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Connecticut "Racial Ridicule" Ban Challenged in Federal Court

Added 12-02-21 08:21:01am EST - “Connecticut General Statutes ” - Reason.com


Posted By TheNewsCommenter: From Reason.com: “Connecticut "Racial Ridicule" Ban Challenged in Federal Court”. Below is an excerpt from the article.

The statute is facially unconstitutional, because it suppresses speech based on its content (and viewpoint), and because there's no First Amendment exception for speech that insults based on race or religion. As the Court has repeatedly held, racist and religiously bigoted speech is as constitutionally protected as speech that expresses other ideas. To quote Justice Alito's opinion in Matal v. Tam (2017) (with which the concurrence seemed to fully agree),

Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express "the thought that we hate."

Beauharnais v. Illinois (1952) did uphold a "group libel" statute that banned derogatory statements about racial and religious groups—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; and since then, the libel exception has been dramatically narrowed.

Now on its face, of course, the Connecticut statute only covers "advertisement[s]." And the statute was enacted in 1917, as "An Act concerning Discrimination at Places of Public Accommodation"; it really was aimed at "advertisement[s]" for businesses (though no its face it may also cover political advertisements), not at racist opinions generally.

But Connecticut prosecutors haven't been enforcing the law as it is written. I have found no prosecutions for advertisements that ridicule people based on race or religion. The two most-publicized recent incidents (see the UConn case and the Fairfield Warde High School case), for instance, involve nothing that could be labeled an advertisement.


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