Two UConn students arrested for shouting racial slurs, violating a Connecticut “anti-ridicule” law

This piece in the New York Times reports that two University of Connecticut students were arrested, apparently by campus police, after shouting racial slurs outside a university dormitory. They were charged with violating a state law that prohibits ridiculing individuals based on “creed, religion, color, denomination, nationality or race” (see below)

Here’s the video, which doesn’t show shouting or screaming or taunting, but uttering slurs:

An excerpt from the NYT:

Two white students at the University of Connecticut were arrested by the campus police on Monday night, 10 days after they were captured on video repeatedly shouting a racist slur outside student apartments, the university said.

The students, Jarred Karal and Ryan Mucaj, both 21, were charged with ridicule on account of creed, religion, color, denomination, nationality or race. Their arrests came after the widely shared video drew outrage and calls by students for the administration to take action.

The misdemeanor carries a maximum penalty of 30 days in jail and a fine of up to $50, according to state law. The two were released on personal recognizance and are scheduled to appear in Rockville Superior Court on Oct. 30. Efforts to reach the students Monday and Tuesday were not successful, and it was unclear whether they had retained lawyers.

. . .The investigation by the UConn Police Department found that the men were playing a game in which they yelled vulgar words. As they walked through the parking lot, witnesses heard two of the men switch to shouting a racial epithet, the police said.

Mr. Mucaj later told a campus police officer that after a night of drinking he did not remember saying the slur, “even as a game,” affidavits released on Tuesday said. Mr. Karal said in a statement to the police that “I don’t believe that we had been shouting loud enough for other people to hear us,” according to the affidavits.

“It was not our intent to broadcast what was said to any one person, we were just being immature,” he said, according to the affidavits.

If they face jail time, then they were arrested for violating a state law, not just a campus speech or conduct code. And that law itself violates the First Amendment. Let’s be clear: shouting racial epithets is reprehensible (the “n word” was apparently used). These students should be the recipients of counterspeech and, if they’ve violated UConn’s code of conduct, disciplined.

Remember, though, that the University of Connecticut—a state school—must adhere to the First Amendment. And the students’ speech didn’t violate that amendment since it didn’t constitute personal harassment or defamation, nor had the intent of inciting immediate violence. The speech may have violated the campus code of conduct, as the paper reports:

On Tuesday, Ms. Reitz [a campus spokeswoman] said that she was not permitted by privacy laws to discuss individual cases, but that generally if the university finds a student violated the Code of Conduct, the person is given an opportunity to appeal. “If the finding is upheld, the student could be subject to discipline ranging from probation to suspension or dismissal,” she said.

I’m not sure about the ins and outs of this, but a campus speech code that prohibits speech like this, however reprehensible, is likely unconstitutional. I can see that repeated racial harassment can violate campus norms, but this was not repeated: it was a one-off. Here’s the part of the UConn campus speech code that apparently applies here (page 4):

Harming behavior, which includes, but is not limited to, the true threat of or actual physical assault or abuse and also includes harassment. For the purposes of The Student Code, bullying is considered a form of harassment.

Harassment is the severe or repeated use by one or more students of a written, verbal, or electronic expression, or a physical act or gesture, or any combination thereof, directed at another individual that has the effect of: causing physical or emotional harm to the individual or damage to the individual’s property; placing the individual in reasonable fear of harm to the individual and/or the individual’s property; or infringing on the rights of other University community members to fully participate in the programs, activities, and mission of the University.

The incident above doesn’t seem to violate even these standards, as it isn’t “repeated use” (unless saying the n-word twice is “repeated use”) and wasn’t directed at any individual. Students did claim that this utterance harmed them, but only when they heard it repeated by others or saw the video. And there can be no reasonable “fear of harm” to person or property, nor obstruction of others’ participation in University activities.

Perhaps the campus can find grounds to discipline or even expel the students, but the government has no right to arrest the students and send them to jail. “Ridicule on account of creed, religion, color, denomination, nationality or race” is not a crime. If it were, people could be sent to jail for making fun of religion. Such a “crime” reminds one of the blasphemy laws prevalent in many places, laws that are indefensible because of the difficulty of deciding what constitutes “ridicule.”

I just found a new article in the NYT—an op-ed by lawyer Steve Sanders—that agrees with my view of this issue (click below to read). I’m not sure which Steve Sanders wrote it, but it may be this one, a Professor of Law who teaches constitutional law at Indiana University.

