There was never any serious question that the prosecution would be prohibited under RAV v. St. Paul, the 1992 Supreme Court holding that the First Amendment prohibited criminalizing expressions of racism. And the actions of the UConn students didn’t even violate the elements of the offense charged, as Adam Steinbaugh at FIRE noted:
The statute under which the students are charged reads, in full:
Sec. 53-37. Ridicule on account of creed, religion, color, denomination, nationality or race. 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.
This was a situation where there was “hate” without a crime. The criminal statute failed to cover the conduct, and even if it had, it would have been facially unconstitutional. Yet, there they were, two UConn students, under arrest after a video of them yelling the N-word in a parking lot at no one in particular was recorded by residents. And the cries for their heads followed.
The incident was captured on a now-viral video that has led to pointed conversations about racial inclusion on campus and sparked a rally Monday afternoon during which hundreds of students and the campus NAACP demanding action from top school officials.
There’s no question as to the outrageous offensiveness of the word, and had it been directed at a particular individual, it might well present a test of the vitality of the Chaplinsky “fighting words” doctrine. But its mere mention, even when yelled as a test of youthful idiocy in a parking lot, gave rise to a substantial outcry that these two students be prosecuted for it.
It’s not a crime. Hate the word, and anyone uttering the word, all you want. It’s still not a crime.
That didn’t seem to slow down the carceral machine.
“It is supportive of our core values to pursue accountability, through due process, for an egregious assault on our community that has caused considerable harm,” UConn President Thomas Katsouleas said in a statement late Monday night. “I’m grateful for the university’s collective effort in responding to this incident, especially the hard work of the UConn Police Department, which has been investigating the case since it was reported.”
It’s understandable that the president of UConn would feel compelled to take this very seriously, given the campus reactions that followed, although this might have been better addressed as a learning opportunity than an excuse for rhetorical excess such as “egregious assault.” There was offense, as was understandable, but “considerable harm”?
Regardless, it was entirely unsurprising that this video blew the campus up, and there was no excuse for two college-aged boys to engage in such an outrageous display of offensiveness, even if doing stupid things is what kids do.
But that condemnation of the conduct, and addressing it within the campus community, was insufficient such that the cries were for criminal prosecution for the utterance of an offensive word takes this beyond the realm of mere woke excess.
[T]he government can’t punish people — however loathsome their behavior might be — under a law that simply doesn’t apply to those people. Whatever stunt the students were pulling, it wasn’t an “advertisement.” Connecticut police and prosecutors must, above all, follow the law: both the First Amendment and Connecticut’s own state statutes. If the lawyers for the UConn students move to dismiss the charges against them, they should win, either in the trial court or, if necessary, on appeal.
That so many want so desperately to criminally punish these two students for their use of the N-word reflects a deeply disturbing delusion that’s becoming normal and acceptable, that mere speech, mere utterance of a word, should be sufficient to convict people of a crime. And there’s no shortage of support among the woke for such treatment.
There is a good chance that the case will be dismissed, although there is similarly a good chance that the kids will be offered some opportunistic outcome to bail out of the prosecution without consequence as well. As Eugene Volokh says, bad misdemeanor laws are rarely appealed as it’s just not worth the cost and effort, and so they remain on the books to be seized when no other law will do the trick.
But the problem here isn’t the law, which is clear and prohibits the prosecution of these two kids. The problem is the people, the great many people, who believe as hard as they can that this should be a crime, that these two students should be prosecuted and that anything less will fail to demonstrate the harshness with which hate speech should be treated. And there is nothing to be said that can assuage their carceral demand for blood.