Connecticut General Statutes § 53-37 provides,
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 fined not more than fifty dollars or imprisoned not more than thirty days or both.
This strikes me as pretty clearly unconstitutional, because it suppresses speech based on its content (and viewpoint), and because there’s no First Amendment exception that covers such speech. Yet the statute seems to be pretty commonly enforced; the Connecticut criminal records database on Westlaw uncovers 79 prosecutions since 1996, 29 of which led to convictions. [UPDATE: I originally wrongly said there were 79 convictions.] Do any of you know more details on how the statute is enforced, whether there’s some narrowing construction that has been imposed on it (though my Westlaw search reveals no cases doing so), whether it’s been challenged, and so on? Even if it’s limited to race- or religion-based fighting words, that would be unconstitutional under R.A.V. v. City of St. Paul; but in any event, at this point I’d just like to know how the statute is actually being used.
By the way, I know that Beauharnais v. Illinois (1952) upheld a group libel statute, but that decision is widely and rightly regarded as obsolete, given the last 50 years of First Amendment jurisprudence. The only part of Beauharnais that likely survives is its general conclusion that there is a libel exception to the First Amendment; since then, that exception has been dramatically narrowed.
UPDATE: I noticed, by the way, that the statute is listed in various Connecticut government documents — alongside many other statutes — under the “affirmative action” category, for instance see this Affirmative Action Policy Statement and this Affirmative Action – Laws List. I also noticed that the 1999 “Hate Speech on the Internet” report from the Connecticut legislature’s Office of Legislative Research has noted that the statute’s “constitutionality is questionable under the U.S. Supreme Court’s rulings.” But I’d still like to know just how it’s being applied.
Sun Tzu's Nephew says:
Would it cover something like “stupid legislator”?
June 7, 2010, 5:53 pmMonty says:
What if ‘advertisement’ was read to apply it only to commercial speech? (hypothetically, I have no idea how its actually used)
June 7, 2010, 6:30 pmConstantin says:
Zealous enforcement would effectively kill stand-up comedy in the state of Connecticut.
“White people do this. Black people do that.”
June 7, 2010, 6:31 pmEH says:
Connecticutanians legislate like this.
June 7, 2010, 7:30 pmManju says:
Well, clearly they’re pinning their hopes on the commercial speech exception. So the question would be to what degree can the state censor otherwise consitutional speech if its part of an advertisment?
June 7, 2010, 7:48 pmEugene Volokh says:
I very much doubt that the 79 convictions in the last 15 years in Connecticut stem from commercial advertising that ridicules people based on race and religion. Such advertising, I suspect, isn’t going to be terribly effective these days, and is thus likely to be rather rare (though maybe I don’t really know Connecticut).
But beyond this, R.A.V. makes clear that such a law would be unconstitutional even as to commercial advertising: “[A] State may choose to regulate price advertising in one industry but not in others, because the risk of fraud (one of the characteristics of commercial speech that justifies depriving it of full First Amendment protection) is in its view greater there. But a State may not prohibit only that commercial advertising that depicts men in a demeaning fashion.”
June 7, 2010, 7:56 pmChris Travers says:
Well, given that Connecticut is on average “whiter” than the rest of the USA, I would suggest that this might well be evidence that white people are genetically predisposed to be less intelligent than other races….. ;-)
Do I now dare set foot in Connecticut?
June 7, 2010, 9:55 pmPeteP says:
Why is it always liberals that are so consumed with supressing other people’s free speech, while they are so devoted to protecting their own ?
June 7, 2010, 9:59 pmShelbyC says:
Cite? Connecticut ain’t just Fairfield county, ya know. And even Fairfield county ain’t lily white.
June 7, 2010, 10:14 pmJRL says:
So I guess since it’s just race and religion, that Progressive Insurance commercial that mocks homosexuals is still okie dokie.
June 7, 2010, 10:39 pmGideon says:
I haven’t had any experience with this statute and wasn’t even aware of its existence until I read this post. I’ll ask around, though, and see if any other criminal law practitioners have.
June 7, 2010, 10:49 pmMichelle Dulak Thomson says:
ShelbyC,
I think Connecticut as a state is “whiter than average” for the US. At least, this suggests so. The Census Bureau as of 2008 thinks that Connecticut has fewer blacks, fewer Hispanics, fewer Pacific Islanders, fewer Asians, and fewer Native Americans in proportion to population than does the US as a whole. (Oh, and fewer “mixed-race persons” as well.) Will that do?
