In response to her memo urging colleges to include "cyber-harassment" and "bullying" in their codes of student conduct, FIRE, the Student Press Law Center (SPLC), and the New Jersey Chapter of the Society of Professional Journalists (SPJ) have co-signed a letter today to Attorney General of New Jersey Anne Milgram. Milgram’s office announced on August 26, 2008, that Milgram had sent a letter to colleges and universities across the state arguing that school administrators "have a role to play in reducing inappropriate content, conduct, and contact on the Internet."
The key problem with Milgram’s campaign against "cyber-bullying" is that directives against "bullying" issued by colleges or universities are likely to be stated so vaguely and with such overbreadth that they will chill or prohibit wide swaths of constitutionally protected speech. Moreover, "cyber-bullying" that constitutes true harassment is, of course, already prohibited by existing law and campus policies. By encouraging campuses to enact vague and overbroad restrictions like a prohibition against "bullying," it almost seems as though Milgram is unaware of the precedential Third Circuit decision in DeJohn v. Temple University, which declared unconstitutional the school’s now-abandoned speech code, and which creates a significant legal risk for institutions and administrators in the circuit that promulgate unconstitutional regulations on expression. (The Third Circuit includes New Jersey.)
Milgram’s main target is JuicyCampus.com, a website that features anonymous postings organized by college. Some of the material there is not protected by the First Amendment—not because it "bullies," but because it is truly defamatory (unless, of course, it is true). Most of the material, like it or not, is protected. But this hasn’t stopped Milgram from launching a roundabout investigation of JuicyCampus under the New Jersey Consumer Fraud Act. To Milgram, it was apparently a legal problem that "Postings on JuicyCampus.com include uncomplimentary references to the physical characteristics, race, ethnicity and implied sexual experiences of students" because such postings seemed inconsistent, to her, with the site’s requirement at the time that users "not post content that is abusive, obscene or invasive of another’s privacy." (The current terms and conditions are now different, it seems.)
In response to Milgram, the letter sent by FIRE, the SPLC, and the New Jersey SPJ states in part:
We have reviewed your August 26 letter to New Jersey college and university administrators, and we are aware of your plans to meet with administrators on November 14 to discuss your concerns about the use of the Internet to communicate harmful speech. After reviewing your written instructions, we are concerned that they fail to provide the clear and specific constraints necessary to prevent colleges from censoring legitimate and constitutionally protected speech. [...]
"[B]ullying" is not a defined legal term of art. An open-ended directive to colleges to enact codes of conduct that punish the use of computers for "bullying" will invariably cause some administrators to penalize lawful speech that falls within the protection of the First Amendment. There is a difference–qualitatively, and constitutionally–between speech that threatens versus that which merely causes hurt feelings.
Following decades of similar First Amendment jurisprudence, the Supreme Court reiterated just last year in Morse v. Frederick that mere "offensiveness" is never a constitutionally adequate justification to censor or penalize speech–even in the setting of on-campus speech at the high school level. The protection for speech enjoyed by college-aged audiences is undoubtedly even more robust, as the Third Circuit reaffirmed in its recent decision, DeJohn v. Temple University, invalidating a college speech code.
In DeJohn, the Third Circuit struck down as vague and overbroad a campus speech code that encompassed within its prohibitions "hostile" and "offensive" speech. The court emphasized that "[u]nder the Supreme Court’s rule in Tinker, a school must show that speech will cause actual, material disruption before prohibiting it." The Temple speech code fell short of that constitutional standard because it penalized speech based on a mere intent to harass or to disrupt the work of others, even if there was no evidence that the speech had any disruptive effect: "[U]nless harassment is qualified with a standard akin to a severe or pervasive requirement, a harassment policy may suppress core protected speech."
If cyberbullying is to be recognized as a new and distinct basis for discipline, colleges must be given unambiguous legal standards to apply so that protected speech is not swept up in the cyberbullying dragnet. As the Supreme Court has explicitly recognized for over four decades, colleges are places in which the free and open exchange of ideas–even controversial and at times disturbing ideas–is to be nurtured. If colleges are free to penalize any hurtful or upsetting speech as bullying, then the editorial commentator whose opinion is challenging to others’ religious, social or political views could face punishment as a "bully." The mere uncertainty of what constitutes punishable speech will invariably cause speakers to self-censor lawful commentary, resulting in an impermissible and unconstitutional chilling effect on campus.