Cerame v. Lamont ( 2023 )

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MARIO CERAME v. EDWARD LAMONT, JR., ET AL.
(SC 20755)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Ecker and Alexander, Js.*
Syllabus
Pursuant to statute (§ 53-37), ‘‘[a]ny 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 guilty of a class D misde-
meanor.’’
The plaintiff sought injunctive and declaratory relief against the defendants,
the governor of the state of Connecticut and the chief state’s attorney,
in the United States District Court for the District of Connecticut. The
plaintiff specifically sought to permanently enjoin the enforcement of
§ 53-37 on the ground that it violates his constitutional right to free
speech. In his complaint, the plaintiff alleged that he engages in certain
speech that falls within the scope of the statute, including ridiculing
others on the basis of their race, religion, creed, color, nationality, or
denomination in order to express comradery and in the course of play
with his closest friends and sometimes does so in open forums or on
the Internet. He also alleged that he ridicules or holds up to contempt
American nationals or persons of Italian heritage in his personal life,
criticizes and ridicules Scientology and religious practices he considers
harmful to society, sometimes uses racial slurs or impolite terms for
individuals of certain religious denominations in his work as a free
speech advocate, and republishes comedic material ridiculing others on
the basis of their race, religion, creed, color, nationality, or denomina-
tion. The defendants moved to dismiss the action for lack of subject
matter jurisdiction, claiming, inter alia, that the plaintiff lacked standing
because he failed to allege an injury in fact, that is, that he faces a
credible threat of prosecution under § 53-37. Thereafter, the District
Court, pursuant to statute (§ 51-199b (d)), certified to this court the
question of whether the speech alleged in the plaintiff’s complaint comes
within the scope of the phrase ‘‘by his advertisement,’’ as used in § 53-37.
Held that § 53-37 did not apply to the speech alleged in the plaintiff’s com-
plaint because that speech did not constitute an ‘‘advertisement,’’ as
that term is used in the statute:
This court concluded that the phrase ‘‘by his advertisement’’ in § 53-37
did not plainly and unambiguously limit the scope of the statute to
commercial speech because, although the common meaning of the term
‘‘advertisement’’ when the statute originally was enacted in 1917 and the
use of that term in other contemporaneous statutes suggested that the
legislature intended to restrict the meaning of that term to commercial
speech, in some other circumstances, the legislature understood the
term to extend beyond purely commercial speech, specifically in the
context of election law.
Nonetheless, the legislature’s intent, as revealed by the circumstances
giving rise to the passage of the statute in 1917 and contemporaneous
newspaper articles reporting that the legislation was proposed to target
the specific, discriminatory commercial practice pursuant to which
places of public accommodation or amusement would post signs outside
of their business establishments indicating that members of certain eth-
nic, racial, or religious groups were not welcome, demonstrated that the
legislature did not intend § 53-37 to encompass the type of personal,
noncommercial speech alleged in the plaintiff’s complaint but, rather,
intended to restrict the statute’s scope to purely commercial speech.
Argued January 13—officially released April 11, 2023
Procedural History
Action for declaratory and injunctive relief pertaining
to the alleged violation of the plaintiff’s constitutional
right to free speech, brought to the United States District
Court for the District of Connecticut, where the defen-
dants filed a motion to dismiss; thereafter, the court, Hall,
J., certified a question of law to this court concerning
the applicability of General Statutes § 53-37 to the plain-
tiff’s speech.
Mario Cerame, self-represented, the appellant (plain-
tiff), with whom was Ikechukwu Ubaike, certified legal
intern.
Timothy F. Costello, supervisory assistant state’s attor-
ney, with whom, on the brief, were Janelle Medeiros and
Lisamaria T. Proscino, assistant attorneys general, and
Thadius L. Bochain, former assistant state’s attorney, for
the appellee (defendant Patrick J. Griffin).
Zachary J. Phillipps filed a brief for the Foundation
for Individual Rights and Expression et al. as amici curiae.
