Among the most fundamental First Amendment rights is to ridicule — regardless of the reason. The same is true of holding people or groups up to contempt. Were Connecticut’s absurd statute to be upheld — which it will not be — it could be applied to comedians, op-ed writers, politicians, professors and other students. (Image source: iStock)
Two students at the University of Connecticut have been charged with the crime of ridiculing African Americans by shouting the N-word as part of a childishly inappropriate game. A video of the incident went viral and generated protests on and off the campus.
Outrageous as shouting this racist epithet is, the First Amendment protects it from criminal prosecution or other governmental sanctions. The Connecticut General Statute under which the students were charged is just about as unconstitutional as any statute can be. It is not even a close case. Here is what the statute criminalizes:
Section 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.
“Ridicules or holds up to contempt”! Among the most fundamental First Amendment rights is to ridicule — regardless of the reason. The same is true of holding people or groups up to contempt. Were this absurd statute to be upheld — which it will not be — it could be applied to comedians, op-ed writers, politicians, professors and other students.
Consider, for example, ridiculing people based on nationality. Sacha Baron Cohen, based on his films, would be guilty on multiple accounts. So would Mel Brooks. African American comedians often ridicule “whitey.” Feminist stand-up comedians mock men mercilessly.
Or consider “holds up to contempt” — half the faculty of many universities, including some at University of Connecticut — would be guilty for holding up Israel to contempt. Or students who attack other students for “white privilege” or “male privilege” would be committing a crime. Or pro-choice students or faculty who mock Christian fundamentalists who oppose abortion or gay rights. Where would it stop?
And what about “creed”? Is being a conservative or a Trump supporter a creed that cannot be ridiculed?
Of course, none of these politically correct ridiculers would ever be prosecuted under this statute. And therein lies its greatest danger: selective prosecution based on current political correctness. Precisely the kind of unpopular speech which the First Amendment was designed to protect would be most at risk. Anti-Semitic, anti-Christian and anti-conservative views are freely expressed not only outside of classes but in some classes as well. Such hateful expressions are not only tolerated, they are often praised as “progressive” by some of the same students and faculty members who would censor politically incorrect hate speech. Under the First Amendment, such selective censorship is intolerable.
Because the University of Connecticut is a public institution for adults, it is fully bound by the First Amendment. Its students are free to express racist ridicule and contempt outside of the classroom (the rules governing classroom speech are more complex).
The proper response to the expression of such obnoxious views is to counter them with better views in the marketplace of ideas, not to censor them and not to call the police.
So let there be rallies demanding mandatory diversity classes. Let the university president “bravely” stand in solidarity with the understandably offended students. Let the perpetrators be condemned and ostracized. These actions too are protected by the first amendment. But do not censor or prosecute protected obnoxious speech. All who care about civil liberties, regardless of race, should now join with the racist students in opposing their criminal prosecution and demanding that the Connecticut statute be struck down as unconstitutional.
The American Civil Liberties Union (ACLU) and the president of the university should lead the campaign against criminalizing speech that ridicules. Now that would take courage in our age of political correctness and at a time when the hard left is demanding “free speech for me but not for thee.” But this is not an age in which courage is widely practiced, especially on university campuses, and most especially by administrators.
So, do not count on others to defend the First Amendment rights of troublemakers who express racial ridicule or condemnation. The defense must come from grass roots civil libertarians who understand the need to protect speech we hate even more that speech we love. Where is Voltaire — to whom the quote “I disapprove of what you say, but I will defend to the death your right to say it” is often attributed — when we most need him?
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of The Case Against the Democratic House Impeaching Trump, Skyhorse Publishing, 2019.