Statute Cited in Students’ Arrests May be Unconstitutional
By Caleb Moore
University of Connecticut Newswriting I
December 2019
STORRS — Decades of legal contention and the US Constitution has determined that just because speech might be abhorrent doesn’t mean it’s illegal, and two students recently arrested at the University of Connecticut may benefit from that.
The men were arrested on Monday, Oct. 21, after being identified as appearing in a video shouting a racial slur while walking outside a residential building complex on campus.
The two were charged under Connecticut General Statutes § 53–37a, which reads: Ridicule on account of creed, religion, color, denomination, nationality or race. “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.”
If convicted of such a misdemeanor, the students could face a prison sentence of one to five years and/or a fine of up to $5,000.
“I don’t think this law, which has been on the books for a long time, is constitutional,” said Justin Silverman, Executive Director of the New England First Amendment Coalition. “The government can’t ban speech just because it’s merely offensive.” He went on to describe the caution with which citizens should give up speech rights. “With this law, you’re allowing the government to determine what is offensive,” he said.
Silverman held the view that since the slurs were not directed at an individual and were simply said in a public space, they were permitted under the First Amendment.
Charter Oak apartment complex, where the two students in question were filmed. / Photo by Caleb Moore
He said UConn, being a public university, should exercise caution when punishing students like the two involved in the slur-shouting case.
“Public universities are obligated to uphold the First Amendment,” he said. “When punishing, they should be very careful to do so without violating the First Amendment rights of the students.”
Many universities both private and public have speech codes that outline proper speech/actions for their students. UConn describes actions such as the aforementioned one as bias-related incidents, and writes “A bias-related incident is an incident that negatively targets, intimidates, or threatens an individual or group due to race, ethnicity, ancestry, national origin, religion, gender, sexual orientation, gender identity or expression, age, physical, mental, and intellectual disabilities, as well as past/present history of mental disorders…bias related incidents, as defined in this protocol, are not tolerated at the University of Connecticut and individuals who are victims of bias related incidents may be protected through the Student Code and Connecticut laws related to discrimination, harassment or intimidation based on bigotry or bias,” in their Bias Incident Protocol. A violation of this protocol can result in “educational remedies,” which aren’t defined.
Silverman disagreed with the very concept of a speech code.
“I don’t think it’s a wise decision,” he said. “Instead, focus on the actions of students. Is it harassing? Threatening?” According to Silverman, universities would be better served by using such incidents to educate and inform their student bodies. The words of students, in his opinion, should not matter as much as their actions.
National Legal Director David Cole, ACLU, agreed that the Connecticut statute violates the free speech rights established in the Constitution.
“It’s plainly overbroad and makes protected speech a crime,” he said via email. “Hate speech or speech that ridicules or holds up to contempt is generally protected by the First Amendment, unless it amounts to “fighting words,” words personally directed at an individual that would immediately cause the target to strike out violently in response. The law is on its face far broader than that, and also discriminated based on viewpoint by targeting only some kinds of ridicule and not others (eg, race but not sex).”
Hate speech, and whether it is protected under the First Amendment, has a long history of legal contention with dozens of cases having gone before the Supreme Court.
In the landmark decision of Brandenburg v. Ohio, the Supreme Court determined that the government cannot lawfully punish or restrict hate speech unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” This established the Brandenburg Test, a litmus test of sorts to determine if hate speech could be restricted. For restriction to be legal under the Constitution, the speech must contain the intent to speak, the imminence of lawlessness, and the likelihood of lawlessness.
Cole, an experienced constitutional litigator and professor at Georgetown Law, also said that the slurs uttered by the students couldn’t be considered threats.
“Some words directed at an individual might not be protected, if they are deemed ‘fighting words’ or a threat of violence. But absent targeting of any individual, they are neither,” Cole said. He went on to say that since the two charged students didn’t direct the slurs at an individual, they shouldn’t have been charged under such a statute (in addition to it being unconstitutional).
Alternatively, a study published in Case Western Reserve Law Review entitled “Legal Realism and the Controversy Over Campus Speech Codes” goes so far as to explicitly endorse codes that restrict speech.
“We conclude that American institutions are free to enact reasonable hate-speech restrictions in times, like ours, when minorities and women are under siege,” it writes.
The courts disagree. In Corry v. Stanford, when considering a Stanford University speech code, the court ruled that Corry and other students’ rights had been encroached upon by the university.
The decision reads “First, [Stanford’s] Speech Code does violate [Corry’s] 1st Amendment rights since the Speech Code proscribes more than just “fighting words” as defined in Chaplinsky, supra, and the later lines of case law. To this extent, therefore, [Stanford’s] Speech Code is overbroad.”
Supreme Court Justice Samuel Alito wrote a decision once that said, “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”
Of course, just because hate speech may be protected by the Constitution doesn’t mean it is protected in the court of public opinion. As demonstrated by the numerous protests, marches, and calls to action that followed the students’ arrests, the public generally ostracizes those potentially associated with hate speech.
