By Daniela Altimari
The Hartford Courant
HARTFORD, Conn. — Civil liberties groups are raising constitutional questions about the arrest of two University of Connecticut students caught on video repeatedly uttering a racist slur on the Mansfield, Connecticut, campus.
Jarred Karal and Ryan Mucaj were charged Oct. 21 with "ridicule on account of creed, religion, color, denomination, nationality or race," a criminal statute that dates back decades.
The students face disciplinary action from UConn, including expulsion, for potential violations of the university's code of conduct.
But it is the criminalization of bigoted and derogatory language that is drawing criticism.
"Although the conduct reported in this incident is reprehensible, it is not criminal," said David Cole, national legal director of the American Civil Liberties Union. He noted that the students did not appear to target a specific individual, nor did their words convey a direct threat.
"The First Amendment protects even offensive and hateful speech, so long as it does not rise to the level of incitement to violence, criminal harassment, or true threats," Cole added. "Nothing in the press reports indicates that the students' speech, while morally abhorrent, meets that demanding standard. The ACLU has long supported robust constitutional protections for speech, including speech we vehemently oppose."
The charge is a Class D misdemeanor, punishable by up to 30 days in prison, a fine of up to $50 or both.
It is rarely enforced; according to a review by the judicial branch, prosecutors brought the charge just 38 times since Jan. 1, 2012.
Professor Douglas Spencer, who teaches constitutional law at the University of Connecticut law school, said the statute is "unconstitutionally vague."
"The First Amendment protects against laws that suppress speech based on its content and/or its viewpoint," Spencer said. "In addition, the due process clause of the 14th Amendment protects against laws that are so vague police and prosecutors have unfettered discretion to criminalize speech they disagree with, and that are so overbroad they criminalize behavior that is clearly acceptable."
The language of the law is so problematic, Spencer said, that it could have been used to prosecute the entire cast of the production "The Book of Mormon" when the tour stopped at The Bushnell in September, on grounds that the play ridicules a religious group.
Spencer notes that the nonpartisan Office of Legislative Research examined the statute in 1999 and found it constitutionally shaky. "Nothing has changed in the statute or the constitution since then," he said.
State Rep. Arthur O'Neill said he supports a new review of the law to "see if it passes constitutional muster."
O'Neill, a Republican from Southbury, Connecticut, noted that the statute's roots go back to World War I, "a time when laws trended in the direction of restricting freedom of speech that today might very well be considered unconstitutional."
State Sen. John Kissel, R-Enfield, said the incident represents "a classic balance of freedom of speech with a desire to send a strong message that we want a tolerant state."
"I don't condone this behavior whatsoever, but was there a malicious intent? No, I don't see it," Kissel said. "Was it stupid? Yeah. I just can't see using limited state resources to put someone in jail for this."
State Rep. Craig Fishbein, R-Wallingford, said there should be no tolerance for offensive remarks.
"Should the public policy of the state of Connecticut allow for such activity? I think I'd have to answer that question in the negative," he said. "Whether or not it's a crime is a different question but it certainly should not be accepted practice."
State Sen. Dennis Bradley, a Democrat from Bridgeport, Connecticut, said the students' behavior has to be considered in the context of America's legacy of racism and could be seen as an incitement to violence.
"We have to be mindful that our words have consequences," Bradley said. "We have a history of slavery and racism that's bone deep."
Bradley said other nations have done a better job than the U.S. has of coming to terms with ugly chapters in their history. In Germany, he notes, it's a crime to publicly display Nazi symbols, unless they are shown for educational purposes.
According to arrest warrants, the two students, both 21, were walking home from a pizza restaurant with a third student just after midnight Oct. 12 when they began playing a game where they uttered inappropriate words. After repeatedly shouting "penis," the two students, who are white, started using a racial slur.
UConn police spent more than a week building a case against the students using surveillance video, Wi-Fi hotspots and card-swipe data from campus buildings, an investigation that drew praise from university President Thomas C. Katsouleas.
But the aggressive way in which police pursued the case was denounced by a national group dedicated to promoting free speech on college campuses. In a letter to Katsouleas and UConn police Chief Hans D. Rhynhart, the Foundation for Individual Rights in Education, or FIRE, asked for the charges to be dropped.
"UConn's stunning departure from its constitutional obligations is all the more alarming in light of the length of its investigation and the resulting arrests," the group wrote. "In the course of a ten-day investigation over a high-profile controversy, the university and its law enforcement officers must have learned both that the students' speech was protected and that the statute through which it justified their arrests was unconstitutional. If they did not, it is a remarkable failure for an institution ostensibly dedicated to furthering freedom of expression."
UConn spokeswoman Stephanie Reitz said campus police were obligated to investigate the incident. They brought the case to a prosecutor, who determined that there was probable cause for an arrest, she said.
"Before an arrest warrant is executed, it must be approved by a judge," Reitz said. "That process was followed in this case." The university, she said, "is committed to providing 'a safe, inclusive, respectful place in which all people can learn and work.'"
UConn, like many American institutions, is grappling with the unyielding pervasiveness of racism. In that context, university administrators may have felt compelled to take strong action against the students, said David McGuire, executive director of the ACLU of Connecticut.
But, McGuire said, arresting someone for offensive speech is far easier than addressing systemic racial discrimination.
UConn's response to the incident is "wholly inadequate and incomplete," McGuire said. "UConn administrators and government actors are hiding behind two arrests instead of taking action to stop racism on campus. ... Policing is an inherently white supremacist institution, and we remain skeptical of its ability to address racism and bigotry."
The NAACP chapter on campus has drafted a list of eight proposals to address structural inequities and support students of color at UConn. They include creating a required course for first-year students on ending racism on campus, updating the student code of conduct to include specific guidelines about racism and hate speech, hiring at least 10 black faculty members and staff, and protecting students who have been exposed to racism.
"As a public institution, UConn bears a constitutional responsibility to ensure students of color have equal access to education, which means equal access to a learning environment where they are safe," McGuire said. "To date, the school has not taken the steps necessary to fulfill that obligation, and until its internal disciplinary process is complete, it remains to be seen whether the school will take adequate action to hold the two arrested students accountable."
Reitz, the UConn spokeswoman, said the university is working to enhance diversity on all of its campuses "and listening to the voices and experiences of our students is a critical piece of that work."