FIRE Cited in University Policy, But Speech Code Gets It Wrong on ‘Cyberbullying’

By on August 16, 2012

In what may be a first, FIRE has been directly cited in a university policy regulating student expression. Northwestern State University (NSU) in Louisiana maintains a Student Handbook policy on "Cyberbullying" (PDF) that states, in relevant part: 

Cyberbullying involves the use of information technology (email, websites, social networking, internet messaging, or any other technology) for hostile behavior to harm or to upset others. A person cannot easily get away from cyberbullying since using email and the internet are everyday practices. For more information on bullying, visit the following sites:

[...]

http://the fire.org/article/12945.html

While we have a lot of experience analyzing speech codes and helping colleges and universities to revise them, actually being cited as a source for one is new territory for us. So are we flattered at the mention in this policy? Actually, no.  

That’s because, despite citing a FIRE Torch post discussing the problems with university restrictions on student speech, the policy in question violates students’ First Amendment rights. 

We rate NSU’s code as a "yellow light" policy in Spotlight, and it is one of several speech codes contributing to NSU’s overall yellow light rating. As is the case with most yellow light policies, it ambiguously and excessively regulates student expression and threatens constitutionally protected speech by inviting administrative abuse and arbitrary application. Specifically, it defines "cyberbullying," in pertinent part, as "the use of information technology … for hostile behavior to harm or to upset others." This is an extremely subjective and vague standard, as "hostile behavior" could mean virtually anything and is susceptible to varying interpretations by different individuals. This means that students’ online speech rights at NSU are at the mercy of how the ban on "hostile behavior" is interpreted by an administrator or a fellow student. 

Moreover, speech that merely "harms" or "upsets" another person is, absent more, typically entitled to constitutional protection. As the Supreme Court long ago declared, "a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." Terminiello v. Chicago, 337 U.S. 1, 4 (1949). By placing students’ speech rights in such jeopardy-for merely having a heated argument on Facebook, for instance, or for maintaining a website that someone else subjectively finds offensive-the policy likely creates a harmful chilling effect on student discourse at NSU.

Perhaps most disappointingly, the policy cites to a Torch post written by FIRE’s Will Creeley evidently without any understanding of the main thrust of that piece. In the piece, Will discussed the problems with the proposed "Tyler Clementi Higher Education Anti-Harassment Act." Echoing arguments FIRE had previously made, the Torch post pointed out that the proposed federal legislation (a) was redundant, given that student-on-student harassment and bullying are already prohibited under the law, and (b) threatened student speech rights in the college setting by using an expansive definition of peer harassment that was less stringent and speech-protective than the Supreme Court’s controlling standard. As Will wrote:

For the past 12 years, colleges and universities have been guided by the Supreme Court’s decision in Davis v. Monroe County Board of Education (1999), in which the Court held that peer-on-peer hostile environment harassment was conduct "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities." This is a very precise definition of harassment, and it allows for an appropriate balance between protected speech and unprotected harassment. 

Compare that definition of harassment with the one contained in last fall’s bill, which defines harassment as "acts of verbal, nonverbal, or physical aggression, intimidation, or hostility" that are "sufficiently severe, persistent, or pervasive so as to limit a student’s ability to participate in or benefit from a program or activity at an institution of higher education, or to create a hostile or abusive educational environment."

Nowhere in Will’s post is there any argument for defining bullying, cyberbullying, or peer harassment in less stringent terms than the Supreme Court’s Davis standard—let alone with a standard as problematic as "hostile behavior to harm or to upset others." As a result, we’re not quite sure why NSU cited Will’s post! To protect its students’ rights, NSU should abandon its unconstitutional definition of cyberbullying and replace it with the standard set forth in Davis

The good news is not only that Davis provides clear guidance on this issue but that NSU is not very far off from improving its Spotlight rating. The school is devoid of any "red light" speech codes, and only needs to revise a few yellow light policies in order to make these strides. FIRE would be happy to assist with this policy revision process and to celebrate such an accomplishment. We just wish the university had paid better attention to our writing the first time around.

Schools: Northwestern State University