Two days ago we informed you of an absurd situation in New Jersey in which two high school students had their diplomas temporarily withheld after giving a graduation speech containing jokes about fellow students and school administrators. The school administrators were present for the speech, but no one from the audience complained. Nevertheless, the administrators seemingly did not like being the target of even mild, joking criticism and, apparently in retaliation, initiated an investigation into whether the two students violated New Jersey’s anti-bullying law. While the case was dropped, even opening an inquiry here was abusive.
Reason‘s blog has picked up the story, making an interesting point that augments our previous critiques of the New Jersey anti-bullying law:
What FIRE didn’t say is that the law also incentivizes speech-averse officials to go hunting for the hecklers’ veto, by seeking out somebody – anybody – who can claim to be offended. That’s usually not too challenging a task, so it’s a minor miracle that Dominach and Sebastiano weren’t ultimately confronted with thin-skinned "victims."
This is an important observation. Some laws chill speech by being overly vague: speakers don’t know what speech may be punished, so they keep their mouths shut. The New Jersey law isn’t vague, but oppressively clear: whenever and wherever a student speaks, school authorities can search for a listener who is exceptionally easily offended, and use that as a justification to punish the speech.
And that is just what happened in this case. Even though no one complained, school administrators who didn’t like the graduation speech knew that they could shop around to find someone willing to complain. In the meantime, they withheld the students’ diplomas. This was abusive: if the First Amendment means anything, it must provide a speaker with a safe harbor, so that he or she can rely on the constitutional protection as he or she is speaking. Giving authorities the ability to root around searching for subjective harm is giving them license to punish speech they do not like. In that respect, this case was not an abuse of the New Jersey anti-bullying law: it was a central example of how the law may be applied in practice.