Sanders says that there is indeed a law in Connecticut prohibiting ridicule:

Imagine if the cast members of “The Book of Mormon” could be arrested and prosecuted for ridiculing Mormons. Preposterous, you say?

The idea is not entirely fantastical. A law in Connecticut criminalizes anyone who “ridicules or holds up to contempt” a person or group because of “creed, religion, color, denomination, nationality or race.” Violators are guilty of a misdemeanor and face up to 30 days in jail and a $250 fine.

I can’t access the link, but such a law is clearly unconstitutional and should be challenged in federal court. Sanders goes on:

To be clear: No decent person approves of such use of the N-word. But no sensible person wants to live in a world in which authorities have free rein to lock people up for engaging in what government functionaries decide is inappropriate “ridicule.”

An important purpose of the First Amendment is to protect against such arbitrary use of government power. Indeed, the anti-ridicule statute, at least as applied in this situation, is unconstitutional, for three reasons.

You can read the reasons for yourself, but they boil down to claims that the law is overly vague, that similar campus speech codes and state laws have been struck down repeatedly for violating freedom of speech, and that a similar incident—the uttering of racist statements by the Ku Klux Klan in 1969—was deemed legal by the courts because it didn’t lead to “imminent violent action.”

Sanders is right in his analysis, and right in his conclusion:

In the face of an absurd statute like Connecticut’s anti-ridicule law, it is tempting to extol the value of satire, irreverence and cheek as part of our country’s robust free-speech traditions. But this is not the time for that. Racial, ethnic, sexual and religious slurs exact a social cost. They deprive members of the affected groups of their dignity and inhibit their participation in our democracy as equal citizens.

But it is possible to hold that thought in mind while keeping in mind another thought: that we do not want the police or prosecutors — or university administrators, who too often cave in to public pressure in such situations — wielding the power to decide what constitutes “ridicule” and when someone should be hauled up on charges for engaging in it.

The first paragraph is a bit unclear, because some satire and ridicule is useful not just now, but at any time: I’m specifically thinking of criticism of religion. Does the play “The Book of Mormon” really exact a social cost, or inhibit the participation of Mormons in our democracy? I think not.

But Sanders is correct in arguing that the students’ conduct, while odious, should not be illegal. As Christopher Hitchens, another free-speech absolutist, remarked, “Who will be the decider?” And, if you think about the nature of things that get opprobrium on today’s campuses, you’ll realize the gravity of that problem.

17 Comments

  1. GBJames
    Posted October 27, 2019 at 9:06 am | Permalink

    sub

  2. Historian
    Posted October 27, 2019 at 9:22 am | Permalink

    This is the link to the Connecticut law.

    https://www.lawserver.com/law/state/connecticut/ct-laws/connecticut_statutes_53-37

    • Randall Schenck
      Posted October 27, 2019 at 9:33 am | Permalink

      You would think Connecticut should know better than this.

  3. BJ
    Posted October 27, 2019 at 9:49 am | Permalink

    “You can read the reasons for yourself, but they boil down to claims that the law is overly vague, that similar campus speech codes and state laws have been struck down repeatedly for violating freedom of speech, and a similar incident—the uttering of racist statements by the Ku Klux Klan in 1969—was deemed legal by the courts because it didn’t lead to “imminent violent action.””

    The idea that this law was even passed is an affront to freedom of speech and the First Amendment. There should be no local laws against speech because no laws can go beyond what has been proscribed federally by the 1A (local noise ordinances and the like are different, as they don’t target any particular speech). What other reason is there to pass a law like this except for virtue-signalling by representatives?

    • Ken Kukec
      Posted October 27, 2019 at 10:50 am | Permalink

      According to the link to the Connecticut General Statutes in the NYT piece, the anti-ridicule law has been on the books since 1949. So if it was passed as a form of “virtue-signalling,” it wasn’t as we think of that term today.

      State legal codes can be like river banks where misshapen stones accrete over the years.

      • BJ
        Posted October 27, 2019 at 12:08 pm | Permalink

        No kidding! So, it must not have been enforced very much, right? Otherwise it surely would have been challenged by now. There’s no way it could get a pass in the courts, right?

        • Ken Kukec
          Posted October 27, 2019 at 12:52 pm | Permalink

          Yeah, statute books are chock full of anachronistic laws. Some states, for example, still carry anti-sodomy statutes on their books, even though such laws are flatly unenforceable under Lawrence v. Texas.