Opinion
ALEXANDER, J. The sole issue in this case, which
comes to us on certification from the United States Dis-
trict Court for the District of Connecticut; see General
Statutes § 51-199b (d); is whether the speech alleged in
the complaint of the plaintiff, Mario Cerame, comes within
the scope of the phrase ‘‘by his advertisement,’’ as used
in General Statutes § 53-37.1 Because the plaintiff’s com-
plaint does not allege any speech constituting an ‘‘adver-
tisement,’’ we conclude that § 53-37 does not apply.
The plaintiff brought this preenforcement action as a
self-represented party against Governor Edward Lamont,
Jr., and Chief State’s Attorney Patrick J. Griffin,2 alleging
that § 53-37 violates his right to free speech under the
first and fourteenth amendments to the United States
constitution. He sought declaratory and injunctive relief,
specifically seeking to permanently enjoin the enforce-
ment of § 53-37, which provides that ‘‘[a]ny 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 guilty of a class
D misdemeanor.’’ The defendants moved to dismiss the
action for lack of subject matter jurisdiction, claiming,
inter alia, that the plaintiff lacked standing under article
three of the United States constitution because he had
failed to allege an injury in fact.3 See, e.g., Susan B.
Anthony List v. Driehaus, 573 U.S. 149, 157–58, 134 S.
Ct. 2334, 189 L. Ed. 2d 246 (2014) (‘‘[t]o establish [a]rticle
[three] standing, a plaintiff must show (1) an ‘injury in
fact,’ (2) a sufficient ‘causal connection between the injury
and the conduct complained of,’ and (3) a ‘likel[ihood]’
that the injury ‘will be redressed by a favorable deci-
sion’ ’’).
The District Court observed in its certification order
that, because the plaintiff did not allege that the state
has attempted to enforce § 53-37 against him, he must
allege that he faces a ‘‘ ‘credible threat of prosecution’ ’’
under that statute in order to demonstrate that he has
suffered an injury in fact for purposes of article three
standing. Cerame v. Lamont, Docket No. 3:21cv1508
(JCH), 2022 WL 2834632, *2 (D. Conn. July 20, 2022);
see Susan B. Anthony List v. Driehaus, supra, 573 U.S.
159 (‘‘we have held that a plaintiff satisfies the [injury
in fact] requirement whe[n] he alleges an intention to
engage in a course of conduct arguably affected with
a constitutional interest, but proscribed by a statute,
and there exists a credible threat of prosecution there-
under’’ (emphasis added; internal quotation marks omit-
ted)). Because the parties disagree as to whether the
speech alleged in the plaintiff’s complaint is proscribed
by § 53-37, and because neither this court nor the Appel-
late Court has interpreted § 53-37, the District Court
certified to this court the question of whether the statute
applies to the plaintiff’s alleged speech. Cerame v.
Lamont, supra, *3.
In his complaint, the plaintiff alleges that he engages
in the following speech: ‘‘With his closest and dearest
friends . . . to express comradery and as part of play,’’
he ‘‘ridicule[s] others on the basis of their race, religion,
creed, color, nationality, or denomination,’’ and some-
times he does so in open forums or on the Internet; he
ridicules or holds up to contempt ‘‘American nation-
al[s]’’ and persons of Italian heritage; ‘‘[i]n his personal
life,’’ he criticizes and ridicules Scientology and reli-
gious practices he deems ‘‘harmful to society’’; in advis-
ing others on free speech rights, he sometimes uses
‘‘racial slurs or impolite terms for individuals of certain
religious denominations’’; and he republishes and adopts
as his own, orally or in video clips, material of comedi-
ans ridiculing others ‘‘on the basis of race, religion,
creed, color, denomination, or nationality.’’ (Empha-
sis omitted.)
