Topic:
CONSTITUTIONAL LAW; FREEDOM OF SPEECH;
Location:
CONSTITUTIONAL LAW;
Scope:
Connecticut laws/regulations;

OLR Research Report


The Connecticut General Assembly

OFFICE OF LEGISLATIVE RESEARCH




August 11, 1994 94-R-0786

TO:

FROM: D'Ann Mazzocca, Principal Analyst

RE: Public Access and Free Speech

You asked whether state or federal laws prohibit the use of a public building, such as a school, for a meeting in which (1) access is denied to specific groups of people on the basis of, say, sex or race or (2) racist and discriminatory remarks are made.

SUMMARY

The state's public accommodations law prohibits denying anyone, on grounds such as race or sex, equal access to a place that offers its services or facilities to the general public. Another statute prohibits ridiculing or showing contempt for anyone or any group on account of race or religion. But this latter law would probably be found unconstitutional if challenged, on the ground that it violates the U.S. Constitution's First Amendment guarantee of free speech. The validity of government regulation of the content of speech generally does not depend on the forum in which it is uttered, so the fact that discriminatory remarks are made at a meeting in a school building is probably irrelevant.

PUBLIC ACCESS

Section 46a-64 of the General Statutes makes it an unlawful discriminatory practice (1) to deny anyone full and equal accommodations in any place of public accommodation because of race or sex or other specified characteristics or (2) to discriminate, segregate, or separate on account of race, sex, or specified other characteristics. The penalty for violating this law is a fine of from $25 to $100, up to 30 days imprisonment, or both.

The statute defines a place of public accommodation as an establishment that caters to or offers its service or facilities to the general public (CGS 46a-63(1)). It seems reasonable to infer that a school facility being rented by an organization to hold a meeting open to the general public would be considered a place of public accommodation for this purpose. But even if it were not, subdivision (2) of the statute, which prohibits discriminating or separating on the basis of race or sex, makes it illegal to deny people of one race or sex access to a public meeting.

FREEDOM OF SPEECH

Section 53-37 of the General Statutes provides a fine of up to $50, up to 30 days imprisonment, or both for anyone who ridicules or holds up to contempt anyone because of “creed, religion, color, denomination, nationality, or race.” This law was in the 1949 revision of the statutes and, according to Eleanor Kaplan of the state's Commission on Human Rights and Opportunities, probably dates back to the post Civil War period. Most states have some form of a so-called “hate crime” law, but constitutional law experts believe these laws violate the First Amendment, especially as interpreted by the Supreme Court in a 1992 hate speech case.

The First Amendment to the U.S. Constitution states that “Congress shall make no law abridging the freedom of speech.” Its point is that government should not be entitled to suppress wrong or bad ideas, but rather that these ideas should be exposed as such through the exchange of ideas. The Supreme Court has held that certain categories of speech are not protected by the First Amendment, and these include the use of “fighting words,” words that are likely to provoke the average person to fight (Chaplinsky v. New Hampshire, 315 US 568 (1942)).

Subsequent cases have limited the scope of this category, however. It is not enough that speech stirs people to anger (Terminiello v. Chicago, 337 US 1 (1949)) or leads police to have generalized fears of consequent violence (Edwards v. South Carolina, 372 US 229 (1963)). If police can control an angry crowd, they may not arrest the speaker who provoked the anger for using “fighting words” (Cox v. Louisiana, 379 US 636 (1965)). Federal and district appeals courts have explicitly held that expression may not be banned just because it is “offensive” to those exposed to it. A Village of Skokie, Illinois ordinance, which was enacted in anticipation of an American Nazi demonstration in the predominantly Jewish community and which prohibited dissemination of materials promoting or inciting racial or religious hatred, was found unconstitutional even though these ideas would be shocking and offensive to the residents (Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978)).

In a more recent case, the Court found unconstitutional an ordinance that criminalized any expression that “one knows or has reasonable grounds to know arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender” (R.A.V. v. City of St. Paul, 112 S.Ct. 2538 (1992)). Analysts believe that this probably invalidates hate crime statutes that turn on the motive of the offender, that is, on the basis of the victim's race, religion, or sex.

The forum in which expression takes place is generally not relevant to whether the government can regulate its content. But it is more relevant to government regulation of its context. Speech in a public place, such as a street, sidewalk, or park, is least subject to government regulation. But some government owned buildings such as schools and libraries are viewed as semi-public forums. The Court has held that expression there may be regulated to preserve the “tranquility” that such a forum's basic purpose requires. Thus an ordinance may prohibit noise or other interference with a school's “peace or good order” when classes are in session (Grayned v. Rockford, 408 US 104 (1972)).

Interestingly, when schools are used after hours by the community, they are considered nonpublic forums—even though the meetings are open to the general public. But even in a nonpublic forum any government regulation must have a neutral viewpoint. The Court found last year that a school district could not prohibit an evangelical church from showing a film on family and child rearing from a religious standpoint, since it allowed the presentation of other views about family and child rearing issues (Lamb's Chapel v. Center Moriches Union Free School District, 113 S.Ct. 2141 (1993)).

Should you want more information about any of these cases, please do not hesitate to call.

DAM:lav