In ‘Wall Street Journal,’ Reason’s Nick Gillespie Highlights Problems with Anti-Bullying Legislation

By April 2, 2012

In an opinion piece published in yesterday’s Wall Street Journal, Nick Gillespie discusses what he perceives to be the problems presented by the national focus on bullying. Among other observations, Gillespie, editor in chief of Reason.com, points out FIRE’s concerns about the federal Tyler Clementi Higher Education Anti-Harassment Act:

Last year, in response to the suicide of the 18-year-old gay Rutgers student Tyler Clementi, the state legislature passed "The Anti-Bullying Bill of Rights." The law is widely regarded as the nation’s toughest on these matters. It has been called both a "resounding success" by Steve Goldstein, head of the gay-rights group Garden State Equality, and a "bureaucratic nightmare" by James O’Neill, the interim school superintendent of the township of Roxbury. In Congress, New Jersey Sen. Frank Lautenberg and Rep. Rush Holt have introduced the federal Tyler Clementi Higher Education Anti-Harassment Act.

The Foundation for Individual Rights in Education has called the Lautenberg-Holt proposal a threat to free speech because its "definition of harassment is vague, subjective and at odds with Supreme Court precedent." Should it become law, it might well empower colleges to stop some instances of bullying, but it would also cause many of them to be sued for repressing speech.

Gillespie’s exactly right to highlight the First Amendment problems with this legislation, no matter how well-intentioned its authors might be. Gillespie’s quoting a piece about the Act I wrote for The Chronicle of Higher Education last April:

The legislation’s definition of harassment is vague, subjective, and at odds with Supreme Court precedent.

In its 1999 decision in Davis v. Monroe County Board of Education, the Supreme Court defined hostile-environment peer harassment as 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 exacting definition strikes an appropriate balance between protected speech and unprotected harassment—which is exactly why it has been cited for the past decade by colleges, courts, and the Department of Education’s Office for Civil Rights.

In contrast, the proposed legislation’s definition of harassment is vague and subjective. It 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."

While this may seem functionally similar to the Davis standard, it isn’t. For one, the bill’s definition fails to require that the allegedly harassing expression be "objectively offensive." Without this built-in "reasonable person" standard, whether or not speech is actionable harassment will effectively be determined by the most sensitive student on campus, no matter how unreasonably offended he or she may be by protected speech.

Making matters worse, the bill also fails to define what constitutes a "hostile or abusive educational environment," apparently leaving student-conduct administrators to determine whether or not speech is sufficiently "hostile" or "abusive" as they see fit. This newfound discretion would prove to be a curse to administrators: Fail to punish protected speech that an alleged victim deemed "hostile" enough to qualify as harassment, and risk a lawsuit from the accuser; punish speech that, despite being protected, seemed to create a "hostile" environment, and risk a lawsuit from the accused.

While the Tyler Clementi Higher Education Anti-Harassment Act has seemingly stalled in Congress, state anti-bullying legislation often includes similar problems. For example, New Jersey’s Anti-Bullying Bill of Rights is equally flawed when it comes to student speech, as Ive explained here on The Torch before.

Even better than my explanation, however, is the one authored by Brooklyn Law School Professor Derek Bambauer recently for Concurring Opinions. In assessing the law’s impact on First Amendment protections for students, Bambauer points out the fact that under New Jersey’s (again, well-intentioned) law, "a group of students who, on the bus ride home, sing ‘Blame Canada‘ from the film South Park: Bigger, Longer and Uncut, to the consternation of a classmate from Montreal" have committed "harassment / intimidation / bullying — regardless of whether our potential bullies intend to cause harm, or whether our singers know that their classmate is Canadian." Summarizing his argument, Bambauer writes:

First, the Anti-Bullying Bill of Rights has several aspects that are problematic from a First Amendment perspective — in particular, the overbreadth of its definition of prohibited conduct, the enforcement discretion afforded school personnel, and the risk of impingement upon religious and political freedoms. I argue that the legislation departs from established precedent on disruptions of the educational environment by regulating horizontal relations between students rather than vertical relations between students and the school as an institution / environment. Second, I believe we should be cautious about statutory regimes that enable government actors to sanction speech based on content. I suggest that it is difficult to distinguish, on a principled basis, between bullying (which is bad) and social sanctions that enforce norms (which are good). Moreover, anti-bullying laws risk displacing effective informal measures that emerge from peer production. 

