Legal Commentary

Connecticut ?Racial Ridicule? Statute

By Eugene Volokh

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 convictions since 1995. 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.

Full post as published by The Volokh Conspiracy on June 07, 2010 (boomark / email).