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.
Laws that prohibit offensive speech are inevitably administered by power-hungry elites obsessed with forcing their own ideologies and prejudices on the masses. Beware the authoritarian oversight of a government that claims to be looking out for you.
Just another step on the road to European style “hate speech” laws. And leftists try to tell us with a straight face that support tolerance and free speech. What a joke.
Wouldn’t this statute make Critical Race Theory crime? CRT holds that all white people are racist.
Hopefully, the family has the means of appealing this because, having made the arrest and focused a whole lot of probably unwanted attention on the locality, the local government is not going to let this go.
“’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 that standard, every member of every school board in Connecticut that has approved the teaching of Critical Race Theory should face the same charges.
Wouldn’t this make any comedian a law breaker in CT?
Good point, arnold. “…holds up to contempt…” is the entire foundation of CRT. It’s based on hate and racial divisiveness and I find it terribly frightening that this has gained as much acceptance as it has already. Will it become America’s version of the Nuremberg Laws or the Laws in Defense of Race of 1938 in Italy? I do not believe it is hyperbole to say so, although it could be actionable in certain quarters.
I have previously expressed my views on hate crime legislation and the enforceability of censorship laws. I expect that the Connecticut statute will be held unconstitutional on its face.
If you can be arrested for making racist remarks, then nearly all academics will be arrested for racist comments about whites and bigoted comments about Trump voters. Everyone who made Critical Race Theory curriculum, taught the curriculum, and repeated the rhetoric of the curriculum, would be arrested. Most comics would be arrested. Most Democrats would be arrested. No mainstream news anchor would be outside of prison.
The students was ignorant, hurtful, and wrong to post anything racist, but this is a country of Free Speech.
If we make derogatory comments criminal, then the government will inevitably define which people can be offended, and which cannot, granting special rights to only one group of people.
Be ethical and abide by the Golden Rule, but keep the criminal code out of it.
Karen says: “If we make derogatory comments criminal, then the government will inevitably define which people can be offended, and which cannot, granting special rights to only one group of people.”
So true, Karen. And therein lies the rub. From all that I’ve seen thus far, it seems the people who are allowed to be offended and held up to contempt are Caucasians. And what words or acts are criminally “offensive?” The fact that this is even alive and growing ought to scare the living daylights out of any rational, liberty-loving American.
Today the media reports that some Black Lives Matter activists are denigrating Israel and the Jews in favor of Hamas.
Many of us pointed out the anti-semitism inherent in the BLM movement. BLM openly supports a terrorist organization killing Jews because they won’t accept a Jewish country’s right to exist, and it’s crickets at the legacy media.
This is worse than the Westboro Baptist Church.
They carried signs reading “Thank God for 9/11”, and Fred Phelps, in his 9/11 sermon, expressly said that God laughed and mocked as He sent each 9/11 victim to Hell.
But they did not stand in solidarity with Al Qaeda.
Yup.
Precisely. And the government, social media titans, and MSM obviously think that’s just dandy.
Ever wonder why the Founding Fathers put verbiage to keep and bear arms right after they wrote we have a right to an opinion?
Serious question: Is slandering Trump supporters as “magats” hate speech?
yes, they’re detestable.
You just agreed that saying they are detestable is hate speech.
i hate them