In Cerame v. Lamont, answering a question of law certified by the District of Connecticut, the Connecticut Supreme Court construed Conn. Gen. Stat. § 53-37—colloquially called the "racial ridicule" law—to apply exclusively to commercial advertisements and not to other noncommercial speech. This case both offers a lesson in using the state's certification procedure (as outlined in Conn. Gen. Stat. § 51-199b(d)) to streamline federal litigation and underscores the wisdom of advocating textually plausible statutory interpretations, even if they contravene settled practice or informal understanding. And while likely ending the particular matter before it, the Supreme Court's decision leaves open the ultimate constitutionality of the narrowed statute—now solely and explicitly a form of trade regulation.
Section 53-37 makes a misdemeanant out of anyone "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." The Cerame plaintiff brought a pre-enforcement federal lawsuit against state officials to invalidate the state statute, claiming that it violated his First Amendment rights. To have Article III standing to bring such a lawsuit, a plaintiff must demonstrate a credible fear that the law will be enforced against him, which entails showing, among other things, that the statute at least arguably proscribes his intended activity.
To establish standing, the Cerame plaintiff claimed that he regularly engages in speech that, he believed, § 53-37 in fact proscribed—such as by ridiculing himself or others, often in jest, about having Italian heritage or being an American, or by speaking critically or impolitely of certain religions or religious practices, whether in person or via the internet. The plaintiff also cited examples of others who faced charges under § 53-37 for "using ugly words in public." The state countered that the statute's reference to "advertisement" meant that it covered only commercial speech—i.e., public notice or paid promotion of things marketed for sale. Thus, the state contended that because the plaintiff lacked a legitimate fear of enforcement as against his private remarks, he lacked standing to challenge the statute.
The district court certified the statutory question to the Connecticut Supreme Court under Conn. Gen. Stat. § 51-199b(d), which permits any "court of the United States" to do so "if the answer may be determinative of an issue in pending litigation in the certifying court and if there is no controlling appellate decision." As this provision makes clear, any federal court—including, as in Cerame, a district court—may certify a potentially case-dispositive question of law to the Connecticut Supreme Court. Thus, in federal litigation, Connecticut provides greater flexibility for certification than do some other states—including New York—which authorize certification only from a federal appellate court. And in Connecticut, certification is a well-established and routinely used means of having the state's Supreme Court weigh in on novel and important state-law questions that are distinctly within that court's expertise and outside a federal court's power conclusively to resolve.
In Cerame, the Supreme Court accepted the certified question and concluded that "§ 53-37 was not intended to encompass the type of personal, noncommercial speech alleged in the plaintiff's complaint." The court initially deemed the statute's reference to "advertisement" to be ambiguous: relevant dictionaries defined the phrase merely in terms of public-facing notice, and other state statutes of that era used the phrase to contemplate either commercial or political announcements. Breaking the tie, however, were contemporaneous newspaper articles revealing that § 53-37 was "proposed to target a specific, discriminatory commercial practice: the posting of signs outside a business establishment, especially places of public accommodation or amusement, indicating that members of certain ethnic, racial, or religious groups were not welcome." In practical effect, this interpretation worked more of a reinvention than a clarification of a statute that "has remained largely unchanged since its passage" in 1917.
An amicus brief filed by free-speech advocates catalogued numerous examples, some widely reported, of individuals' being charged for violating § 53-37 for hurling personal insults—but amici could not unearth any instance of past enforcement based on commercial advertising. The court expressly refused to give this enforcement history any weight in discerning legislative intent.
Nor did the court wade into whether § 53-37 may constitutionally apply to private or commercial speech. Indeed, the district court certified the statutory question precisely because the outcome the Supreme Court reached would determine the plaintiff's Article III standing and thus likely obviate any need to address the statute's constitutionality. For its part, the state argued that, in the certification context, the Supreme Court was limited to considering the statute's textual scope. And the court decided no more than that.
As a result, questions about the law's validity remain. Notably, the U.S. Supreme Court has held that the First Amendment bars the federal government from refusing to register trademarks that may be perceived as disparaging to racial or ethnic groups. Conceivably, Connecticut law could prohibit the commercial use in advertising of a trademark that federal law allows to be registered. More recently, a federal district court preliminarily enjoined a New York State statute mandating social-media platforms to maintain policies governing posts that "humiliate" or "vilify" persons based on many of the same characteristics listed in § 53-37. The district court there viewed as potentially indefinite the terms "humiliate" and "vilify"—which evoke the use of "ridicule" and "contempt" in § 53-37.
Whether Connecticut's law, as narrowed, can survive constitutional scrutiny must await another day. In the meantime, companies doing business here would do well to take heed of the statute. And when dealing with their own statutory questions, litigants should remember to use every tool in the interpretative arsenal—which includes both arguing from first principles and seeking certification where appropriate.
Copyright 2023. ALM Global, LLC. All Rights Reserved. Originally published by Connecticut Law Tribune, reprinted by permission.
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