Reader John sent me this AP article that appeared in The Indiana Lawyer about a Connecticut student arrested for publishing racist insults. That is of course a reprehensible act, but not an illegal one. The case shows two things. First, free speech protects the most odious speech, though this is increasingly being questioned. Further, Connecticut has in effect a blasphemy law that prohibits speech that mocks or denigrates many things, including religion. Click on the screenshot below to read.
The emphases are mine:
A 16-year-old student in a classroom at Fairfield Warde High School allegedly took a photo of a Black classmate and posted it on Snapchat on May 7 with a caption that included a racial slur and racist comments. The teen who made the post is white, according to the Black student’s mother.
Police in Fairfield, Connecticut, arrested the student on a state hate crime charge of ridicule on account of creed, religion, color, denomination, nationality or race. The misdemeanor dating back to 1917 has been called an unconstitutional infringement on free speech rights by the American Civil Liberties Union of Connecticut and some law school professors.
Police did not identify the student who was arrested because of juvenile offender laws. The student also was charged with breach of peace.
While it is common for students to be disciplined by school officials for such comments, police and civil rights advocates said it is unusual for students to be arrested for what they say on social media if it does not involve threats, incitement or a pattern of harassment.
Note all the categories for which “hate speech” is prohibited. In effect, Connecticut has a blasphemy law. That law is unconstitutional and, if it’s appealed, will be overturned.
In the meantime, the student has been expelled from school. As one might predict, the American Civil Liberties Union is taking a mixed stand on this, despite the declaration above that the Connecticut ACLU says that the law is unconstitutional.
While it is common for students to be disciplined by school officials for such comments, police and civil rights advocates said it is unusual for students to be arrested for what they say on social media if it does not involve threats, incitement or a pattern of harassment.
“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.”
Sykes, however, said he believed school officials would be justified in disciplining the student because the Snapchat post interfered with the Black student’s right to access education.
This is what confuses me. The school is an organ of government. The First Amendment prohibits the government from punishing someone because of their speech, unless that falls into areas like subverting the workplace climate, defamation, false advertising, immediate and predictable incitement of violence, and so on. This case doesn’t seem to fall into any of those categories. So why does the ACLU say the law is unconstitutional but the government (the school) still has a right to punish the student.
A single Snapchat post doesn’t seem to rise to the level that would warrant government punishment. A school disciplining a student because of one private social media post does not represent “a climate of harassment.” Nor would it be if the post concerned religion or any of the other categories.
But if the harassment continued, either by others or by the bigoted individual, that would be a discipline-able offense. But we have real lawyers on this site (I just play one on television), so counselors should weigh in.
And the legal implications:
The racist posting comes as the U.S. Supreme Court is weighing whether public schools can discipline students for things they say off campus on social media. The case involves a Pennsylvania high school freshman’s swear-filled rant on Snapchat, posted while she was at a convenience store, over being kept on the junior varsity cheerleading squad for another year. She was suspended from the team for a year.
The court previously, in a landmark ruling in the Vietnam era, declared that students don’t shed their right to free speech when they come to school. It also held that schools retained the authority to restrict speech that would disrupt the school environment.
In my view, the single Snapchat rant, which wasn’t made in school, doesn’t “disrupt the school environment.” Were this the judgment, then anything that a student says on private media or in private speech could be said to disrupt the school environment. The bigoted student should certainly be talked to and made aware of the odious nature of what he said, but expulsion goes beyond that. And, if he does it again, well, that’s a different situation.
More:
Connecticut’s hate crime law on ridiculing has been filed at least 40 times since 2012 and has resulted in about 10 convictions, according to state court records. Critics say it appears to be one of only a few such state laws in the country. [JAC: and they should all be eliminated].
A bill that would have repealed the law died last year when the state Legislature ended its session early because of the coronavirus pandemic. The bill was prompted by the arrests of two University of Connecticut students in 2019 on the ridicule charge for uttering a racial slur several times while walking in the parking lot of a dorm. The students entered a probation program that is expected to result in the charges being erased.