I strongly recommend reading Bambauers piece in full. It’s the most lucid and thoughtful explanation of the free speech problems with New Jersey’s law that I’ve seen.

Gillespie’s WSJ op-ed has prompted some pushback online. Writing for Think Progess, Zack Ford criticizes Gillespie’s citation of FIRE’s free speech concerns:

It’s unsurprising that Gillespie shied away from discussing anti-LGBT bullying, which is where the "supposed crisis" is most exacerbated. According to GLSENs climate survey from 2009 (more recent than the data Gillespie cites), nine out of ten LGBT students experience anti-gay harassment at school. A new study released in January found that nearly half of students and teachers in elementary schools even hear language like "that’s so gay" on a regular basis. Instead, Gillespie invoked the Foundation for Individual Rights in Education (FIRE), a group that defends the religious free speech of students, often when it is anti-gay in nature. In other words, he’d rather highlight the work of those defending the bullies than those defending their victims.

Ford’s characterization of FIRE’s work is disappointingly incomplete. Of course FIRE defends "the religious free speech of students" — because we defend all free speech of all college students, period. FIRE is a proudly nonpartisan organization, and we defend speech regardless of its content. As our case archives demonstrate, we’ll defend student speech that mocks religion just as readily as we’ll defend student speech that promotes religion. And of course, we’ll defend LGBT groups, too.

When it comes to legislative responses to "bullying," FIRE asks that lawmakers recognize the existing standard for peer-on-peer harassment, which respects student speech while addressing the behavior we properly conceive of as bullying. As I wrote in the piece for the Chronicle:

Luckily, the problems with the legislation can be dealt with easily: The Davis standard should be written into the bill’s definition of harassment. That way the conflict between Congress and the courts can be avoided, student-speech rights can be protected, and truly harassing conduct can continue to be addressed. But even with that change, legislators and the general public should realize that new legislation isn’t always the answer. Remember, the unconscionable treatment of Tyler Clementi was already prohibited under both university policy and state criminal law.

So Ford’s shot at FIRE for our work "defending the bullies" seems to make the basic mistake of conflating the defense of free speech with support for the content of that speech. As David Hamlin of the ACLU explained back in 1978, when the ACLU was being pilloried for its defense of the free speech rights of neo-Nazis: "One of the difficulties the ACLU has always had is a kind of instant association with the client. … Every time we represent someone, people assume that we are supporting what they say, and not their right to say it." Discussing the necessity of defending even the most distasteful speech, Hamlin pointed out that "[m]ost of the causes we represent are unpopular, at least with someone. …  In one sense, everything we do is unpopular, in that not everyone agrees with everything we do. … We continue to represent the rights of even the most unpopular individuals."

Indeed, defending the rights of those with whom one doesn’t agree is a crucially important element of protecting free speech rights, on campus and elsewhere. Generally speaking, popular or sympathetic speech doesn’t need protection. But speakers with minority viewpoints do need protection, whether that speech be religious, political, or otherwise — and whether or not Ford (or you, or I) agrees with it. Defending the rights of minority speakers regardless of the content of their speech doesn’t mean FIRE is "defending the bullies." It means we’re doing the hard work of defending free speech on campus, and we’d be unable to do so if we only defended that speech we liked or agreed with.

Given the unfortunate trend of proposed or enacted legislation at both the state and federal level threatening student speech rights — no matter how well-intentioned those legislative efforts may be — our work is as necessary as ever.