Outside the Beltway

Woman Arrested for Racial Epithets at Taco Bell

James Joyner · Saturday, February 4, 2006 · 6 comments

Drudge reports that a Connecticut woman has been arrested for using racial epithets at a Taco Bell.

A woman accused of using racial epithets while waiting for food at a Connecticut Taco Bell drive-through window was arrested Wednesday. Jennifer Farrelly, 19, of East Windsor, has been charged with ridicule on account of race, creed or color and second-degree breach of peace. Farrelly’s boyfriend, Eric Satterlee, 22, of Ashford, was charged with breach of peace in the incident.

On Dec. 18, Farrelly and Satterlee became frustrated by the slow service at the Taco Bell restaurant on Brookside Place, according to an arrest warrant. Farrelly banged on the drive-through window and called the Taco Bell attendant, Jamelle Byrd, a racial epithet, according to the warrant. Satterlee allegedly cursed and banged on the window.

Farrelly denied using racial epithets when she was interviewed by police, saying Byrd caused the dispute by ridiculing her for parking her car far away from the drive-through window, the warrant states. Byrd’s supervisor told police that Byrd should not have been working the drive-through because he had gotten into a similar incident with another customer, the warrant states.

Drudge apparently isn’t making this up. A quick Google search reveals numerous arrests in Connecticut for “ridicule on account of race.” Here’s the statute in question:

Sec. 53-37. Ridicule on account of race, creed or color. 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.

How can non-violent speech be against the law? Doesn’t the First Amendment protect free speech? The Supreme Court has consistently ruled it does not protect every utterance, even aside from the well known and generally accepted “clear and present danger” exceptions. The most obvious exception applicable here is Fighting Words doctrine.

In Chaplinsky v. New Hampshire, [95] the Court unanimously sustained a conviction under a statute proscribing ”any offensive, derisive, or annoying word” addressed to any person in a public place under the state court’s interpretation of the statute as being limited to ”fighting words”– i.e., to ”words . . . [which] have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” The statute was sustained as ”narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace.” [96] The case is best known for Justice Murphy’s famous dictum. ”[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words–those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” [97]

Chaplinsky still remains viable for the principle that ”the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called ‘fighting words,’ those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.” [98] But, in actuality, the Court has closely scrutinized statutes on vagueness and overbreadth grounds and set aside convictions as not being within the doctrine. Chaplinsky thus remains formally alive but of little vitality. [99]

On the obverse side, the ”hostile audience” situation, the Court once sustained a conviction for disorderly conduct of one who refused police demands to cease speaking after his speech seemingly stirred numbers of his listeners to mutterings and threatened disorders. 100 But this case has been significantly limited by cases which hold protected the peaceful expression of views which stirs people to anger because of the content of the expression, or perhaps because of the manner in which it is conveyed, and that breach of the peace and disorderly conduct statutes may not be used to curb such expression.

. . . . . . . .
[Footnote 95] 315 U.S. 568 (1942).

[Footnote 96] Id. at 573.

[Footnote 97] Id. at 571-72.

[Footnote 98] Cohen v. California, 403 U.S. 15, 20 (1971). Cohen’s conviction for breach of peace, occasioned by his appearance in public with an ”offensive expletive” lettered on his jacket, was reversed, in part because the words were not a personal insult and there was no evidence of audience objection.

[Footnote 99] The cases hold that government may not punish profane, vulgar, or opprobrious words simply because they are offensive, but only if they are ”fighting words” that do have a direct tendency to cause acts of violence by the person to whom they are directed. Gooding v. Wilson, 405 U.S. 518 (1972); Hess v. Indiana, 414 U.S. 105 (1973); Lewis v. City of New Orleans, 415 U.S. 130 (1974); Lucas v. Arkansas, 416 U.S. 919 (1974); Kelly v. Ohio, 416 U.S. 923 (1974); Karlan v. City of Cincinnati, 416 U.S. 924 (1974); Rosen v. California, 416 U.S. 924 (1974); and see Eaton v. City of Tulsa, 416 U.S. 697 (1974).

Clearly, however, this particular incident was unlikely to incite violence. The alleged epithet hurler was in a car and the recipient on the other side of a window.

The Court has ruled, though, that states have some leeway in regulating so called Hate Speech.

