Tuesday, 4 Aug 2020

Opinion | Those College Students Who Used the N-Word Shouldn’t Have Been Arrested

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.

The law is now in the news because of an incident involving two students at the University of Connecticut, who were arrested by the campus police on Monday night and charged under the law with ridiculing a protected group.

Ten days before their arrest, the two men, both white, were being stupid, as college-age males sometimes are wont to do. They were walking with a third man through a parking lot on campus, playing, according to a police report, “a game in which they yelled vulgar words.” Unbeknown to them, someone in a nearby apartment was watching — and recording them.

The video, which was shared widely on social media, shows the two men appearing to say the N-word to each other. They and their friend then laugh and continue on their way. The epithet is not directed at anyone, and contrary to some descriptions in the media, the video does not show the men “yelling” or “shouting.” They were just amusing themselves in a vulgar, ignorant way.

After student protests at which school administrators were urged to take action, the two men were arrested and charged. They are scheduled to appear in court on Wednesday. The men also face discipline by the university.

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.

First, the Supreme Court has long held that a law may not be so vague that it leaves an ordinary person uncertain about what it prohibits. Criminal laws, the court has said, may not create a “standardless sweep” that “allows policemen, prosecutors, and juries to pursue their personal predilections.”

Those who cheer the arrests of the University of Connecticut students might ask themselves whether they would be equally happy with a prosecutor who decided that it was criminal “ridicule” for someone to walk down the street uttering the N-word while reciting rap lyrics. But that’s not ridicule, you say? Well, that’s the point: Who should be trusted to decide such things when fines, jail time and expulsion from college loom as possible consequences?

Second, federal courts consistently have struck down speech codes at public universities that punished students who engaged in undefined “acts of intolerance” or who “stigmatized” others based on their race, religion, sexuality or other characteristic. One such decision invalidated a university speech code that imposed discipline for “threats, insults, epithets, ridicule or personal attacks.”

The reasoning in those cases — that speech may not be censored or punished for its content — also applies in the University of Connecticut case. Here, there was not even an identifiable target of the offensive speech, just a bystander with a cellphone. (Moreover, it appears that the Connecticut law, which was enacted a century ago, was intended to apply only to some form of “advertisement,” making the use of the law to criminalize the students’ speech even more misguided.)

To be sure, speech may be punished when the words used are likely to produce what the Supreme Court has called “imminent lawless action,” such as physical violence. But this leads to the third reason Connecticut’s anti-ridicule statute is unconstitutional. The Supreme Court case that established that rule, Brandenburg v. Ohio in 1969, involved the prosecution of Ku Klux Klansmen who were filmed uttering repulsive racist statements — including the N-word. But as in the case of the University of Connecticut students, the Klansmen’s words provoked no action, and the Ohio law under which the men were prosecuted was struck down under the First Amendment.

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.

Steve Sanders (@SteveSSanders) is a professor at the Maurer School of Law at Indiana University.

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