If this were possible, and I lived in Connecticut, I would insult myself by posting that “Jerry Coyne is a big-nosed, money-grubbing kike” and see what happens. Or I’d get some other brave soul to do it. Hate speech is not illegal speech, as odious as it is, and in this case it seems pretty odious. But the First Amendment has decreed that such speech is, in general, protected. If you disagree, consider that, according to the Connecticut law, it’s also illegal to ridicule someone because of their religion or creed. That would make Christopher Hitchens a multiple felon! Remember his obituary of Jerry Falwell? Or read God is Not Great.
I continue to await a coherent definition of “hate speech”.
“If this were possible, and I lived in Connecticut, I would insult myself …”
This – in general, not specifically PCC(E) – is a brilliant idea. Is there a “National Insult Yourself Day”? My prediction is that it will naturally coincide with “National No Scotsman Fallacy Day”. Could even insult oneself on their Tw17736 profile.
Typo : “No _True_ Scotsman Fallacy Day”
You just saved me the cost of mailing you a newspaper.
“That is of course a reprehensible cat, but not an illegal one.”
The cat who posted the insults is indeed reprehensible, but his feline companion had nothing to do with it. Looks like a typo; I think you meant “reprehensible act”!
That’s it! Figuring out what a typo was meant to be is usually pretty easy but this one didn’t come to me.
There are NO illegal cats, only undocumented ones !
Cats don’t need no stinkin’ documents!
Yes, I’ll fix it.
I’ll be shocked if this stands up in court.
The student will win but the damage will have been done: he will have spent time in jail, his family will have spent money on an expensive court case, he will have been out (expelled) from school for months, and then on top of it state funds allocated for education will end up being used to pay off a completely unnecessary civil suit, plus their own lawyers’ fees.
Why is that the school’s purview or responsibility? If the students says or presents such bigoted views in school, then they should absolutely talk to him for disruptive behavior. If they want to get more academic, they can talk to him about how the government’s mandatory school attendance creates a narrow exception to some 1st amendment rights, so that he can’t necessarily say in school the stuff the law would protect him in saying outside of school. But beyond that, they aren’t our social conscience. They aren’t our police. If some student voices unpopular opinions outside of the school setting, it’s not (IMO) their job to interfere.
I’d make an exception if the parents or student reach out to school counseling and social services for assistance. In that case, give it. But I suspect that in most cases, if a kid is bigoted, it’s likely he or she is getting it from the parents, and those parents would likely object to anyone “correcting” their kid’s opinions on race, culture, etc.
Yes, I pondered this issue, and I see your point. I’m still a bit undecided about what, if anything the school should convey to the person.
As they say, the best response to free hate speech is more free speech. The student who was the object of the racial slur and his parents can use their free speech right to DOX the offending student and his family, whether it is getting like minded people to stand outside the racist student’s parents home with signs saying racist honky white trash lives here, or, in the age of internet, doxing the family to the extent that they are forced to move.
This would remove the school and the state from their free speech problem, while opening the flood gates of abuse onto the white trash honky head’s of the racist shit family. If the family wasn’t racist, but just the spawner of the kid, then they can disown him as a measure of their contrition and their personal rehabilitation of their reputation.
I have not seen the post, but if the student took the picture of the other student while in school, then perhaps that becomes an argument that the school is now involved and needs to weigh in. That is, if the events both happened on their property and on social media. I am not sure of this, though.
When “hate speech” and “free speech” meet the result is always messy and confusing. The UK government has got itself into just such a tangle with contradictory proposed legislation.
On the one hand, it is aiming to introduce the Online Safety Bill, under which social media companies could be required to censor bigoted statements such as “Blacks are genetically less intelligent”, “Muslims do not belong in this country” or “It is right to discriminate against gays”.
But on the other, it is simultaneously proposing a Higher Education (Freedom of Speech) Bill, under which any university or student union that did censor those same bigoted statements could face sanctions.
