Two University of Connecticut students, Jarred Karal and Ryan Mucaj, were arrested for saying a racial slur out loud. They didn’t call another person a slur; they simply said the word. On Oct. 21, the young men were charged with violating Connecticut General Statute 53-37, which involves ridicule on account of creed, religion, color, denomination, nationality, or race, said UConn spokesperson Stephanie Reitz.
A Childish Game
Karal and Mucaj, walking home through an apartment parking lot after a heavy drinking session, amused themselves with a game of uttering obscenities in public. Karal told the police:
“As we made our walk up the hill, Ryan and I thought it would be funny to play the penis game. The penis game is a game where a group of people will begin to shout the word 'penis' as loud as you can. The first person who doesn’t want to shout 'penis' or begins to say 'penis' softly [loses]…”
The students' problem was that they switched from similar vulgarities to a racial epithet (as yet unspecified). An occupant of the apartment house called police to complain, and that led to a Jussie Smollett-like response from the police, who left no stone unturned to violate the Constitution. They used witness statements, still photo analysis, and data from an identification reader at the bar the accused visited to discover the identities of those who spoke the forbidden words.
If you read that and thought that this seems wildly unconstitutional, you are in good company. Law professor Eugene Volokh wrote an article last year criticizing the law and calling it “pretty obviously unconstitutional, because it suppresses speech based on its content (and viewpoint), and because there's no First Amendment exception for speech that insults based on race or religion.”
No Hate Crime Exception to First Amendment
While fighting words can be prohibited by law, words themselves cannot be. If, for instance, one of these men had walked up to a black person and shouted the “n” word at him, that could be an arrestable offense. Fighting words are “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” However, that is a million miles from what we have here.
While it has been reported that the men were shouting the epithets, the video and “victim” statements suggest the opposite per the Hartford Courant:
“’I ... took out my cell phone thinking that I would get a funny video of the group of males as they walked past my apartment building,’ the student told police, in a written statement. ‘I had begun filming hoping to get the group of males saying or doing something funny; however, as they continued walking down the road past my apartment building they began to say [the racial slur]. As the group transitioned to saying [the racial slur] they began to speak in a much softer tone and were not screaming nearly as loud as they had been previously.’”
And the finale:
“The student said he couldn’t hear what the males were saying as he filmed it, but when he replayed the video and turned up the volume it became clear they were using a racial slur.”
If you can’t hear the slur without the aid of post-production and electronic amplification, it isn’t fighting words. Also, they didn’t shout the slur and didn’t direct it at anyone as the bleeped version available here shows. A request for comment from the ACLU of Connecticut went unanswered by deadline. The Foundation for Individual Rights in Education (FIRE) released this statement:
“However offensive their language, the students did not direct it at anyone in particular or take physical action. If ‘ridicule’ on the basis of a wide array of classes is alone enough to sustain fines, arrest, and incarceration, a significant range of speech, commentary, and artistic expression could be criminalized at the discretion of police and prosecutors.
“Even if you find this speech undeserving of sympathy, empowering authorities to investigate and penalize racially-offensive commentary will be abused — indeed, a number of the rare charges under this statute have been for insulting police officers — and we should be most vigilant for constitutional freedoms when the outcome may be carceral.”
That last point is especially prescient. If you walk around an urban area populated by blacks, chances are they are the ones using the “n” word in public and no one else. Does the NAACP want them to be arrested? Will there be DNA tests to determine who gets to legally use the different slurs we have devised to describe our fellow man? No – this case will get tossed out if it is prosecuted at all because it is blatantly unconstitutional. More’s the pity that the police and university leadership would rather heed the call of the mob than protect the rights of their students.
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