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Two students at the University of Connecticut were arrested Monday by the University of Connecticut Police Department for saying the n-word loudly enough for others to hear. The incident, captured on a now-viral video, sparked protests at the university and criminal charges under a rarely-used, unconstitutional state law prohibiting “ridicule.” 

The Hartford Courant :

Two white UConn students have been arrested by campus police for repeatedly shouting a racial slur outside students’ apartments earlier this month.

The incident was captured on a now-viral video that has led to pointed conversations about racial inclusion on campus and sparked a rally Monday afternoon during which hundreds of students and the campus NAACP demanding action from top school officials.

Jarred Karal, of Plainville, and Ryan Mucaj, of Granby, both 21 years old, were arrested by the UConn Police Department and charged with ridicule on account of creed, religion, color, denomination, nationality or race, university spokeswoman Stephanie Reitz said Monday night.

The Daily Campus, UConn’s student newspaper, , which read, in part:

On 10/11/2019, the UConn Police Department was made aware of a video posted to social media of three males walking through the parking lot of the Charter Oak Apartment complex saying a racial epithet loud enough to be heard by two individuals in the apartment complex. . . . The investigation showed that the males walked back through the apartment complex after leaving a local business and played a game in which they yelled vulgar words [the Courant that they were saying “penis”]. As they walked through the parking lot, [the students] switched to saying a racial epithet that was heard by witnesses.

The under which the students are charged reads, in full:

Sec. 53-37. 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.

The Connecticut statute is a relic and intended to address advertisements for businesses, not every use of derogatory language. There are scattered references to charges under the statute in and legal databases, but no substantive analysis of the statute’s constitutional viability has been undertaken by any court, much less any appellate court. 

Why is it rarely enforced? Because it is plainly unconstitutional. The use of racially-derogatory language — without more — is protected by the First Amendment. 

Even if you find this speech undeserving of sympathy, empowering authorities to investigate and penalize racially-offensive commentary will abused.

Connecticut’s statute is — if it applies to more than mere “advertisements,” as its plain language indicates — an example of a criminal group libel law, similar to that upheld by the Supreme Court in Beauharnais v. Illinois (1952). Although Beauharnais has never been expressly overruled, the decision — if the Court were given an opportunity to revisit it — would stand today. 

Over the decades since Beauharnais was handed down, the Supreme Court has steadily chipped away at its twin underpinnings. 

First, the Court has substantially circumscribed libel law, requiring in New York Times Co. v. Sullivan (1964) that the libel exception to the First Amendment be limited to speech “of and concerning” a particular people, or a small group of identifiable people. Broad statements about classes or characteristics would not fall within the First Amendment’s libel exception, even if they were provably-false statements of fact.

Second, the Supreme Court has been clear that there is no categorical exception for hateful, hurtful, or offensive language. Most recently, the Supreme Court unanimously rejected, in Matal v. Tam (2017), the notion that there is a “hate speech” exception to the First Amendment. Similarly, in Snyder v. Phelps (2011), the Court rejected the argument that states could impose civil liability for hurtful insults on matters of public concern.

As a result, courts and legal scholars have long concluded that Beauharnais is no longer good law. The U.S. Court of Appeals for the Seventh Circuit, for example, in 1985 that “cases such as New York Times v. Sullivan [have] so washed away the foundations of Beauharnais that it [can] not be considered authoritative.” Without Beauharnais, the few group libel statutes that linger on the books — including Connecticut’s — are unconstitutional. 

Authorities can, as a matter of course, penalize conduct, including conduct motivated by racial animus. For example, the Connecticut statutes following Section 53-37 criminalize conduct intended to cause deprivation of civil rights through the use of or . 

There is, however, no conduct involved in this isolated incident. However offensive their language, the students did not direct it at anyone in particular or take physical action. If “ridicule” on the basis of a wide array of classes is alone enough to sustain fines, arrest, and incarceration, a significant range of speech, commentary, and artistic expression could be criminalized at the discretion of police and prosecutors. 

Even if you find this speech undeserving of sympathy, empowering authorities to investigate and penalize racially-offensive commentary will abused — indeed, a number of the rare charges under this statute have been for — and we should be most vigilant for constitutional freedoms when the outcome may be carceral.

(And, make no mistake, other classes of people will want similar protection. While it is unlikely that this statute’s criminalization of ridicule on the basis of “creed” reaches political views, conservatives in Connecticut are for legal protection based on “political ideology” under the guise of advancing freedom of expression.)

In a , University of Connecticut President Thomas C. Katsouleas praised the arrests:

It is supportive of our core values to pursue accountability, through due process, for an egregious assault on our community that has caused considerable harm . . . I’m grateful for the university’s collective effort in responding to this incident, especially the hard work of the UConn Police Department, which has been investigating the case since it was reported.

Katsouleas is, in a sense, right: If the students decide to fight the charge, the process is the punishment. At best, prosecutors may ultimately decline to pursue the charge, but university police — after investigating for eleven days and identifying the students — purposefully chose to enforce a law that any reasonable officer should know is unconstitutional.

Public universities, let alone their police officers, should not be pursuing or praising criminal charges under clearly unconstitutional statutes. Doing so will only expose the university — including its leaders and police officers — to legal liability, while doing little (if anything) to remedy social ills identified by students and society at large.

Update (Oct. 23, 2019): Today, FIREsent a letter to the University of Connecticut's president and chief of police: