We have been discussed two areas of concern for free speech in the United States: the increased monitoring of social media speech as grounds of discipline and the push to criminalize speech. Both of those concerns seem to have coalesced in the arrest of a Connecticut high school student accused of posting racist comments about a classmate. The case could present an important court test for this country in resisting the criminalization of speech that we have seen in Europe. Notably, we recently discussed a major ruling out of the Fourth Circuit to overturn the conviction of a man for using a racial slur in a shoe store.
According to an AP story, the 16-year-old student at Fairfield Warde High School allegedly took a photo of a Black classmate and posted it on Snapchat on May 7 with a racist caption. The arrest appears to have been made under a state hate crime law that has long been criticized by some of us in the free speech community as dangerously vague. Here is what the provision states:
“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 law is similar to the type of vague speech codes that we have addressed on campuses but this is an actual criminal provision under state law. It purportedly allows for the prosecution of speech that is deemed as “ridicule” or holding someone “up to contempt.” It is precisely the type of speech crime that I have written about for years as eviscerating free speech in Europe.
I have written for years on the effort of European countries to expand their crackdown on free speech. The criminalization of speech has expanded in countries like France, Germany, and England though hate speech laws and speech regulation. Most concerning is the call for European style speech limits in this country.
Free speech demands bright lines. One of the greatest threats to free speech is the chilling effect caused by ambiguous or vague standards like the one contained in this statute. Every case of an obnoxious or repugnant individual invites us to make an exception or adopt some nuanced excuse for not following our principles. The temptation is particularly great in cases like this one when defending free speech can be confused with supporting bigotry.
Nevertheless, in this case, the Greater Bridgeport NAACP called for criminal charges for the Snapchat post. Rev. D. Stanley Lord, president of the NAACP chapter, declared “It was shocking. We have to send a strong message that behavior like this won’t be tolerated in any school system.”
Few would disagree with Rev. Lord on the need to condemn any such racist slurs. However, free speech often compels us to defend those who we condemn for their views or language. It is never popular to fight for the free speech rights of individuals using such vile language. It is never popular to fight for the free speech rights of individuals like Bartow. Indeed, after being quoted in a Washington Post article in favor of the Fourth Circuit ruling, I received emails denouncing me as a de facto racist, including one from an attorney condemning me for “defending bigotry under the guise of constitutional freedom.” It is a common attack on free speech advocates to claim that we defend bigotry as opposed to free speech in such cases. The “guise of constitutional freedom” is in fact the First Amendment’s protection of unpopular speech. Indeed, Justice Thurgood Marshall famously declared in Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972), that the “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”
The Connecticut arrest comes as the U.S. Supreme Court weighs the right of schools to punish students for out-of-school speech in Mahanoy Area School District v. B.L. We have seen a steady erosion of the free speech rights of students in the last decade. The Supreme Court accelerated that trend in its Morse decision. Former JDHS Principal Deb Morse suspended Frederick in 2002 during the Olympic Torch Relay for holding up a 14-foot banner across from the high school that read “Bong Hits 4 Jesus.” The case ultimately led to the Supreme Court which ruled in Morse v. Frederick ruling in 2007 for the Board — a decision that I strongly disagreed with and one that has encouraged over-reaching by school officials into protected areas.
This case adds the specter of criminal prosecution to this trend. It is all-too-familiar. We have previously discussed the alarming rollback on free speech rights in the West, (here and here and here and here and here and here and here) and here and here and here and here and here and here and here and here and here and here). There are encroachments appearing in the United States, particularly on college campuses. Notably, the media celebrated the speech of French President Emmanuel Macron before Congress where he called on the United States to follow the model of Europe on hate speech.
We can all condemn racist speech without curtailing free speech our society. Otherwise, we will find ourselves on the same slippery slope as Europe toward criminal speech codes and censored speech.
Civil Rights violations. SUE SUE SUE!
This is exactly the type of speech that needs defending despite personal views. I am not hearing violence called for nor anything else. Not sure if this is bullying or they have some sort of beef. Calling someone names may not be nice and truly hateful, but locking them up and maybe ruining their lives over a comment? If I have this right, this is a young man. If you lock him up, then you had better be prepared to lock lots of people up for comments. Is that what one really wants? What happens when the shoe goes on the other foot and a white kid is called names by a black one? Will the NAACP defend that as hate speech and insist that kid is locked up too? I certainly understand the hateful nature of the comment, but this is not a hill to die on for arrest. There is a much larger issue at stake than smoothing over ones feelings.
If you do not defend the speech you hate, then you cannot defend the speech you like.
To be sure, the NAACP is an antithetical, anti-Constitutional, anti-Caucasian, anti-American, racist organization which promotes covetousness, bearing false witness and stealing.
