I’ll defer to legal eagles on this, as always. But after reading half a dozen different stories about it, it sure looks unconstitutional to me. And not in a “5-4, depending upon what John Roberts had for breakfast” way either.
The facts couldn’t be simpler. Three UConn students were strolling through the parking lot of a university student apartment complex on the evening of October 11. To entertain themselves, two of them decided to play a spirited game of “let’s yell vulgar words for the fun of it,” which is just the sort of consequence-free mirth one might reasonably expect to have on a modern college campus. Eventually they got around to the most taboo word in American culture and decided to shout that one too, unaware — or unconcerned, I should say — that residents of the complex could hear everything.
It was caught on video:
— UCONN NAACP (@naacpuconn) October 12, 2019
An uproar ensued and the police were notified. Result: Misdemeanor charges of “ridicule” on the basis of race. Which, to my surprise, actually is a thing in Connecticut.
The arrests come amid outcry from students demanding that administrators address racism and promote inclusion on the university’s main campus in Storrs, Conn. Shortly after the parking-lot video went viral, another student alleged that two fraternity members used a racial slur against her at a party, the university’s NAACP chapter wrote in a letter published this week. On Monday afternoon, hundreds of students chanted, “It’s more than just a word,” during an on-campus march and rally, joining professors in calling for action, the Courant reported…
“I feel uncomfortable and scared on this campus at this point,” Areon Mangan, a UConn student, told WTNH last week. “We want change. This is not fair to us. It’s disrespectful and it’s just not okay.”…
On Monday, UConn’s NAACP chapter released a list of eight demands, which included updating the student code of conduct on racism and hate speech; protecting students who report such incidents; creating a mandatory course on diversity, racial discrimination and hate crimes; and hiring more black administrators, faculty, staff and police officers.
That background is essential to understanding why the two were charged, I think. There was a second (unrelated) incident involving someone allegedly saying the N-word, with tremendous pressure brought upon the university and local authorities to do something about it. UConn’s president has already announced that the school will immediately begin the search for its next chief diversity officer. As for the cops, they went thumbing through their book of statutes searching for something they could use to prosecute the offenders and came up with this turd:
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.
There are select circumstances in which shouting the N-word might earn you some criminal jeopardy, or at least a stiffer sentence for an unrelated crime you’ve committed. If you assault someone and use slurs while doing it, that’s a hate crime; if you’re convicted of the assault, the D.A. can ask for extra time to be added to your sentence to punish you for your hateful motive. In theory, you could also be charged for saying the N-word while confronting someone even if you haven’t actually assaulted them. Under the Supreme Court’s terrible but still technically viable “fighting words” exception to the First Amendment, words that are apt to cause an immediate breach of the peace can be criminalized and the offender charged for uttering them even if no breach of the peace results.
But that’s not what we have here. The defendants weren’t confronting anyone. It’s unclear if they thought anyone could even hear their conversation. Connecticut’s statute is a straight-up “hate speech” law, in which the “crime” is purely the offense given to others by the content of the defendants’ speech. That sort of thing isn’t supposed to exist (or at least isn’t supposed to be enforceable) under the First Amendment).
It’s tempting to assume that racial “ridicule” is a subject of recent statutory interest, with Connecticut’s modern leftist vanguard quietly adding a “hate speech” law to the state’s penal code in a show of ultra-wokeness. Not so. It turns out that Eugene Volokh wrote a piece for Reason last year about this very statute and its patent unconstitutionality. The law dates from 1917 and really was aimed at ending discrimination in “advertisements” specifically, just as the language says. I would have guessed that Connecticut prosecutors long ago stopped using it, knowing that any charges would be tossed in light of the revolution in free-speech jurisprudence during the last half of the 20th century. Surely, I would have told you, the charges in this case are a simple matter of ass-covering by the local D.A. and PD, knowing that a court will inevitably dismiss the case. Then cops and prosecutors can shrug and say to angry demonstrators, “Don’t blame us, we tried.”
But no, according to Volokh’s research, people in Connecticut really do get charged with this crime. Not a ton — only one conviction or so a year, on average — but prosecutors are in fact using the statute as a type of “fighting words” prohibition. Volokh wondered why defense lawyers aren’t challenging the statute aggressively on First Amendment grounds and guessed, plausibly, that it’s being used mainly as a lesser offense in plea-bargain cases. If there’s a confrontation and the defendant utters a slur, the prosecution may offer a guilty plea to “racial ridicule” as a compromise to the defense rather than try to take the assault case to court. Forced to choose between the risk of a stiff sentence if he loses at trial and the certainty of a lighter one if he cops a plea to an unconstitutional law, a defendant in Connecticut might prefer to opt for the latter and put the whole matter behind him.
Probably not the two guys here, though. There was no confrontation and their speech, however offensive, is undeniably protected. They’ll likely fight the law and win. Maybe UConn’s administration is going to try to arrange a deal with them where they’ll ask for the charges to be dismissed if the two agree to drop out and find a new school. If they refuse, then we’ll run into the question of whether a public university can expel a student for uttering the N-word. Stay tuned.