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.