The NAACP is the direct and mortal enemy of America.
How racist of you…..
“Prince” Hairy will be pleased.
As will the Duchess of Compton!
The freedom of speech is not qualified by the Constitution and is, therefore, absolute.
The Founding Fathers provided Americans the freedom to insult, not only their farrier, mayor and barber, but their king with impunity.
Caterwauling “untouchable” Africans do not decree and dictate from their fancifully pompous position of righteous indignation.
Congress cannot legislate love, hate, acceptance, rejection, marriage, divorce, assembly, segregation, unification or secession.
“Hate crime” and “love crime” laws are not only irrational, hysterical and incoherent, they are unconstitutional.
Impolite, immoral and perverse behavior must be corrected through social ostracization; fighting fire with fire.
“Crazy Abe” Lincoln imposed tyranny, nullified the Constitution and let the genie out of the bottle regarding the illicit and arbitrary denial of constitutional rights, freedoms, privileges and immunities.
Some Great American is going to have to find a way to put that Genie back in.
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1st Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Allegations or actual diversitist intent and expression?
The Founders knew what they were doing when they adopted the First Amendment. Black activists don’t give a flying flip about free speech – just their own.
The proper response to the attorney who critiqued you is that s/he is supporting totalitarianism under the guise of opposing bigotry.
And to that CT ACLU person whom you quote, that if such behavior/speech is unacceptable in schools it should be a matter of school discipline, not the CJ system.
A little clarity would go a long way, but is very hard to find, anywhere, these benighted days.
It’s time to take up arms and defend yourself. A tyrannical and totalitarian government is not a legitimate government per the United States Constitution and must be met head-on with the the same force. They kidnapped this kid and even person has the right to defend themselves against kidnappers, wither they are wearing a badge or not.
The more I see of modern politics the more I am impressed by our Founders.
They protected us, or at least tried to protect us from this tyranny of the tolerant.
Of course the ACLU is nowhere to be found on this.
Professor Turley,
Thank you for having the courage to stand up and fight on this.
Too many who have the intelligence and credentials to do it lack the strength of character to speak when they know they should.
Thank you.
“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.”
Under this law, every rapper in Connecticut could be given a life sentence, but the law will only apply to non-Democrats. DISGRACEFUL HYPOCRITES!
Diogenes: “Under this law, every rapper in Connecticut could be given a life sentence, but the law will only apply to non-Democrats. DISGRACEFUL HYPOCRITES!”
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Yes, that is one of its many problems.
It is designed look virtuous while being used to punish in an arbitrary and capricious and unpredictable manner.
All ‘hate crime’ legislation should be struck down.
Odd, is it not, that if this same kid had broken windows during a BLM ‘peaceful protest’ [riot], nothing would be done to him.
Question for the Left…..what is “Free Speech”?
If I drag an old Coca Cola crate to the middle of Town Square…take a step up onto it….then begin to speak anything that offends anyone….am I violating your concept of what in your view is “Free Speech” ?
If so….what if it is you that is perched aloft on that crate….and I am offended by what you say….are you then guilty of violating your Right to speak freely?
I am offended by much of what I read at this blog….usually by you on the Left….so who is wrong here?
Is it you for offending me…..or me for being offended?
If it is me….then why not you if I offend you?
Do you see the conundrum here?
Welcome to Life Scooter….there is lots to offend you in Life….how you cope with that is up to you.
If you handle it badly….that is on you….not the rest of all of the Peoples of the World.
If you stood on an old Coca Cola crate there would be a good chance it’s rotten now and you’d fall through, injuring your ankle. That would not be good. Please don’t do that.
Keep fighting the good fight
Arrest Mark Twain
aka Samuel Clemons.
eb 2020
I loved the “Bong Hits 4 Jesus” crew…, in fact that incident led into being a scene I wrote in a screenplay that became my first optioned screenplay. A little jaunt entitled PERVINGTONS. Never produced but the rights got tied up for 3 yrs anyway by a relatively big producer who’d run the horror and indie branch of a production company in the Weinstein Miramax empire.
And Turley, in regard to this: “Indeed, after being quoted in a Washington Post article in favor of the Fourth Circuit ruling, I received emails denouncing me as a de facto racist, including one from an attorney condemning me for “defending bigotry under the guise of constitutional freedom.””…
You are defending bigotry under the guise of constitutional freedom. Own it, bruh. In fact, it’s your M.O. for this blog and the media empire you work for. Don’t hate yourself for being who you are.
The fact this CT. case emanated from Warde High School is, like, the least surprising thing in the world to me having lived in Fairfield for a bit.
eb 12358
Bigotry is protected free speech. Turley’s defending free speech. Do you need flash cards here?
