Jarred Karal, 21, of Plainville, will be on probation for six months and must complete 20 hours of community service and undergo diversity and bias training. Rockville Superior Court Judge James Sicilian approved Karal's application for accelerated rehabilitation, finding that his offense was not of a serious nature and that it was unlikely Karal would offend again.

As I argued in this New York Daily News article, the statute is unconstitutional, and on its face not even applicable to the speech here; but I can understand why a defendant might prefer to make the case go away quickly rather than fighting. The other student, though, seems not to have made any such deal; I hope to know more soon about whether he'll be challenging the constitutionality of the prosecution.

Here, in the meantime, is a quick summary of the problems with the statute:

[1.] Connecticut General Statutes § 53-37 (which, oddly enough, is listed in some Connecticut government documents under the "affirmative action" category, as in this Affirmative Action Policy Statement and this Affirmative Action—Laws List) provides:

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 fined not more than fifty dollars or imprisoned not more than thirty days or both.

And, as best we can tell, prosecutors have averaged a bit over one conviction per year under the statute from 2000 to 2016, and in 2017 they had four prosecutions—two that were dropped, and two that were still pending as of the end of 2017. (Because records of prosecutions that don't lead to convictions are purged fairly promptly, I can't get information on unsuccessful prosecutions in past years.)

[2.] The statute, though, is 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. Beauharnais v. Illinois (1952) did uphold a "group libel" statute that banned derogatory statements about racial and religious groups, but that decision is widely and rightly regarded as obsolete, given the last 50 years of First Amendment jurisprudence. The only part of Beauharnais that likely survives is its general conclusion that there is a libel exception to the First Amendment; since then, that exception has been dramatically narrowed. As the Court has repeatedly held, racist and religiously bigoted speech is as constitutionally protected as speech that expresses other ideas.

But it turns out that Connecticut prosecutors aren't enforcing the law as it is written. I have found no prosecutions for advertisements that ridicule people based on race or religion—not for commercial advertisements (which in any event would be pretty bad for business these days) and not for political advertisements.

Rather, based on the 13 police reports that I've read, prosecutors seem to be enforcing the statute to punish people for race- or religion-based "fighting words": generally speaking, face-to-face personal insults that include racial or religious slurs. (The facts of the cases are a mix: Three involved racial insults of police officers, one case with anti-white insults and another with anti-black insults. The other ten mostly involved insults of black ordinary citizens, though one was of a Hispanic, one of someone perceived to be Muslim, and one of an ambiguously labeled "nigga cracker." The defendants were mostly whites, but two were likely Hispanic and one was black.)

Now that might be less troubling than trying to punish, say, political advertisements. But is itself unconstitutional, for three related reasons.

[A.] First, such insults may be offensive and empty of serious arguments, but they aren't advertisements, under any definition of the word "advertisement." The convicted defendants are not guilty of the crime they were charged with, given the plain text of the statute. And there are no appellate decisions reinterpreting the text of the statute (as there are for some statutes), so the defendants weren't guilty under either the law as written or the law as authoritatively construed. Indeed, the one nonprecedential decision I could find, National Socialist White People's Party v. Southern New England Telephone Co. (D. Mass. 1975) (3-judge court), and the one decision cited in that case, State v. Jensen (Conn. Cir. Ct. 1969), read the statute—consistently with its text—as genuinely limited to "advertisements."

Yet a 2008 report from the Connecticut legislature's Office of Legislative Research and a 2014 East Haven Police Department manual describe the statute simply as covering "ridicul[ing] any person or class of people on account of creed, religion, color, denomination, nationality, or race," likewise dropping the "advertisement" requirement. The prosecutors in the cases cited above for which I've seen arrest reports (more than half of the list) likewise seem to be ignoring that requirement.

[B.] Even if prosecutors are reading the state as only banning race- or religion-based fighting words—contrary to its text—there's no reason to think that all the judges are reading it that way, or will read it that way. Some guilty verdicts might thus easily be entered without the judges finding beyond a reasonable doubt that the speech constituted fighting words. Indeed, this very case involves speech that is unlikely to be viewed as "fighting words," since that narrow First Amendment exception is limited to "personally abusive epithets" that are "directed to the person of the hearer"; these words weren't directed to any particular person.