          That should be of particular concern to a young buck like you, Beej, since some of ’em prohibit almost anything but a quick and dutiful hump in the missionary position with the lights off for procreative purposes only. 🙂

          • BJ
            Posted October 27, 2019 at 1:33 pm | Permalink

            It’s likely that all sex I’ve had has broken some statute somewhere!

          • BJ
            Posted October 27, 2019 at 1:34 pm | Permalink

            By the way, I left my thoughts on Midsommar in one of your comment threads on the Andrew Sullivan article.

  4. Damien
    Posted October 27, 2019 at 10:07 am | Permalink

    Let me think…

    If I am of an easily identifiable race and I go in public and do something ridicule… Then, by association, I bring ridicule on my entire race, and must be condemned by that law.

    Donald, stay away from Connecticut.

  5. Ken Kukec
    Posted October 27, 2019 at 11:01 am | Permalink

    As Christopher Hitchens, another free-speech absolutist, remarked, “Who will be the decider?”

    I think the Hitch, who sometimes seemed to have the entire Western literary canon at his mental fingertips, would have been first to credit that notion to the Roman poet Juvenal — Quis custodiet ipsos custodes? (roughly translated as “Who will watch the watchmen?”)

    • Diana MacPherson
      Posted October 27, 2019 at 11:29 am | Permalink

      I was happy to hear the police in the new Watchmen series repeat this line in a ceremony.

    • rickflick
      Posted October 27, 2019 at 2:58 pm | Permalink

      “seemed to have the entire Western literary canon at his mental fingertips”

      A week ago I stumbled on an old Hitch debate where he went on a brilliant rant for 15 minutes – can’t remember now what topic exactly – with dozens of historical and literary allusions, without any notes. Once in an interview he confessed to not having a great scholarly mind, but, he said he had a very good memory. Yes, he did.

  6. Ken Kukec
    Posted October 27, 2019 at 11:50 am | Permalink

    … the University of Connecticut—a state school—must adhere to the First Amendment. And the students’ speech didn’t violate that amendment since it didn’t constitute personal harassment or defamation, nor had the intent of inciting immediate violence.

    It bears noting that “defamation” cannot be punished as a crime under the First Amendment. (Indeed, we may eventually find out in the Gibson Bakery v. Oberlin College case the extent to which the First Amendment permits punitive damages for defamation in civil cases.)

    The closest this nation has ever come to criminalizing defamation were a couple of sad experiments with “seditious libel” laws outlawing false, scurrilous against the government — the first during the administration of John Adams in 1798, the second in 1917, during World War One. Neither provides a particularly proud chapter in US history.

    Such laws are best left to monarchies (whence they arose as prohibitions on lèse-majesté) rather than in a republic, such as the United States, where sovereignty resides in the people.

    • Filippo
      Posted October 28, 2019 at 4:25 pm | Permalink

      I got this email from The Chronicle of Higher Education, with the subject line, “Afternoon Update: 2 Bottles of Wine Tore Oberlin and Its Town Apart”

      http://www.chronicle.com/interactives/20191025-Oberlin?utm_source=pm&utm_medium=en&cid=pm&source=ams&sourceId=2357533

      I can’t read it because it’s a “premium” article and I don’t have a subscription.

      Fatuous, piffle subject line. First, it’s the theft of the wine. Second it’s trying to spin as racism the business identifying the theft for what it is and pressing charges. Third it’s the college encouraging student protest of, and boycotting, the business.

      Instead of “Two bottles of wine” it should be “Wokeness.”

  7. Posted October 27, 2019 at 2:29 pm | Permalink

    Why would the NAACP would post the shouting so you could hear it?  They were only trying to identify possible witnesses!

    http://www.newsweek.com/uconn-naacp-racist-video-administration-act-1466701

    http://www.insidehighered.com/news/2019/10/25/uconn-satisfies-no-one-punishments-students-who-used-racial-slurs

  8. Jose
    Posted October 27, 2019 at 4:11 pm | Permalink

    Sorry, but I am a bit confused at what happened, so let’s see if someone can clarify form me.

    I don’t understand what’s happening in the video. I just see three people walking on a parking lot, and hear some words coming it seems from the people recordind, but I can’t understand them.

    Also, who are allegedly the ofenders, the people filmed or the ones filming? who posted the video? Because if it was the offender, it could be construed as a “repetition”, couldn’t it?

    Thanks.


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