Kenan Malik had an excellent piece about this nonsense in last Sunday’s edition of The Observer (from which I stole the above examples): https://www.theguardian.com/commentisfree/2021/may/16/politicians-wrong-people-to-decide-definition-of-free-speech
Important safety tip. Thanks, Egon. 🙂
“You never studied”
Actually, the two bills aren’t contradictory. One bill says that social media companies must censor certain content and the other bill says that universities must not censor the same content.
Indeed, though I’m not sure what happens if a university event is live-streamed or made available online, or if the phrase causing offence is in the title of a discussion which is advertised via social media…
Under the applicable section of the Indiana Criminal Code, “harassment” is defined as “conduct directed toward a victim that includes but is not limited to repeated or continuing impermissible contact that would cause a reasonable person to suffer emotional distress and that actually causes the victim to suffer emotional distress.” (emphasis added)
Where’s the repeated or continuing conduct that would warrant an arrest in this case?
I think the “but is not limited to” language in the statute runs afoul of the constitutional void-for-vagueness doctrine.
Whoops, I thought we were talking about Indiana law because the article appeared in the The Indiana Lawyer, but it’s Connecticut law at issue.
The relevant statute is Connecticut General Statute § 53-37. No chance it passes First Amendment muster. Zip.
Is there any sanction on lawmakers who are so incompetent as to pass legislation that is struck down on constitutional grounds? Particularly for legislators who claim to be professional lawyers, and actually vote for such an infringing piece of legislation?
This law was brought in in 1917, apparrently, so if it were struck down for violating a 1918 amendment, then that’s probably understandable, but my limited understanding of American law has that the first fist-full of amendments were passed way back in the 1800s, so the 1917 legislators were being incompetent when they passed the relevant act.
The first ten amendments to the US constitution — known as “the Bill of Rights” — were ratified as a group in 1791, just two years after the 1789 ratification of the constitution proper.
So, all lawyer trained since about 1790 should know them. But evidently some legislators (or the qualified legal staff employed by the (local) governments) don’t know and understand the application of these parts of the law.
I don’t know what that level of incompetence is called in America, but here showing such incompetence is definitely liable to lose you your qualification, or at least have you sent back to school to repeat your qualification exams. Similarly, a solicitor who loses a client’s money (as opposed to just stealing it) in a transaction would be likely to lose his (or her) job.
We treat incompetent doctors similarly.
It will also be interesting to see how they apply “impermissible contact” to snapchat. I don’t know much about it, but if receiving messages from someone is “opt in” then it’s hard to justify the claim it wasn’t permitted. (OTOH, if someone can just grab your handle and send you stuff, like email, that could be considered unpermitted.)
I don’t understand how the guy is arrested – that makes little sense. The action taken by the school also seems beyond reason. The state is nuts.
The reasonable way this kind of thing should be handled is by the internet platform. They should set the rules and standards of what is allowed on their platform and then remove those who violate. Just like they did with Trump. You do not want all this crap ending up in courts.
Would not school bullying policies be the more appropriate avenue for discipline?
If this happened in school, either in meat space or virtually (via a school website), I think it definitely should be. But apparently this happened via Snapchat, a very popular social media app that doesn’t have anything to do with the school. Given that I’m not sure the school should get involved at all, except possibly by reporting the offending post to Snapchat, if they even have such a function.
Based on what I’ve heard so far, involving the police to the point of the student being arrested and criminally charged is ridiculous. It stinks to be put into a position in which defending a person for being odious is the right thing to do, but that seems to be the case here. The Woke are making a habit of doing just that, which is stupid. Doing this makes “enemies” of those that should be their natural allies, such as me, and gives their true opponents standing that they don’t deserve. All exactly opposite to what they should be striving for.
According to some news articles, the picture itself was taken inside a classroom at the school. So there is a connection to the school, as far as their wanting to maintain some control over what happens in their classrooms.