The issue presented, whether § 53-37 applies to such
speech, presents a question of statutory interpretation,
over which we exercise plenary review. See, e.g., Wind
Colebrook South, LLC v. Colebrook, 344 Conn. 150, 161,
278 A.3d 442 (2022). ‘‘When construing a statute, [o]ur
fundamental objective is to ascertain and give effect to
the apparent intent of the legislature. . . . In other
words, we seek to determine, in a reasoned manner,
the meaning of the statutory language as applied to the
facts of [the] case, including the question of whether
the language actually does apply. . . . In seeking to
determine that meaning, General Statutes § 1-2z directs
us first to consider the text of the statute itself and its
relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield
absurd or unworkable results, extratextual evidence of
the meaning of the statute shall not be considered.’’
(Internal quotation marks omitted.) Winakor v. Savalle,
343 Conn. 773, 781, 276 A.3d 407 (2022).
The defendant contends that, in restricting the appli-
cation of § 53-37 to speech by one’s ‘‘advertisement,’’
the legislature’s intent was to limit the statute’s scope
to commercial speech. The plaintiff conceded during
oral argument before this court that the defendant’s
definition—that the term ‘‘advertisement,’’ as used in
§ 53-37, is limited to the marketing or sale of goods,
products, or services—is ‘‘historically correct, vis-à-vis
how the statute was written in 1917.’’4 For the reasons
that follow, we conclude that § 53-37 does not apply to
the speech alleged in the plaintiff’s complaint.
Our analysis begins with the language of § 53-37. The
statute prohibits the ridicule or holding up to contempt,
by one’s advertisement, of any person or class of per-
sons on account of creed, religion, color, denomination,
nationality, or race. General Statutes § 53-37. It does
not criminalize all speech that ridicules persons or holds
them up to contempt on the basis of race and the other
listed classifications. Instead, in order to fall within the
ambit of § 53-37, a person must ridicule or hold up for
contempt a person or class of persons on account of
creed, religion, color, denomination, nationality, or race
‘‘by his advertisement . . . .’’ General Statutes § 53-37.
The key question presented, accordingly, is the scope
of the phrase ‘‘by his advertisement.’’
Because § 53-37, which originally was enacted as
chapter 202 of the 1917 Public Acts and codified at
General Statutes (1918 Rev.) § 6210, does not define
the term ‘‘advertisement,’’ it is appropriate to consult
contemporaneous dictionary definitions. See, e.g., Led-
yard v. WMS Gaming, Inc., 338 Conn. 687, 697, 258 A.3d
1268 (2021) (‘‘in the absence of statutory definitions,
we look to the contemporaneous dictionary definitions
of words to ascertain their commonly approved usage’’);
see also General Statutes § 1-1 (a) (‘‘[i]n the construc-
tion of the statutes, words and phrases shall be con-
strued according to the commonly approved usage of
the language’’).
Contemporaneous dictionary definitions narrow the
meaning of the term ‘‘advertisement’’ to a notice, partic-
ularly a paid notice, communicated through the public
media available in the early twentieth century. One such
dictionary defines ‘‘advertisement’’ as ‘‘[a] notice or an
announcement made public by handbill, placard, or sim-
ilar means, or, as formerly, by proclamation, as by a
town crier; specifically, a paid notice of any kind
inserted in a newspaper or other public print.’’ 1 The
Century Dictionary and Cyclopedia (Rev. & Enlarged
Ed. 1911) p. 88. A second dictionary likewise defines
‘‘advertisement’’ as ‘‘[n]otice given in a manner designed
to attract public attention; information communicated
to the public, or to an individual concerned, by means
of handbills or the newspaper.’’ Black’s Law Dictionary
(2d Ed. 1910) p. 43. Yet another defines the term as ‘‘[a]
public notice, [especially] in public print.’’ Webster’s
Collegiate Dictionary (3d Ed. 1916) p. 17.
The defendant contends that the use of the term
‘‘advertisement’’ in other statutes in the 1918 revision of
the General Statutes demonstrates that the legislature
used the term in a narrow sense to refer specifically to
commercial speech. Our review reveals that the use of
the term in other statutes supports the conclusion that
the legislature intended to restrict the meaning of
‘‘advertisement’’ to commercial speech.
