President Biden’s latest nominee for the federal appeals court that oversees New York and Connecticut has suggested criminalizing speech against “oppressed groups” and led trainings that taught law school graduates about how “microaggressions” can “kill you.”
Maria Araujo Kahn, 58, an associate justice on Connecticut’s Supreme Court since 2017, could be confirmed by the Senate as soon as next week to the Second Circuit Court of Appeals, which takes cases from two-thirds of the tri-state area as well as Vermont.
In a 2020 opinion first reported by the Washington Free Beacon, Kahn joined with her Connecticut colleagues in upholding the breach of peace conviction of a white man who used a racial slur toward a black parking attendant who gave him a ticket.
Meditating on the so-called “fighting words” exception to the First Amendment — which applies to speech deemed likely to provoke violence — Kahn wrote: “The ultimate inquiry of the fighting words exception is whether a speaker’s words would reasonably result in a violent reaction by its intended recipient.”
“Considering the stereotypes associated with immutable characteristics of the addressee, however, produces discriminatory results,” she added. “… The overarching result is that groups of people that, for example, are stereotyped as docile due to their gender or ethnicity, or who have physical limitations due to their age or disability that prevents them from responding violently—the precise groups that face persistent discrimination—must endure a higher level of offensive speech before being afforded legal remedies that comport with our constitution.
“From the speaker’s perspective,” Khan lamented, “such a result allows him or her to more readily and viciously verbally assault certain oppressed groups without fear of criminal prosecution.”
Khan — who was born in Angola to Portuguese parents, immigrated to the US when she was 10, and holds degrees from NYU and Fordham Law — is also an occasional diversity consultant and has headed seminars for newly minted lawyers on topics like “culture competence” and “racial anxiety,” according to a Senate Judiciary Committee questionnaire.
One such training, at Fordham Law, forced attendees to watch an animated video titled “How Microaggressions Are Like Mosquito Bites.” The video opened with an enormous mosquito telling a non-white college student to “try a less challenging major” before sucking the life out of him, according to the Free Beacon.
“Some mosquitoes carry truly threatening diseases that can mess up your life for years,” the video states. “And other mosquitoes carry strains that can even kill you.”
In one scene, a black woman blowtorches some mosquitoes after they ask to touch her hair.
Another scene shows the aftermath of a shooting, with a gun-toting mosquito telling police officers at a crime scene that he “felt threatened” and had shot someone who “looked like he was up to trouble.”
Kahn’s nomination was reported out of the Senate Judiciary Committee Feb. 2 by a vote of 11-9. Sen. Lindsey Graham (R-SC) joined the committee’s 10 Democrats in supporting the justice.
The Second Circuit has weighed in on a number of notable free speech cases in recent years, including a 2019 decision that found then-President Donald Trump could not block his detractors on Twitter.