June 7, 2010, 11:01 pmRacial ridicule in Connecticut | a public defender says:
[...] notes that the statute has resulted in 79 convictions since 1995, not a large number by any stretch, but [...]
June 7, 2010, 11:08 pmShelbyC says:
Michelle, fair enough.
June 7, 2010, 11:43 pmPersonFromPorlock says:
Hmm… do TEA Partiers have a ‘creed’? It appears to me that they do (i.e., “Taxed Enough Already!”), and that they’ve been ‘ridiculed and held up to contempt on account of’ it by those who call them “teabaggers.”
I’m sure the Connecticut AG will be getting right on it.
June 7, 2010, 11:47 pmDr. K says:
So, are blonde jokes still OK?
Or does that fall under “color”?
June 8, 2010, 5:55 amPubliusFL says:
It depends, too, on whether you mean “whiter than the average for the U.S. as a whole” or “whiter than the average state,” and whether by “average” you mean mean or median. 28 states are whiter than Connecticut, and only 21 are less white. The national mean is heavily affected by California, Texas, and New York.
June 8, 2010, 8:28 amSmooth, like a Rhapsody says:
which Progressive commercial mocks homosexuals?….the one with the guy who sold his watch to his friend?
June 8, 2010, 8:34 amSeaDrive says:
Was this statute passed by liberals? Was it signed by a liberal governor?
June 8, 2010, 10:03 amA. Criminal says:
If they passed it and signed it, then they’re (modern) liberals regardless of how they describe themselves.
June 8, 2010, 10:34 amJ. Aldridge says:
Under original free speech meaning it is constitutional. It is probably unconstitutional to suggest the law is unconstitutional under the federal 1A since there is zero evidence the states ever replaced their own bill of rights with the ones found under the U.S. Constitution.
June 8, 2010, 10:42 amEH says:
“TEA” is a backronym when said to mean, “taxed enough already.” They called themselves teabaggers before anybody else did, and it was only when they learned what the rest of the world considers to be “teabagging” that they scrambled to find another term.
June 8, 2010, 12:15 pmJeff Hall says:
What is your source for this?
June 8, 2010, 12:38 pmTed says:
I suppose pornography and indecency is Liberal speech, as opposed to others’ speech?
Uh, your anti-incorporation mumbo-jumbo doesn’t mesmerize me. Not least because the Connecticut Constitution says:
June 8, 2010, 1:22 pmEH says:
Backronym:
Orange County Register
Politico
Yahoo Questions
Self-teabagging:
June 8, 2010, 1:46 pmTPM
National Review
CNN
J. Aldridge says:
Attention: The discussion was the federal 1A and not Sec. 4 of the Connecticut Constitution. You might also want to research “being responsible for the abuse of that liberty.”
June 9, 2010, 12:22 amPersonFromPorlock says:
You may have a point, judging from your subsequent comment, and those charged with the crime may have a defense at their trial. But the hostile use of “teabagger” is still clearly meant to play on “Taxed Enough Already” and “TEA party” as ridicule. I expect the Connecticut AG will put the matter before a grand jury Real Soon Now.
June 9, 2010, 1:22 pmJune 10 roundup says:
[...] problems, you’d think, but has resulted in many prosecutions and some convictions [Volokh, [...]
June 10, 2010, 1:15 amarch1 says:
Trying to understand the statute on its own terms: What does “on account of” mean?
E.g. does the statute allow a (likely ill-advised) Connecticut ad for a critical thinking seminar to ridicule the entire set of people who hold mystic beliefs unsupported by the evidence?
Or would such an ad be in violation because it had ridiculed many people “on account of” their religion or their (mystic) creed?
June 11, 2010, 1:51 amJames Fulford says:
According to this chronology of Connecticut Civil Rights law, the law was first passed in 1917.
June 12, 2010, 12:28 pmstari_momak says:
The Census Bureau as of 2008 thinks that Connecticut has fewer blacks, fewer Hispanics, fewer Pacific Islanders, fewer Asians, and fewer Native Americans in proportion to population than does the US as a whole.
No wonder real estate values are so high there.
June 12, 2010, 4:44 pm