Amity Regional High School, Grade 11
Teacher: Seth Davis
“In October 2019, two University of Connecticut students were charged under a state hate-crime law for yelling the N-word on campus. The comments were not directed at a specific individual. Should these students have been charged with a criminal offense? Does the First Amendment protect offensive speech?”
The stability of the American democracy rests on the protection of the people’s freedom of speech, as outlined in the First Amendment. And thus, just as with any liberty, the only situation where it may be permissible to curtail the freedom of speech is when another person’s rights outweigh that liberty. Because the students at the University of Connecticut did not incite violence nor direct their comments at a specific individual, their speech should be protected, and they should not have been charged with a criminal offense.
The government has no right to ban certain words or activities simply because they are offensive. The danger in not protecting free speech is twofold: firstly, the government is given excessive power; secondly, echo chambers are created that magnify the suppressed belief. In Brandenburg v Ohio, the leader of the KKK, Brandenburg, was charged with violating an Ohio criminal syndicalism law. Although he advocated extremism and racism at his rallies, the Supreme Court ruled that the Ohio law was unconstitutional, as speech that is political or prejudiced to a specific demographic is always protected under the First Amendment as long as it does not pose an imminent threat or incite violence. The Supreme Court rules similarly in favor of free speech in Terminello v Chicago and Virginia v Black.
In the case of the students at the University of Connecticut, three students were walking home from a pizza restaurant, playing a game where they yelled inappropriate words, including the N-word, in a parking lot at the edge of campus. Investigations showed prima facie evidence that these words were not directed at anyone, did not intend to harm, and would not have resulted in any violence or imminent illegal actions. This speech, although offensive, was not a “clear or present danger to the public,” and thus, per the guidelines of Schenck v US and the “imminent danger test” from Brandenburg v Ohio, the speech of these students should be protected.
Furthermore, it should be noted that this question must be considered differently than other cases, such as Morse v Frederick and Tinker v Des Moines, because those cases evaluated the right of the institution to adopt disciplinary measures, not the right of the state to incriminate these students.
These two students were arrested according to the “racial ridicule law” in Section 53-37 of the Connecticut General Statutes, a law enacted in 1917 that makes it a misdemeanor for anyone that “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.” Not only is the prosecution of these two students possibly not under this law, as these students were clearly not advertising, but this law should be deemed unconstitutional and overly vague. This law violates the right to freedom of speech as did the Ohio syndicalism law, and there is no transparent interpretation of it, despite its longevity of over 100 years, leaving policemen to decide what a “racial ridicule” is. As established in City of Chicago v Morales, criminal laws cannot create a “standardless sweep” that “allows policemen, prosecutors, and juries to pursue their personal predilections.”
Allowing vague laws to prosecute offensive speech gives the government excessive power and does not address the real issues at hand: systemic racism and ignorance. Censoring offensive speech does not mean that students and people alike will be sensitive to other’s opinions. Rather, it’s clear that racism, sexism, and discrimination aren’t alleviated by hiding issues, but rather with open discussion, where people are able to freely speak under their First Amendment rights.