “completely absurd,” “implausible,” and a “farce.”
Well, not if you ask the police enforcing the law, or the people they arrest.
Because the federal court was uncertain about how the state interprets the law, it used a procedure—called “certifying” a question—to ask the Connecticut Supreme Court what the law means by “advertisement.”
Our amicus brief demonstrates to the Connecticut Supreme Court that Cerame has a point about how the law has been interpreted and urges the court to clarify that the law’s use of “advertisement” means—at least—that it does not reach noncommercial speech. That would go a long way toward putting police on notice that the law doesn’t authorize them to arrest people for insulting them.