In December 2013, the Rutherford Institute filed a federal lawsuit (PDF) arguing that state officials in New Jersey violated a student’s First Amendment rights when they enforced the state’s anti-bullying statute against him for truthfully stating that another student had head lice. This week, the Institute filed a brief (PDF) opposing the New Jersey Commissioner of Education’s motion to dismiss the case.
FIRE has written before about the ramifications New Jersey’s Anti-Bullying Bill of Rights (ABBR) has for free expression. The statute prohibits, among other things, speech that “has the effect of insulting or demeaning any student or group of students” or “will have the effect of physically or emotionally harming a student.” As we pointed out back in 2012:
New Jersey’s law fails to define “emotional harm” and gives students no way to predict what fellow students will perceive as “emotional harm.” Such highly subjective terms effectively leave the state’s adult college students guessing at what speech is and is not outlawed on campus. That kind of uncertainty leads to a chilling effect on speech, as rational students decide to self-censor rather than risk punishment.
In a symposium about the ABBR hosted by the Seton Hall Legislative Journal at Seton Hall School of Law, Brooklyn Law School Professor Derek Bambauer aptly noted the practical implications of the statute:
[S]ocial sanctions through criticism or opprobrium are powerful and often beneficial means of shaping behavior. Consider teen anti-smoking campaigns: peer pressure is an effective inducement to quit a harmful habit. Yet targeting someone for being a smoker counts as focusing on an “actual characteristic” under the anti-bullying law. The ABBR threatens to impede or punish individual and collective expression that can generate helpful shifts in behavior, from evincing greater toleration for people of different sexualities to political outreach. The difficulty is that there is no principled means to distinguish between social sanctions that enforce norms we like, and bullying that enforces norms we do not.
Rutherford Institute President John W. Whitehead commented on a problem that we see frequently in our cases here at FIRE:
What school officials conveniently seem to keep forgetting is that students do not shed their constitutional rights at the schoolhouse gate. … While we all want our schools to be safe, nurturing environments for our children, anti-bullying statutes—well-meaning as they may start out—are Orwellian in nature and inevitably run afoul of the Constitution’s protections for free speech and expression.
Check back to The Torch for updates on the case, Lim v. Board of Education of the Borough of Tenafly, and read more from the Rutherford Institute on its website.