Friday, September 30, 2022

The Difference Between a Bias Crime And Protected Speech

A few years ago a couple of drunk college students were making racist comments as they walked across a parking lot at UConn, they were punished by the college, they appealed and won.

There is only  a minor difference between a bias crime and the First Amendment.

Fighting Words: The Battle Between Free Speech Protections and Connecticut Law
Connecticut Inside Investigator (CII)
By Marc E. Fitch
September 25, 2022

In August of 2022, a 14-year-old Black football player from Enfield High School was going door to door in town selling raffle tickets to support his team. When he ventured onto the property of one home in the largely white town, a woman began screaming at him to get off her property and her son opened a window, calling the boy a racial slur and reportedly threatening to shoot him.

The incident was investigated by police who confirmed the racial slur was used but were unable to confirm the threat of violence. Over the following days, the story blew up in both the town and across Connecticut media, sparking protest rallies, condemnation by local government officials and a community conversation about diversity and inclusion.

The police were unable to bring charges regarding the threat of violence because there was not enough evidence. The use of a racial slur against the teenager, however, was not in dispute. During the community meeting, Enfield Police Chief Alaric Fox reportedly told the community that use of a racial slur, while ugly, was not against the law.

You might ask, how can that not be a bias crime?

There is a murky line between “free speech” and bias crime.

Most of Connecticut’s laws regarding bigotry and bias crimes are tied to actual violent acts — or at least the credible threat of violent acts through intimidation and harassment — that cause damage to either one’s person or their physical property.

But there is a law on Connecticut’s books that makes “ridicule on account of creed, religion, color, denomination, nationality or race” a Class D misdemeanor.

According to CGS 53-37, “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.”

And that is where the problem begins!

When is the line crossed between protected speech and ridiculing? One time when we were at a LGBTQ marriage rally a counter protester was yelling at us that we’re damned to hell and followed us a little way. 

Now when did it turn from protected speech and a bias crime?

  1. When they said it, 
  2. When they took steps to follow us, or 
  3. When they took twenty steps or more following us?

Um… I don’t know and really only a court can determine when it is.

But that is not always the case, a bias crime also can involve threats.

“One of the things that many students and many people are not aware of is that the First Amendment protects hate speech, and there have been a number of cases where it’s been upheld that people do have the right to use hate language, whether it’s the n-word or antisemitic statements or even to make fun of somebody, not just for racial reasons but for any reason,” Harris [A professor of journalism at Southern Connecticut State University who teaches a class on freedom of speech and has studied the use of racial slurs throughout history.] said.

The article then goes on to talk about the UConn case.

Arguing on behalf of one of the students in his criminal case, attorney and free speech advocate Mario Cerame wrote in his brief that 53-37 was unconstitutional because it regulated the content of speech, rather than criminalizing “how or when some speech is made,” and that the language of the statute is “facially vague” with an “unascertainable standard.”

Perhaps sensing that 53-37 wasn’t right legal vehicle for prosecuting the students, prosecutors dropped the charges under Connecticut’s ridicule law and instead moved forward with second degree breach of peace and disorderly conduct.

I have worked with a number of lawyers including those from the Commission on Human Rights and Opportunities and one thing I picked up listening to them is that a lawyer gives themselves wiggle room, they never say yes or no, instead they say “It is most likely…” or “In my opinion…” because what it boils down to is what a judge and jury decide.

The federal court has requested the Connecticut Supreme Court define the word “advertisement” in the statute to move forward and is awaiting that opinion, but Harris says that’s not the only term in the statute that lacks definition.

“What is considered ridicule?” Harris asked. “Certainly, you can ridicule someone racially without using the n-word and I think when this statute was first created, they were covering a broad range of different things.”

Legal things get very tricky when it comes to definitions (Notice that in the Connecticut statues on discrimination against us nowhere is the word “Transgender” used and that is because there is no fixed definition of the word, it is a moving target. Does it include crossdressers? Does it include drag queens? Does it include non-ops or just post-ops?)

So the bottom line. If you are being harassed ask them “Are you threatening me?” if they are dumb enough to answer “yes” you got them for a bias crime.

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