That would seem to give the school some standing to get involved. And if the Snapchatting was going on during school and or on campus, it definitely would.
Agree. My earlier comment assumed it was an ‘outside of school’ social media thing. If he used pics of the school and was on social media during school, then the school certainly has the right to talk to him about appropriate and inappropriate in-school conduct, and discipline him if they think his in-school conduct deserved it.
Still not getting expulsion or arrest though. Tell him he can’t bring his smartphone to school for the next week, or give him detention, or something like that.
Yes, I agree. School detention seems like a reasonable level of force to use for this sort of thing.
I’ve had the “privilege” of working in in-school suspension. (The atmosphere of the space was refulgent with surliness and, as they say in the school trade, “oppositional defiance.”) Perhaps that should be part of a U.S. national service program. (Perhaps at least a few might prefer the military to national service.)
This seems to me just another case of a university playing CYA, not wanting to be accused of being “soft” on racism. This should never have gone so far, IMO.
Public high school.
Sorry, thanks for the correction.
No reason to be sorry!
If I could just repeat here with a little clarity, none of this need take place if, in this case, Snapchat, did it’s job properly instead of just making money. They should have clear and firm rules applied to use of the platform that does not allow this kind of posting. So this would get you permanently removed from using the platform. End of story. There would be no need of arresting the student or for the school to kick him out. None of that would be necessary.
So let us have internet platforms that are required to set and enforce rules to use them. Just like what happened to Trump a short time ago. So even if the law does not come and get him for insurrection, at least he is gone from Twitter and Facebook where he caused the event. After all, this kid would not have the balls to do this without an internet platform right? Cowards never do this stuff in person and if they did, it would likely be taken care of.
The fact remains that the law is in place, and I could be arrested just for posting some “hate speech” on this website. It doesn’t require Facebook or Snapchat or Twitter. The law needs to go.
Isn’t the way the law goes is for you or whoever is arrested takes it to court and depending on the outcome has the ability to take it all the way to the supreme court if necessary. States are everyday passing laws that are totally against the Constitution and in each case it takes affected persons to take the thing through the courts and has the money to do this. I would rather prevent all of this by requiring internet platforms to do most of the work for us.
The immediate consequence of that would be that the affected platforms would relocate outside such an expensive jurisdiction, leaving stubs of companies to handle things like invoicing advertising and laundering cash.
Unless, of course, each jurisdiction in America (and the rest of the world) was to implement effective “geofencing” of their area. In which case you’d just have to put up with the wailing and gnashing of teeth of Connetticut residents who find SnapChat suddenly stops working for them.
Someone would probably draw comparisons with the “Great Firewall of China”, and they wouldn’t be flattering comparisons.
I wonder if the Connecticut law would apply to blasphemy against The Church of the Flying Spaghetti Monster. Or is there a government list of approved religions, and Pastafarians are not on it?
When it comes to jurisprudence under the First Amendment’s religion clauses, courts do NOT determine the veracity of any religious claims (for the very practical reason that, like armpits, all of them stink).
The courts WILL, however, consider evidence regarding whether professed religious beliefs are sincerely espoused.
As you know, it takes some one or some organization such as FFRF, who has the funds and the legal power to do this. They do this for a living and they cannot keep up.
And as the occasional victory cry from Pastafarians who get to wear their religiously-required clothing (typically a colander, sometimes pirate regalia) in governmental ID cards (e.g. photographic driving licenses) shows, that is a fight which some jurisdictions really don’t want to get involved with.
I can’t say I blame them for not wanting to open that particular can of worms.
I haven’t read all the comments, but it seems to me that the posting student has a right to free speech, but not to the use of the other student’s image. If the pictured student is a minor (which I assume since the cops weren’t permitted to identify the poster), there may be other laws violated by the post.
Perhaps! But remember that the student was charged and jailed for violating the Connecticut hate-crimes law, which is an unconstitutional law.
The crucial distinction is that blasphemy is the only form of hate speech that is victimless.