Connecticut's Free Speech Clauses: a Framework and an Agenda

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 65 Pg. 437
Connecticut Bar Journal
Volume 65.




In 1982, 1 participated in a state constitutional law symposium, sponsored jointly by the University of Connecticut School of Law and the Connecticut Civil Liberties Union. Though it was formally called a symposium, it might more aptly have been styled a celebration. The Connecticut Supreme Court had recently issued an extraordinary series of decisions, broadening the content of various state constitutional provisions far beyond the federally mandated minimum.(fn1) To many of us on the program, it appeared that independent state constitutional interpretation had become some sort of serendipitous happening, a veritable constitutional flower revolution; that the Justices were waiting, with benevolent smiles, for counsel to suggest new constitutional rights that they could "discover" and expand.

We have absorbed some harsh lessons since those days. State constitutional interpretation is not a happening. It is not a flower revolution. It is an incessant, grinding battle; it has to be fought out yard by tedious yard. The aim of this paper is to reconnoitre, and report back upon, one segment of that battlefield: Connecticut's free speech clauses.(fn2)

One point must be stressed at the outset. Despite contrary appearances, neither the Connecticut Supreme Court nor the Appellate Court has authoritatively determined whether Connecticut's free speech protections are broader than those of the federal First Amendment. In Cologne v. Westfarms Assocs.,(fn3) the Court merely held that those protections, whatever they may be, do not apply to the private sector. In Dydyn v. Division of Liquor Control,(fn4) the Court discussed the impact of the federal Twenty-first Amendment upon Connecticut free speech guarantees; it too did not address just what these guarantees encompass. In State v. Andrews,(fn5) the Court did say that the state and federal speech clauses had the same meaning, at least as to obscenity, but Andrews was decided before the Court embarked upon independent interpretation in Horton(fn6) and Fasulo(fn7) besides, no serious argument for independent interpretation appears to have been made. Similarly, the Court has recently written, in Caldor, Inc. v. Heslin(fn8) : "In determining the protection afforded commercial speech by the state constitution, we are guided by the U.S. Supreme Court's decisions in this area"(fn9) - but in Heslin, as in Andrews,(fn10) the independent interpretation argument does not appear to have been seriously pressed or considered, and "guided" is in any event an ambiguous (perhaps deliberately ambiguous) expression.(fn11)

What is more, the Connecticut Supreme Court has intimated a readiness to embark upon independent interpretation should the right opportunity arise and the issue be properly framed. In Barrett v. Burns,(fn12) the Court confined its analysis to federal constitutional law, noting that though a state constitutional claim had been made, the claim had not been adequately briefed. This was, however, no cursory brush-off; instead, the Court pointedly observed: "The defendant has not in his brief argued that the textual differences between our state and federal freedom of speech provisions are of any particular significance in this case."(fn13) As I shall demonstrate in the body of this article, the Court appears to have chosen its words carefully, and Barrett, a commercial speech case, was an excellent vehicle for putting the proposition to the test.

The remainder of the article is divided into two sections. The first section examines the various tools of state constitutional analysis and considers how these tools might apply to speech issues. The second section identifies particular speech issues, in Connecticut, that seem especially ripe for state constitutional development.


A. The Oregon Approach and its Application to Connecticut

The text of Connecticut's art. I, § 4, differs markedly from the First Amendment, not only in its omission of any explicit state action limitation, but also in its promise that "Every citizen may freely speak, write and publish his sentiments on all subjects (emphasis added)." Connecticut adheres to the well-established presumption that constitutional language is not used haphazardly.(fn14) Thus, textual differences between the state and federal speech clauses cannot be ignored.

At the same time, while such differences may facilitate independent interpretation, they do not require it. Plaintiffs counsel discovered this the hard way in Cologne, where the Court stated curtly that the absence of state action language in art. I, § 4 was "not ... sufficient to allow [speech] rights to be exercised" at privately owned shopping centers.(fn15) As Cologne makes clear, constitutional text merely creates opportunities.(fn16) In order to take full advantage of those opportunities, one must examine other referents.

