The Volokh Conspiracy - Racial Epithets:

Drudge reports:

A woman accused of using racial epithets while waiting for food at a Connecticut Taco Bell drive-through window was arrested Wednesday.

Jennifer Farrelly, 19, of East Windsor, has been charged with ridicule on account of race, creed or color and second-degree breach of peace. . . .

Face-to-face personal insults (racist or not) are generally unprotected by the First Amendment. They fit into the "fighting words" exception to free speech, on the theory that they lack constitutional value and tend to cause fights. Speech that isn't directed to a particular hearer is generally protected, even if it's an insult; but speech that is so directed, and is said face-to-face, where an imminet fight (or worse) is possible, is unprotected.

The relevant provision of the Connecticut breach of the peace statute, § 53a-181(a), has been narrowed by the Connecticut courts to cover only fighting words. (See State v. Szymkiewicz, 237 Conn. 613 (1996).) Farrelly thus might well be prosecuted under this statute.

On the other hand, the "ridicule on account of race" statute is unconstitutional, at least if it is this satute (the only one I could find that uses those words):

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.

Even if the statute applies here (despite its seeming limitation to "advertisement[s]," and even if it's interpreted to be limited to unprotected speech, such as fighting words, defamation, or the like, it still singles out particular viewpoints -- racist hostility as opposed to other hostility -- for punisment. R.A.V. v. City of St. Paul (1992) held that such viewpoint discrimination is generally unconstitutional even when the discrimination happens within a category of unprotected speech. R.A.V. struck down a ban on race-based fighting words; the logic of that case would equally apply here.

	[Eugene Volokh, February 3, 2006 at 2:15pm] Trackbacks Racial Epithets: Drudge reports: A woman accused of using racial epithets while waiting for food at a Connecticut Taco Bell drive-through window was arrested Wednesday. Jennifer Farrelly, 19, of East Windsor, has been charged with ridicule on account of race, creed or color and second-degree breach of peace. . . . Face-to-face personal insults (racist or not) are generally unprotected by the First Amendment. They fit into the "fighting words" exception to free speech, on the theory that they lack constitutional value and tend to cause fights. Speech that isn't directed to a particular hearer is generally protected, even if it's an insult; but speech that is so directed, and is said face-to-face, where an imminet fight (or worse) is possible, is unprotected. The relevant provision of the Connecticut breach of the peace statute, § 53a-181(a), has been narrowed by the Connecticut courts to cover only fighting words. (See State v. Szymkiewicz, 237 Conn. 613 (1996).) Farrelly thus might well be prosecuted under this statute. On the other hand, the "ridicule on account of race" statute is unconstitutional, at least if it is this satute (the only one I could find that uses those words): 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. Even if the statute applies here (despite its seeming limitation to "advertisement[s]," and even if it's interpreted to be limited to unprotected speech, such as fighting words, defamation, or the like, it still singles out particular viewpoints -- racist hostility as opposed to other hostility -- for punisment. R.A.V. v. City of St. Paul (1992) held that such viewpoint discrimination is generally unconstitutional even when the discrimination happens within a category of unprotected speech. R.A.V. struck down a ban on race-based fighting words; the logic of that case would equally apply here.