Thanks for summing up my 3rd paragraph and tuning it into…, wait for it…, a flashcard.
eb 2008
“Thanks for summing up my 3rd paragraph and tuning it into…, wait for it…, a flashcard.
eb 2008”
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You needed the flash card but not in the way you think. To defend the principle is not the same as defending the action. Admittedly it takes a disciplined mind to see the distinction and Neanderthals have problems with that.
you so dumb.
mespo – does JT support the speech rights of Holocaust deniers/doubters?
I can’t speak for him but in this case, I have no doubt that he would support their right to be hateful and wrong.
If you’re ever in any doubt about speech, imagine Trump being in full control and imposing the same restrictions on speech about Russia or his hand size.
bill:
I don’t know but if he’s being consistent he supports a wide open stage for speech allowing the listener to discern the difference between substance and poppycock. Behind every censor’s cry of “shut up” lies an implicit “I know best.”
And yet, there has been plenty of vile hate speech coming from groups like Antifa and Black Lives Matter, who never seem to be held accountable for their incitement. The criminalization of speech is just another liberal tool with which to grab power and silence the opposition.
Exactly. Are arrests being made when any racial, ethnic, sexually-related slur appears? Sounds like it’s time for a test case in that direction. A cursory glance at Twitter or Facebook suggests there will be a plethora of examples from which to choose.
And we do know where that leads. Anyone familiar with the term “delation” as used in Italy during the Fascist era, better known as “denunciation?” I can certainly see that coming to America soon. Sooner than we expect. And where does it stop? Once speech is criminalized for one thing, it will be easy to follow along with others such as criticizing the Democrat party and the president. Why not? Step out on that slippery slope and the slide into the abyss begins.
From the article:
“Besides, the orchestrated institutional measures to maintain control over the country were facilitated thanks to denunciatory practices made by common citizens who betrayed one another to the police.”
And then there’s this (the sentence on the 4th line of the graf beginning with “usually…” says it all about the dangers of criminalizing speech and creating a surveillance society which we already have through social media):
“Institutional top–down surveillance was greatly facilitated by ordinary citizens who denounced Jews thanks also to a harsh campaign of propaganda in the press which, however, is not enough to explain why Italians informed the State about Jews who violated the law. Even before racial laws came into force, in cities like Trieste, where the Jewish community was vast, the political police received several anonymous denunciations against Jews (Franzinelli 2001, 142). Sometimes police officers only needed to put together different pieces of information to achieve a comprehensive overview of Jewish families and their Italian non–Jewish friends who were considered the regime’s traitors. Usually the root causes of denunciations were ideological hate, competition in business or mere personal dislike (2001, 2). Between 1940 and 1943 nearly 400 Italian Jews and 6,000 foreign Jews who lived in Italy were either confined in internment camps or moved to locations where they could be easily surveilled. The situation degenerated after 1943 when denunciations and surveillance could lead to persecution and eventually death.”
But read the entire article. It’s no wonder the Gestapo was modeled after OVRA. So again, I ask, where does it stop?
https://brewminate.com/surveillance-under-mussolinis-regime/
And I only post thoughts and in this case a very informative piece on Mussolini’s surveillance state. I will not debate unknown, unseen people in cyberspace.
We need to go further. We need laws to put those who seek curb free speech in jail for a very long time. Not the police, but the prosecutors and politicians.
Maybe for politicians who support infringing on individual rights a stronger penalty than life in jail is required.
Such a bad charging decision. This was hardly Constitutionally unprotected inciting and hate speech is still free speech. The DA should know better. Even the Dim judges in Occupied Connecticut have heard about the First Amendment.
In the article, an ACLU lawyer harkens back to the old ACLU:
“Having racist ideas or sharing racist ideas is something that we actually protect,” said Emerson Sykes, a senior staff attorney with the ACLU’s national chapter. “Even if that viewpoint is offensive, even if it’s deplorable, we don’t want the government making the call about what’s OK to say and think and what is not. But we have limitations on that right.”
Amen, brother.
THOUGHT IS DISCRIMINATION
__________________________
Freedom of speech is not possible without freedom of thought.
Freedom of thought is freedom of discrimination.
The denial of freedom of discrimination is the denial of freedom of thought.
The denial of freedom of thought, is the denial of freedom itself.
So Henny Youngman can be arrested in Connecticut for saying “Take my wife. Please.” ??
No, Turley quoted the statute which refers to “creed, religion, color, denomination, nationality or race”, not sex or gender.
Solid point, Creekan!
eb 1999
Unless his wife is black or trans.
Trans/homo, trans/neo, or perhaps trans/social, not necessarily in that order. But no White Blacks.