Universities are occasionally derided for failing to protect free speech. But sometimes the state jumps in to ensure failure. Two University of Connecticut students were recently arrested for repeatedly shouting the n-word outside of student apartments. They allegedly violated a Connecticut statute according to which any person who “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 good news is that one can’t be imprisoned for more than a month for calling someone, say, a damned Episcopalian.
Perhaps the University of Connecticut, which had opened up an investigation under its “bias incident protocol,” would have found its way to punishing the offending students. But bias incident protocols exist in large part to deal with incidents that aren’t crimes or even violations of student codes of conduct. In such codes, state universities, which must answer to the First Amendment, are typically careful to prohibit only speech, such as harassment, narrowly defined, that is not constitutionally protected. The University of Connecticut, although it’s conduct code is a bit vague, has just such a relatively narrow understanding of prohibited speech. Given the character and repetition of the slur, maybe a case could have been made for treating the students’ speech as harassment or as “fighting words,” another class of speech that is not protected. It would have been a hard case to make. But the state of Connecticut saved the University the trouble by prohibiting ridicule and contempt directed at any religion, religious denomination, nationality, or color.
Of course, few will shed tears over the students who may well get off with a $50 fine. But the law is almost certainly unconstitutional. There is no hate speech, much less a ridiculing speech, exception to the First Amendment. It’s surprising that this statute, which has been around for a long while, has apparently never been challenged.
It probably should be challenged, lest other jurisdictions get the idea that they, too, can ignore the First Amendment. For example, I doubt that Massachusetts will pass the bill “regarding the use of offensive words” that a Democratic legislator has proposed. There is probably not much mainstream appetite for making the “b-word,” when used with certain intentions, including the intention to “annoy,” a punishable offense. But if Connecticut can do it, why not Massachusetts?
This kind of legislation should be viewed in light of another story that broke recently. In Wisconsin’s Madison school district, a security guard was fired for using the n-word. The guard, who is black, used the slur in the course of telling a student, also black, not to use it. The man got his job back after a public outcry, but his case is a perfect illustration of a point that many advocates of free speech make: Laws and policies designed to protect members of certain groups are often used against them.
That’s not the only reason to oppose Connecticut’s statute. But it’s a formidable one.