We discussed two areas that are relevant to freedom of expression in the United States: increased surveillance of social media language as a disciplinary ground, and efforts to criminalize language. Both concerns appear to have grown together over the arrest of a Connecticut student accused of posting racist comments on a classmate. The case could represent an important judicial test for this country to resist the criminalization of the language we have seen in Europe. In particular, we recently discussed an important Fourth Circle decision aimed at breaking a man’s belief that he had used a racist bow in a shoe store.
According to an AP story, the 16-year-old Fairfield Warde High School student allegedly took a picture of a black classmate and posted it on Snapchat on May 7 with a racist caption. The arrest appears to have been under a state anti-hate crime law that has long been criticized as dangerously vague by some of us in the free speech community. In the provision it says:
“Any person who, through their advertising, mocks or despises a person or a group of people on the basis of their creed, religion, skin color, denomination, nationality or race of that person or group of people, must be guilty of a class D offense.”
The law is similar to the kind of vague language codes we touched on on campus, but this is an actual criminal provision under state law. It allegedly allows the prosecution of speeches that are considered “ridiculous” or “subject to contempt”. It is exactly the type of language crime that I have written about for years as an eradication of free speech in Europe.
For years I have written about the efforts of European countries to step up their crackdown on freedom of expression. The criminalization of the language has increased in countries like France, Germany and England, although there are laws against hate speech and language regulation. Most worrying is the call for European-style language restrictions in this country.
Free speech requires light lines. One of the greatest threats to freedom of expression is the chilling effect caused by ambiguous or vague standards such as those contained in this law. Any case of an obnoxious or disgusting person invites us to make an exception or find a sophisticated excuse for not following our principles. The temptation is especially great in such cases when the defense of free speech can be confused with the support of bigotry.
In this case, however, the NAACP requested Greater Bridgeport to file criminal charges for the Snapchat post. Rev. D. Stanley Lord, President of the NAACP Chapter, stated: “It was shocking. We need to send a strong message that such behavior will not be tolerated in any school system. “
Few would disagree with the Rev. Lord on the need to condemn such racial slurs. However, freedom of speech often forces us to defend those we judge for their views or language. It is never popular to fight for the freedom of speech for those who use such vile language. It is never popular to fight for the freedom of speech for people like Bartow. After being quoted in support of the Fourth Circle ruling in a Washington Post article, I received emails denouncing me as a de facto racist, including one from a lawyer calling me for “defending bigotry.” under the guise of constitutional freedom “. It is a common attack on free speech advocates to claim that in such cases we are defending bigotry as opposed to free speech. The “cloak of constitutional freedom” is in fact the protection of unpopular language by the First Amendment. Indeed, Justice Thurgood Marshall famously stated in Police Dep’t of Chi. v. Mosley, 408, US 92, 95 (1972) that “the government has no power to limit the term based on its message, ideas, subject matter, or content”.
The Connecticut arrest comes as the US Supreme Court is weighing schools’ right to punish students for speaking outside of school in the Mahanoy Area School District against BL. We have seen a steady erosion of student freedom of speech over the past decade. The Supreme Court accelerated this trend in its Morse ruling. Former JDHS director Deb Morse suspended Frederick during the 2002 Olympic torch relay for holding a 14-foot banner reading “Bong Hits 4 Jesus” across from the high school. The case eventually led to the Supreme Court ruling on the board of directors in Morse v Frederick in 2007 – a decision I disagreed with at all and which has led school officials to encroach on protected areas.
This case adds the specter of criminal prosecution to that trend. It’s all too familiar. We have previously had the alarming rollback of freedom of speech in the West (here and here and here and here and here and here and here) and here and here and here and here and here and here and here and here and here and here and here and here and here and here and here and here and here and here and here and here and here and here and here and here and here and here and here and here). Abuses have occurred in the United States, particularly on college campuses. In particular, the media celebrated French President Emmanuel Macron’s speech to Congress calling on the United States to follow Europe’s model of hate speech.
We can all condemn racist speech without restricting the freedom of speech in our society. Otherwise, we are on the same slippery slope as Europe in terms of criminal language codes and censored language.