One important referent is sibling-state authority, especially sibling-state authority with similar constitutional language.(fn17) Here, the search is neither arduous nor long. Oregon, where OR. CONST. art. I, § 8, protects speech on "any subject whatever," has a well-developed and well-received body of case law that interprets this phrase.

Oregon holds, quite simply, that the phrase means exactly what it says. In Oregon, there are - with but one exception - no categories of unprotected speech, and no hierarchies of protected speech, as there are in federal constitutional law. All speech is deemed to be of equal value, including speech that commands little or no protection under the First Amendment. Thus, obscenity is fully protected.(fn18) So are "fighting words," i.e. profane invective directed to the person of the listener.(fn19) Significantly, in light of the Connecticut Supreme Court's comment in Barrett, commercial speech is fully protected as well.(fn20)

The lone exception, in Oregon, is derived from yet another tool of constitutional analysis, one which Connecticut courts have likewise recognized. That tool is history.(fn21) Oregon courts will find speech unprotected only if the speech was already prohibited when the Oregon Constitution was promulgated in 1859. The prohibited categories include, for instance, criminal solicitation, perjury, forgery, and fraud.(fn22) Ackerley emphasizes that, in order to avoid the exception, the speaker need not show that the framers of the Oregon Constitution intended to protect the type of speech in question; all that is necessary is to establish that the speech was not forbidden.(fn23)

The Oregon approach has not gone unnoticed. Two Maine Supreme Court justices, citing the "any subject" language of the Maine Constitution,(fn24) have urged their brethren to adopt it;(fn25) though the majority declined to do so on that occasion, the opinion evinces a willingness to reconsider in other circumstances.(fn26) Two Pennsylvania trial courts have refused to protect obscenity under that state's "any subject" language(fn27) - but only because obscenity had been prosecuted in Pennsylvania as long ago as 1815, nearly 60 years before the Pennsylvania Constitution was adopted.(fn28) California has held that commercial fortune telling is "speech" under a state constitutional provision that protects speech on "all subjects."(fn29)' While the decision was not explicitly based on that phrase (the court, instead, quoted the section in its entirety), there can be little doubt that the expression played a critical role.

The Oregon technique, if used in Connecticut, would leave obscenity unprotected, just as it is today.(fn30) In Connecticut, unlike Oregon, the dissemination of obscene materials has been a crime since 1803, fifteen years prior to the enactment of the 1818 Constitution.(fn31) Thus, Oregon's "historical exception" principle would apply.

The status of the "fighting words" doctrine would be less certain. The principal mechanism for punishing the use of fighting words, in Connecticut, is CoNN. GEN. STAT. 53a-181 (Breach of peace). Relevant subsections of the statute prohibit the exhibition or posting of any 11 offensive, indecent or abusive matter concerning any person,"(fn32) or the use, in a public place, of "abusive" language.(fn33) Modem Connecticut courts have repeatedly construed these subsections as limited, in their application to speech, to expressions that fall within the "fighting words" category.(fn34)

The predecessor statute to CONN. GEN. STAT. 53a-181a dates back to 1672.(fn35) In pertinent part, it forbade "traducing, quarreling [with] or challenging" any person in public. "Traduce," in particular, at first impression resembles "abuse." In addition, a law against "cursing" existed as early as 1650.(fn36) Since both statutes were apparently still in effect in 1818, the historical exception test seems satisfied.

On closer scrutiny, though, this is not so clear. "Traduce," then as now, did not mean to hurl invective at someone, as the fighting words doctrine requires. Rather, it meant to "calumniate,"i.e., to slander.(fn37) And to "curse" did not mean to swear at someone, as it can mean today. Its sole meaning, at least as late as the early nineteenth century, was to wish evil to another person, in the sense of calling down divine wrath upon that person.(fn38) Arguably, therefore, the modem prohibition of "fighting words" had no pre-constitutional counterpart.

Whatever the status of fighting words, however, the status of commercial speech is very clear indeed. Since there is no evidence that commercial speech was subject to prohibition or regulation in Connecticut at any time prior to 1818, such speech, under an Oregonstyle approach, would command as much protection as the most pristine political...

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