We have been discussed two areas of concern for free speech in the United States: the increased monitoring of social media speech as grounds of discipline and the push to criminalize speech. Both of those concerns seem to have coalesced in the arrest of a Connecticut high school student accused of posting racist comments about a classmate. The case could present an important court test for this country in resisting the criminalization of speech that we have seen in Europe. Notably, we recently discussed a major ruling out of the Fourth Circuit to overturn the conviction of a man for using a racial slur in a shoe store.

According to an AP story, the 16-year-old student at Fairfield Warde High School allegedly took a photo of a Black classmate and posted it on Snapchat on May 7 with a racist caption. The arrest appears to have been made under a state hate crime law that has long been criticized by some of us in the free speech community as dangerously vague.  Here is what the provision 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 law is similar to the type of vague speech codes that we have addressed on campuses but this is an actual criminal provision under state law. It purportedly allows for the prosecution of speech that is deemed as “ridicule” or holding someone “up to contempt.” It is precisely the type of speech crime that I have written about for years as eviscerating free speech in Europe.

I have written for years on the effort of European countries to expand their crackdown on free speech. The criminalization of speech has expanded in countries like FranceGermany, and England though hate speech laws and speech regulation. Most concerning is the call for European style speech limits in this country.

Free speech demands bright lines. One of the greatest threats to free speech is the chilling effect caused by ambiguous or vague standards like the one contained in this statute. Every case of an obnoxious or repugnant individual invites us to make an exception or adopt some nuanced excuse for not following our principles. The temptation is particularly great in cases like this one when defending free speech can be confused with supporting bigotry.

Nevertheless, in this case, the Greater Bridgeport NAACP called for criminal charges for the Snapchat post. Rev. D. Stanley Lord, president of the NAACP chapter, declared “It was shocking. We have to send a strong message that behavior like this won’t be tolerated in any school system.”

Few would disagree with Rev. Lord on the need to condemn any such racist slurs.  However, free speech often compels us to defend those who we condemn for their views or language. It is never popular to fight for the free speech rights of individuals using such vile language. It is never popular to fight for the free speech rights of individuals like Bartow. Indeed, after being quoted in a Washington Post article in favor of the Fourth Circuit ruling, I received emails denouncing me as a de facto racist, including one from an attorney condemning me for “defending bigotry under the guise of constitutional freedom.” It is a common attack on free speech advocates to claim that we defend bigotry as opposed to free speech in such cases.  The “guise of constitutional freedom” is in fact the First Amendment’s protection of unpopular speech. Indeed, Justice Thurgood Marshall famously declared in Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972), that the “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”

The Connecticut arrest comes as the U.S. Supreme Court weighs the right of schools to punish students for out-of-school speech in Mahanoy Area School District v. B.L. We have seen a steady erosion of the free speech rights of students in the last decade. The Supreme Court accelerated that trend in its Morse decision. Former JDHS Principal Deb Morse suspended Frederick in 2002 during the Olympic Torch Relay for holding up a 14-foot banner across from the high school that read “Bong Hits 4 Jesus.” The case ultimately led to the Supreme Court which ruled in Morse v. Frederick ruling in 2007 for the Board — a decision that I strongly disagreed with and one that has encouraged over-reaching by school officials into protected areas.

This case adds the specter of criminal prosecution to this trend. It is all-too-familiar.  We have previously discussed the alarming rollback on free speech rights 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). There are encroachments appearing in the United States, particularly on college campuses. Notably, the media celebrated the speech of French President Emmanuel Macron before Congress where he called on the United States to follow the model of Europe on hate speech.

We can all condemn racist speech without curtailing free speech our society. Otherwise, we will find ourselves on the same slippery slope as Europe toward criminal speech codes and censored speech.

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