Connecticut “Racial Ridicule” Ban Challenged in Federal Court

Connecticut General Statutes § 53-37 provides:

  • “Anyone who advertises for him”
  • “Useful or obscene contempt for any class or person,
  • “on account the creed or religion of such persons or classes of people,
  • “Shall not be punished with a fine of more than fifty dollars, or in prison for more than 30 days, or both.”

Because it prohibits speech on the basis of its content and viewpoint, as well as speech that is based upon race or religion, this statute is facially invalid. The Court repeatedly ruled that speech that is racist or religiously biased is constitutionally protected, as well as speech that expresses different ideas. To quote Justice Alito’s opinion in Matal v. Tam 2017 (with which agreement it seemed that the concurrence was complete).

Hateful speech on the basis race, gender, religion or age is unacceptable. But the best thing about our freedom of speech law is the fact that it protects the right to “the thought 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. Only a small part BeauharnaisIts conclusion about a First Amendment libel exemption likely survived; however, since then the exception has been drastically reduced.

On its face, however, Connecticut’s statute does not cover “advertisement.”[s].” The statute, which was known as the “An Act Concerning Discrimination in Places of Public Accommodation”, was adopted by Congress in 1917. It was intended to be “advertisement.”[s]For businesses, though it might also be used to cover political advertising), but not for racist opinions.

However, Connecticut’s prosecutors aren’t following the law exactly as written. There have been no cases against Connecticut prosecutors for promoting ridicule of people because they are religious or race. Two recent cases that have been most widely reported (see UConn case or Fairfield Warde High School) involve nothing that could possibly be called 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. These face-to-face insults are not what the incidents involve in recent years. Connecticut has a constitutionally-valid fighting words statute. It covers both racist and non-racial fighting words. The “breach of peace” statute is also valid. This statute applies only to insults in person that could lead to an immediate fight.

For two reasons, even a punishment for fighting words in the racial ridicule statute would be unconstitutional.

  1. Although such insults might be offensive, they are not likely to lead to any real arguments. They aren’t ads. According to the plain text of statute, the defendants that the prosecutors had tried to charge were not guilty. There aren’t any appellate decisions that reinterpret the text of statutes (as is the case with some statutes), so defendants were not guilty either under the law as it was written or as authoritatively construed. The only nonprecedential, I found, was, indeed. National Socialist White People’s Party against Southern New England Telephone Co. (D. Mass. 1975) (three-judge court), the only decision in this case. State v. Jensen (Conn. Cir. Ct. 1969), read the statute—consistently with its text—as genuinely limited to “advertisements.”
  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).

Mario Cerame, a Connecticut attorney has filed a lawsuit.Cerame v. LamontHe filed the lawsuit on his behalf to nullify the statute. Although he had previously represented one of UConn’s defendants, the prosecutors disregarded the charge for racial mockery. He could not challenge the statute in appeal. Filing the suit for his own benefit can allow him to ask the courts for further consideration. The state is expected to defend this statute. I am looking forward to that.