On Wednesday, Connecticut’s Supreme Court held that the state’s “racial ridicule” statute applies only to commercial advertisements. That holding tracks the recommendations FIRE made in a friend-of-the-court brief last year, which pointed out that police had long abused the law to arrest people for derogatory speech that had nothing whatsoever to do with the statute.
The Court’s ruling should not have been necessary in the first place. Its conclusion should have been obvious to anyone who spends the brief amount of time necessary to read the statute (with emphasis added):
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.
But Connecticut’s police and prosecutors had long since given up on reading this law before applying it. As FIRE’s amicus brief with Eugene Volokh pointed out, police reports that FIRE and Volokh obtained showed that police applying the law had transformed it into a general purpose prohibition on hate speech, especially if that speech was aimed at police officers.
Because police applied a law about advertisements to people who were not advertising anything, people were arrested, charged, and sometimes even convicted of violating a law which did not apply to them.
That meant that Connecticut police frequently violated the First Amendment.
While there are narrow exceptions to the First Amendment, such as for true threats or incitement, there is no general exception for “hate speech.” And for good reason: a limit on offensive speech can readily be repurposed by the powerful to suppress speech, including to the detriment of people that “hate speech” laws are ostensibly designed to protect.
Connecticut’s police and prosecutors must stop abusing the law to arrest people for insulting language.
That’s what happened when police interpreted Connecticut’s statute as a general-purpose prohibition on “hate speech.” They wielded this law to target speech directed at those in power (for example, insults directed at police officers), and against defendants who often did not have the resources to mount a strong defense: the homeless, mentally ill, and people already facing a litany of other charges.
Institutions applied it in other abusive manners, too. For example, the University of Connecticut shamefully applied the law to students who uttered a racial slur to themselves in a parking lot by launching an 11-day investigation, using drivers’ licenses, surveillance cameras, WiFi phone access data, and card swipe data to identify and arrest the students. (FIRE called on UConn to abandon the effort, but the university blamed the state.)
FIRE filed an amicus brief in the Connecticut Supreme Court with professor Eugene Volokh asking the court to remind police and prosecutors that an outdated "racial ridicule" law cannot be used to arrest people for speech that is not an advertisement.
Fortunately, Connecticut’s Supreme Court did exactly what our amicus brief asked: It read the law narrowly, limiting its scope to advertisements.
Still, even the narrowed version of the law is not necessarily, in itself, constitutional. While the state may properly limit advertisements that convey a willingness to engage in unlawful discrimination, the statute itself could be read to reach advertisements that invoke — or are thought to invoke, even if not intended — stereotypes. But to our knowledge, the law has never been applied to advertisements at all, as none of the arrests we uncovered through public records requests involved advertisements.
This much is clear: Connecticut’s police and prosecutors must stop abusing the law to arrest people for insulting language. However, if police do continue to arrest people who are not involved in advertising, defendants can now more robustly defend the charges — and, importantly, officers who abuse the law are less likely to be able to claim qualified immunity. And maybe, just maybe, police departments will start training officers about what the law actually means.
FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If you’re faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533).