As the defendant observes, the legislature used the
term ‘‘advertisement’’ when referring both to the post-
ing or distribution of material through media common
to commercial speech in the early twentieth century
and to any media, such as signage, presenting goods
or services for sale, thus suggesting that it viewed the
term to refer to commercial speech. See, e.g., General
Statutes (1918 Rev.) § 3024 (‘‘[n]o person shall display
any advertisement containing more than four square
feet upon real property other than the property upon
which the goods advertised are manufactured or offered
for sale, or upon which the business advertised is car-
ried on in whole or in part, until such person shall
secure from the superintendent of state police a license
to display such advertisement’’); General Statutes (1918
Rev.) § 6516 (proscribing any ‘‘person, firm, corporation
or association, or employee thereof’’ from knowingly
making ‘‘any false statement in any advertisement pub-
lished in a newspaper or circular, or on any card, sign,
bill board, label or other advertising medium concern-
ing the nature, quality, method of production or manu-
facture, or cost of any goods or merchandise offered
for sale’’ (emphasis added)).
Statutes at the time also frequently included the term
‘‘advertisement’’ as one among multiple terms in a dis-
junctive list. See, e.g., General Statutes (1918 Rev.)
§ 6299 (‘‘[e]very person who shall wilfully destroy or
deface any advertisement, handbill, poster or notice,
upon any private billboard, shall be fined’’); General
Statutes (1918 Rev.) § 6467 (statute fining ‘‘[a]ny person
who in any manner for exhibition or display, puts or
causes to be placed any inscription, picture, design,
device, symbol, name, advertisement, word, character,
mark or notice upon any flag . . . of the United States
or state flag of this state’’). As the defendant notes, the
inclusion of the term ‘‘advertisement’’ in these disjunc-
tive lists suggests that the legislature understood an
advertisement to be ‘‘distinct from a broader array of
speech.’’
We observe, however, that General Statutes (1918
Rev.) §§ 673 and 674 employ a related term, ‘‘advertis-
ing,’’ in the context of election law. Section 673 allowed
a candidate for public office to ‘‘pay his own expenses
for postage, telegrams, telephoning, stationery, print-
ing, the advertising in or distribution of newspapers
being excepted, expressage and traveling . . . .’’ Gen-
eral Statutes (1918 Rev.) § 673. Section 674 authorized
a political campaign’s ‘‘treasurer or political agent’’ to
pay expenses, including for the ‘‘advertising’’ of political
meetings and parades. General Statutes (1918 Rev.)
§ 674. These statutes suggest that, in some circum-
stances, the legislature understood the term ‘‘advertise-
ment’’ to extend beyond purely commercial speech. The
legislature’s use of the term ‘‘advertising’’ in this distinct
manner leads us to conclude that the phrase ‘‘by his
advertisement’’ in § 53-37 does not plainly and unambig-
uously limit the scope of the statute to commercial
speech.
Any doubt regarding the legislature’s intent is
removed by an examination of the circumstances giving
rise to the passage of chapter 202 of the 1917 Public
Acts, titled ‘‘An Act Concerning Discrimination at
Places of Public Accommodation.’’5 Contemporaneous
newspaper articles reveal that the legislation was pro-
posed to target a specific, discriminatory commercial
practice: the posting of signs outside a business estab-
lishment, especially places of public accommodation or
amusement, indicating that members of certain ethnic,
racial, or religious groups were not welcome.6 See, e.g.,
‘‘Senate Business,’’ Meriden Daily Journal, January 23,
1917, p. 1 (stating that Senator Frederic Bartlett’s pro-
posed measure would impose fine and/or imprisonment
for ‘‘discrimination against any nationality, sect, creed
or class in places of public accommodation or amuse-
ment’’); ‘‘Would Abolish Discrimination Notice Custom:
Bartlett Introduces Bill to Ban ‘No __ Wanted’ Litera-
ture,’’ Bridgeport Evening Farmer, January 23, 1917, p.
