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A Fine Line Between Bullying and Free Speech

April 30, 2015

By Ashe Schow at Washington Examiner

In her response to news that the man she accused of sexual assault was suing their university over the way it — and she — harassed him after he was exonerated, Emma Sulkowicz claimed that what she was doing was art.

“[It’s] ridiculous that he would read it as a ‘bullying strategy,’ especially given his continued public attempts to smear my reputation, when really it’s just an artistic expression of the personal trauma I’ve experienced at Columbia,” Sulkowicz told the Associated Press.

In her mind, it seemed, carrying a mattress around Columbia University, giving interview after interview and allowing his name to be published as an unpunished rapist, constituted her free speech. When Paul Nungesser tried to defend himself from the relentless accusation — which both Columbia University and New York police found to be without merit — that was bullying.

This brings up an interesting question about the difference between bullying and free speech, and one that the Foundation for Individual Rights in Education has been answering for years.

“‘Bullying,’ as others have noted, is an expansive, difficult-to-define term that is too often used to describe protected speech,” Joe Cohn, FIRE’s legislative and policy director, told me in an e-mail. “In fact, a great deal of FIRE’s work involves campus censorship of protected speech driven by efforts to combat ‘bullying.'”

One example of FIRE’s defense of free speech in a similar situation, as noted by Cathy Young over at Newsday, was the case of Landen Gambill at the University of North Carolina. She, like Sulkowicz, was unhappy with the outcome of a campus sexual assault panel and voiced her dismay about the outcome. When she was disciplined by the university, FIRE defended her on free speech grounds.

But unlike Sulkowicz, Gambill’s criticisms focused on the campus’s handling of her case and not on her alleged abuser. Gambill did not publicize his name or personally target him with her media attacks. She also didn’t threaten a sideshow performance until the man she accused was run off campus.

What Gambill did would fall under free speech, as she was criticizing a broad organization (UNC) and not specifically naming someone.

But under the definition of bullying set forth by the Supreme Court in Davis v. Monroe County Board of Education, what Sulkowicz did was harassment. In that case, the court held that actions constitute harassment when those actions are “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.”

It’s difficult to argue that Sulkowicz’s art project, which has called attention to Nungesser, did not affect his educational experience. In fact, he alleges just that in his lawsuit against Columbia.

Sulkowicz was not alone in her bullying. She was aided by Sen. Kirsten Gillibrand, D-N.Y., who took to the Huffington Post to call Nungesser a “rapist” after his name was released to the press (Gillibrand did not use his name). What’s most interesting about Gillibrand’s involvement is her past declarations about bullying being “completely unacceptable.”

Sulkowicz was also aided by Columbia, which is being sued by Nungesser.

Sulkowicz created a powerful piece of art, there’s no question there. But when she stated that her purpose for the piece was to get Nungesser to be shamed or expelled from Columbia, she crossed the line from free speech to bullying.

Nungesser isn’t suing Sulkowicz right now, and he may never. But it must be clear where the line between free speech and bullying falls.

Schools: Columbia University