Connecticut’s ‘ridicule’ law sparks free speech debate

After two students were arrested and charged with a misdemeanor for using a racial slur at the University of Connecticut, a 102yearold law has drawn attention and prompted questions about whether it violates the

U.S. Constitution.

In Connecticut, “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.” That law was enacted in 1917, according to the Connecticut State Library.

According to police reports, UConn students Jarred Mitchell Karal and Ryan Gilman Mucaj were walking home from a bar on Oct. 11 when they “played a game in which they yelled vulgar words,” and “switched to saying a racial epithet” outside the Charter Oak Apartments. Karal told police that they “were acting dumb, idiotic and childish,” and that they were not intending to “broadcast what was said to any one person, we were just being immature.”

If convicted, they face up to 30 days in jail and a fine of up to $250. Their lawyers declined to comment.

Prosecutors have charged people with violating the statute 38 times since 2012, and there have been 10 convictions, according to the state Judicial Branch. Six people have been charged with the crime in 2019, and one convicted.

Eugene Volokh, a professor at the UCLA School of Law who teaches and writes about the First Amendment, called the law an “outlier,” and said he has “not seen any state statute that is framed the way the Connecticut law is framed.”

It was passed as “an act concerning discrimination at places of public accommodation,” which may have been an effort to prohibit businesses from posting signs banning and ridiculing racial or religious groups, he said.

In recent years, however, it’s been used more commonly for cases like Karal’s and Mucaj’s.

“I believe all the prosecutions in this century have been for this type of thing we think of as hate speech,” said Tadhg Dooley, a lawyer at Wiggin and Dana in New Haven who has worked on First Amendment cases. “It’s been on the books for quite a long time,” he said of the law, but “there’s practically no case law on it.”

He said the UConn students’ case is likely one of the only ones in which defendants are only charged with ridicule, and that it’s more commonly “added on to other charges that pertain to direct threats.”

The American Civil Liberties Union has defended the students’ right to use the offensive word, though they called it “morally abhorrent.”

“Although the conduct reported in this incident is reprehensible, it is not criminal,” national legal director David Cole said in a state

ment. “The First Amendment protects even offensive and hateful speech, so long as it does not rise to the level of incitement to violence, criminal harassment, or true threats.”

“Under existing free speech case law the students who were arrested will almost certainly not be convicted, making it imperative for the university to immediately address racism on campus, including but not limited to these recent incidents,” David McGuire, director of the ACLU of Connecticut, said in the same statement.

The Foundation for Individual Rights in Education also sent a letter to President Thomas Katsouleas and UConn’s chief of police, objecting to the arrests.

“FIRE is deeply concerned by the investigation and arrest of two students by the University of Connecticut Police Department pursuant to a statute that any reasonable police officer would have known is unconstitutional,” Adam Steinbaugh said. “However offensive the use of a racial epithet, not directed at any person, the First Amendment protects offensive language, and neither the University of Connecticut nor its police officers may abridge students’ First Amendment rights.”

Volokh also believes the Connecticut statute is unconstitutional, and said the students also can’t be prosecuted “for violating a statute that he didn’t violate.”

He pointed to the language of the law that addresses “by his advertisement,” which he said Karal and Mucaj were clearly not doing. Interpreting that to refer to any public statement “would clearly be unconstitutionally overbroad,” Volokh said.

UConn has defended the arrest of the students.

“Law enforcement officials are obligated to investigate potential criminal matters and present the results of their investigations to the chief prosecuting official, who determines whether there is probable cause to charge an individual with violations of existing law,” spokeswoman Stephanie Reitz said in a statement. The statute “was enacted by the Connecticut legislature and remains a valid law to this date.”

“Before an arrest warrant is executed, it must be approved by a judge. That process was followed in this case,” she said. “UConn is committed to providing a safe, inclusive, respectful place in which all people can learn and work. The recent incident is a reminder to all that this work is never done, neither at UConn nor in our society.”

Karal

Mucaj