In Beauharnais v. Illinois, [104] relying on dicta in past cases, [105] the Court upheld a state group libel law which made it unlawful to defame a race or class of people. The defendant had been convicted under this statute after he had distributed a leaflet, a part of which was in the form of a petition to his city government, taking a hard-line white supremacy position and calling for action to keep African Americans out of white neighborhoods. Justice Frankfurter for the Court sustained the statute along the following reasoning. Libel of an individual, he established, was a common-law crime and was now made criminal by statute in every State in the Union. These laws raise no constitutional difficulty because libel is within that class of speech which is not protected by the First Amendment. If an utterance directed at an individual may be the object of criminal sanctions, no good reason appears to deny a State the power to punish the same utterances when they are directed at a defined group, ”unless we can say that this is a willful and purposeless restriction unrelated to the peace and well-being of the State.” [106] The Justice then reviewed the history of racial strife in Illinois to conclude that the legislature could reasonably fear substantial evils from unrestrained racial utterances. Neither did the Constitution require the State to accept a defense of truth, inasmuch as historically a defendant had to show not only truth but publication with good motives and for justifiable ends. [107] ”Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary . . . to consider the issues behind the phrase ‘clear and present danger.”’ [108]

Beauharnais has little continuing vitality as precedent. Its holding, premised in part on the categorical exclusion of defamatory statements from First Amendment protection, has been substantially undercut by subsequent developments, not the least of which are the Court’s subjection of defamation law to First Amendment challenge and its ringing endorsement of ”uninhibited, robust, and wide-open” debate on public issues in New York Times Co. v. Sullivan. [109] In R. A. V. v. City of St. Paul, the Court, in an opinion by Justice Scalia, explained and qualified the categorical exclusions for defamation, obscenity, and fighting words. These categories of speech are not ”entirely invisible to the Constitution,” but instead ”can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content.” [110] Content discrimination unrelated to that ”distinctively proscribable content” runs afoul of the First Amendment. Therefore, the city’s bias-motivated crime ordinance, interpreted as banning the use of fighting words known to offend on the basis of race, color, creed, religion, or gender, but not on such other possible bases as political affiliation, union membership, or homosexuality, was invalidated for its content discrimination. ”The First Amendment does not permit [the city] to impose special prohibitions on those speakers who express views on disfavored subjects.” [111]

. . . . . . . .
[Footnote 104] 343 U.S. 250 (1952).

[Footnote 105] Chaplinsky v. New Hampshire, 315 U.S. 568, 571 -72 (1942); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707 -08 (1931).

[Footnote 106] Beauharnais v. Illinois, 343 U.S. 250, 254 -58 (1952).

[Footnote 107] Id. at 265-66.

[Footnote 108] Id. at 266.

[Footnote 109] 376 U.S. 254 (1964). See also Collin v. Smith, 447 F. Supp. 676 (N.D.Ill.) (ordinances prohibiting distribution of materials containing racial slurs are unconstitutional), aff’d, 578 F.2d 1197 (7th Cir.), stay denied, 436 U.S. 953 (1978), cert. denied, 439 U.S. 916 (1978) (Justices Blackmun and Rehnquist dissenting on basis that Court should review case that is in ”some tension” with Beauharnais). But see New York v. Ferber, 458 U.S. 747, 763 (1982) (obliquely citing Beauharnais with approval).

[Footnote 110] 112 S. Ct. at 2543 (emphasis original).

[Footnote 111] Id. at 2547. On the other hand, the First Amendment does permit enhancement of a criminal penalty based on the defendant’s motive in selecting a victim of a particular race. Wisconsin v. Mitchell, 508 U.S. 476 (1993). The law has long recognized motive as a permissible element in sentencing, the Court noted. Id. at 2199. R.A.V. was distinguished as involving a limitation on ”speech” rather than conduct, and because the state might permissibly conclude that bias-inspired crimes inflict greater societal harm than do non-bias inspired crimes (e.g., they are more likely to provoke retaliatory crimes). Id. at 2201. See generally Laurence H. Tribe, The Mystery of Motive, Private and Public: Some Notes Inspired by the Problems of Hate Crime and Animal Sacrifice, 1993 Sup. Ct. Rev. 1.

Still, it is unclear whether Farrelly’s arrest would withstand constitutional muster. My instinct is that it would not. The “ridicule” statute is aimed at a particular viewpoint and likely runs afoul of the First Amendment. Further, while there is little controversy that “disturbing the peace” falls outside the bounds of First Amendment protection, it is far from clear how, in this instance, any peace was disturbed. The alleged incident took place in a parking lot and was unlikely to have been heard by anyone other than the alleged utterer and the alleged target of the slur.