FIRE has watched with growing concern as we have seen the idea of "bullying" expanded to cover more and more protected speech on college campuses. Now we’re on full alert. An "anti-bullying" bill, the "Tyler Clementi Higher Education Anti-Harassment Act of 2010," was introduced in Congress last week, and it gravely threatens free speech on America’s college campuses. While we suspect that the bill has the admirable intention of preventing future tragedies, FIRE has determined that it is at odds with the Supreme Court’s carefully crafted definition of harassment and would require colleges to violate the First Amendment.
In today’s press release, FIRE President Greg Lukianoff made a point that should not be overlooked. The bill’s namesake, Rutgerts student Tyler Clementi—who committed suicide after a video of him engaging in sexual activity with a man was streamed on the Internet by two students—was subjected to an unconscionable violation of privacy. But that conduct was already criminal and prohibited by every college in America. For decades, colleges have used vague, broad harassment codes to silence even the most innocuous speech on campus. The proposed law requires universities to police even more student speech under a hopelessly vague standard that will be a disaster for open debate and discourse on campus.
After Senator Frank Lautenberg and Representative Rush Holt introduced the bill, Senator Lautenberg declared that "it is time for our colleges to put policies on the books that would protect students from harassment." But such policies are already in place. For decades, colleges that receive federal funding have been required to maintain policies that address discriminatory harassment under Titles VI and IX of the Civil Rights Act of 1964.
Further, the bill, which would amend the Higher Education Act, flies in the face of that very law. When Congress reauthorized the Act in 2008, it added a "sense of Congress" provision noting that "an institution of higher education should facilitate the free and open exchange of ideas." FIRE was gratified to see that dedication to principle two years ago, which makes it even more worrying that Congress should now be contemplating a poorly considered law that holds the potential to quash the free exchange of ideas.
Why is the bill so potentially devastating to free speech? First, the bill redefines harassment in a manner that is at odds with the Supreme Court’s exacting definition of student-on-student harassment, which successfully balances the need to respond to extreme behavior with the importance of free speech on campus. In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Court defined student-on-student harassment as conduct that is "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 definition has been relied upon by courts for more than a decade and has been adopted by many institutions across the country, including the entire University of California system.
The proposed bill, on the other hand, removes the requirement that the behavior in question be objectively offensive. It defines harassment as conduct or speech "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 at an institution of higher education."
What’s missing? First, the "objectively offensive" language is gone. The loss of this crucial "reasonable person" standard means that those most interested in silencing viewpoints they don’t like will effectively determine what speech should be banned from campus. How will that work? It won’t be hard to demonstrate that controversial speech is, for instance, "persistent," for all that is needed is that a person with disfavored beliefs will refuse to abandon them under pressure.
The second problem is that this conduct must only "limit a student’s ability to participate in or benefit from a program or activity at an institution of higher education," rather than effectively deny them equal access, as the Supreme Court requires. "Limiting" the benefits of a college activity is an absurdly easy standard to meet. For instance, would noisy protesters outside a performance of The Vagina Monologues limit the benefits of going to that play? Probably. What about PETA protesters holding up depictions of slaughterhouse brutality in front of the cafeteria? Does that limit the benefit of eating lunch? It certainly would for me. Where does this stop? Nobody knows, including the authors of this bill.
Lest you think we are exaggerating, FIRE has mountains of evidence that unconstitutional definitions of "harassment" like that being promulgated by this bill have already provided the most commonly abused rationale justifying censorship. Among the activities deemed "harassment" are a Tufts University student magazine’s printing of true if unflattering facts about Islam, a Brandeis professor’s use of an epithet in order to explain its origins and condemn its use as a slur, and a student at an Indiana college’s choice of nonfiction reading material.
Such activities, far from "limiting" the college experience, actually benefit others on campus. The Supreme Court declared long ago that freedom of expression "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). As FIRE often points out, if you are never offended as a college student because no one ever challenges you to defend your beliefs, you are not getting a real education and you should ask for your money back.
Making matters worse, the bill also fails to define what constitutes a "hostile or abusive" educational environment, leaving that determination to college administrators. Unfortunately, FIRE’s extensive experience defending student speech demonstrates that college administrators are often incapable of enforcing unclear policies governing student speech either fairly or rationally. FIRE’s case archive provides hundreds of examples of students and faculty members who have faced censorship, investigation, or punishment for parody, satire, speaking out against campus policies or public figures, and discussing important issues facing our society through protest and even through art.
Because this bill has the potential to be such a powerful tool for censorship, it would likely be ruled unconstitutional were it to become law. Indeed, since 1989 there have been at least 16 successful challenges to campus codes that included similarly broad and vague harassment provisions. Every one of those lawsuits has resulted in the challenged policy either being declared unconstitutional or revised as part of an out-of-court settlement. If passed, the bill is likely to violate students’ rights while leading colleges into expensive, embarrassing, and unsuccessful litigation.
Online rights observers like me also have great reason to worry, since the bill requires university harassment policies to cover behavior that occurs online or off campus. This means campus jurisdiction over "harassment" would now extend to the entire earth, and presumably also to any students tweeting or Facebooking from outer space (it’s more likely than it sounds). In practice, this requirement is likely to compel universities to monitor student behavior in unprecedented ways—including close and comprehensive monitoring of social networking sites like Facebook and Twitter—in order to ward off potential lawsuits. And guess what: there are already people making money on programs that do just that! If this bill passes, expect to see their stock prices skyrocket while student freedom online shrinks commensurately.
FIRE has been successfully fighting the illiberal influence of speech codes at our nation’s colleges and universities for more than a decade. But this ill-considered bill threatens the significant progress made by FIRE and those students, faculty, alumni, and citizens who share our commitment to free speech on campus. Tyler Clementi’s death was a tragedy. It would be a greater tragedy still if it served as cover for a rollback of Americans’ fundamental freedoms.