UConn Students’ Arrests following Racial Slurs Raises First Amendment Concerns

On Monday, October 21, 2019, two students at the University of Connecticut (“UConn”) were arrested and charged with ridicule on account of creed, religion, color, denomination, nationality or race. The students were walking through a campus parking lot playing a game in which they yelled vulgar words, including racial slurs. UConn students and activists have been disappointed with the University’s response. These critiques have centered around whether the students’ speech is legally protected under the First Amendment and the University’s failure to address systemic racism on campus.

The students were charged under Section 53-37 of the Connecticut General Statutes, Conn. Gen. Stat. § 53-37 (2012), which states: “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.” The misdemeanor carries a maximum penalty of a $50 fine or up to 30 days of imprisonment. The students were released from custody and are scheduled to return for court dates on November 13 and December 19.

Two related First Amendment issues emerge: first, is the Connecticut Statute constitutional? Second, if it is not constitutional, would the students’ speech constitute legally protected speech under the First Amendment?

The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Not all speech is protected; some exceptions include incitement to violence, fighting words, threats, and perjury, among others. Yet, the First Amendment does protect speech offensive to particular groups and even hate speech.

In 1999, the Office of Legislative Research found the Connecticut Statute constitutionally questionable. UConn law professor Douglas Spencer commented that the statute’s language is so vague that it would have allowed the entire cast of “The Book of Mormon” to be arrested since the play ridicules a religious group. Despite these critiques, the statute is still good law.

Even if the statute were found to be unconstitutional, the First Amendment would likely still protect the students’ speech. The ACLU noted that the students’ actions were “morally abhorrent” but likely did not meet the threshold of the First Amendment exceptions, such as inciting violence. However, Connecticut State Senator Dennis Bradley argued that the students’ words may constitute an incitement to violence if analyzed within the historical context of racism in America.

These legal questions have not been answered, but students and activists alike agree that UConn’s response to the incident has been inadequate in ensuring that all its students feel safe and valued while engaging in its educational opportunities. Students criticized the time it took UConn administration to respond--over a week--and set out eight steps the administration should take to better address institutional racism at the school. Additionally, the ACLU criticized the administration for “hiding behind two arrests” instead of addressing inadequate internal disciplinary procedures to ensure all students--and particularly black students--feel safe on campus. Under existing freedom of speech law, it is unlikely that the two students will be convicted. So the question remains, what consequences will these students face? UConn has not announced what the repercussions will be under its code of conduct, but the consequences could involve suspension or expulsion.