1 (noting that proposed legislation would prohibit ‘‘the
posting of signs, or advertising by hotels, barber shops,
etc., which discriminate against any sect, color or nation-
ality’’). This uncontroverted evidence demonstrates that
§ 53-37 was not intended to encompass the type of per-
sonal, noncommercial speech alleged in the plaintiff’s
complaint.
The answer to the certified question is: No.
No costs shall be taxed in this court to either party.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Robinson and Justices McDonald, D’Auria,
Mullins, Ecker and Alexander. Although Justice McDonald was not present
at oral argument, he has read the briefs and appendices, and listened to a
recording of the oral argument prior to participating in this decision.
1
Consistent with our authority under § 51-199b (k), we have slightly
reformulated the certified question posed by the District Court: ‘‘Does the
speech alleged in [the plaintiff’s] [c]omplaint (paragraphs 13–18) come
within the scope of the phrase ‘by his advertisement’ as that phrase is used
in [§] 53-37 . . . ?’’ Cerame v. Lamont, Docket No. 3:21cv1508 (JCH), 2022
WL 2834632, *7 (D. Conn. July 20, 2022).
2
When the plaintiff filed his complaint on November 10, 2021, Richard J.
Colangelo, Jr., was the chief state’s attorney for Connecticut. In its certifica-
tion order, the District Court took judicial notice that, ‘‘on March 31, 2022,
Colangelo retired and, on May 12, 2022 . . . Griffin assumed the role.’’
Cerame v. Lamont, Docket No. 3:21cv1508 (JCH), 2022 WL 2834632, *1 n.1
(D. Conn. July 20, 2022). The District Court also observed that the plaintiff
had withdrawn the action as to the governor and that the parties disputed
whether Griffin was a proper party to the action. Id., *2 n.2. In the interest
of simplicity, we refer in this opinion to Griffin as the defendant.
3
The defendant also claimed that the eleventh amendment to the United
States constitution barred the action.
4
The plaintiff argues that, because § 53-37 has never been enforced against
commercial speech, this court should rely on anecdotal instances of its
alleged enforcement against noncommercial speech in construing the stat-
ute. Even if we assume that the plaintiff is correct regarding the statute’s
enforcement, such enforcement is irrelevant to discerning the intent of the
legislature, which is the sole task of statutory construction. See, e.g., Wind
Colebrook South, LLC v. Colebrook, supra, 344 Conn. 161. As we have recently
held, and the defendant reminds us in his supplemental authority letter; see
Practice Book § 67-10; ‘‘for purposes of determining legislative intent . . .
the past practice of prosecutors is not a relevant factor under § 1-2z . . . .’’
State v. Douglas C., 345 Conn. 421, 455, 285 A.3d 1067 (2022). The plaintiff
offers no theory as to how the alleged instances of enforcement reveals
legislative intent and admitted during oral argument that he was unaware
of any case in which an individual charged with or convicted of violating
§ 53-37 claimed that the statute violated that individual’s free speech rights.
Moreover, the plaintiff does not look to the statutory language or, to the
extent that such language is ambiguous, to the statute’s legislative history
and other relevant extratextual resources to discern the statute’s scope.
5
As the defendant points out, § 53-37 has remained largely unchanged
since its passage in chapter 202 of the 1917 Public Acts. The sole substantive
amendment to the statute was in 2012, when the legislature reclassified
various misdemeanor offenses. At that time, the offense set forth in § 53-
37 was redefined as a class D misdemeanor. See Public Acts 2012, No. 12-
80, § 100.
6
This court may take judicial notice of newspaper articles and has relied
on such sources as evidence of legislative intent when appropriate. See,
e.g., Mahoney v. Lensink, 213 Conn. 548, 562 and n.20, 569 A.2d 518 (1990).