Proposed federal law another threat to free speech on campus

November 24, 2010

It is like an immutable law of physics. For every offensive action there must be introduced an equally offensive law to futilely attempt to prevent it from ever happening again. Never mind if there are already plenty of laws on the books, there oughta be a law.

Thus it is with the apparent suicide of Rutgers University student Tyler Clementi, who reportedly jumped off a bridge after two classmates live-streamed on the Internet video of him in a sexual encounter with another man.

Sen. Frank Lautenberg and Rep. Rush Holt have introduced HR 6425, the Tyler Clementi Higher Education Anti-Harassment Act of 2010, "To prevent harassment at institutions of higher education, and for other purposes."

Never mind that the alleged perpetrators already have been charged under existing laws in New Jersey.

The folks at FIRE, Foundation for Individual Rights in Education, are warning that this proposed federal law could be still another threat to free speech on campus, already an endangered species.

"Tyler Clementi was subjected to an unconscionable violation of privacy, but that conduct was already criminal and prohibited by every college in America," FIRE President Greg Lukianoff was quoted as saying in a blog on the FIRE website. "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. And all this in response to student behavior that was already illegal."

As the blog posting points out, what is particularly troublesome is not what the proposed law says, but what it omits. It leaves out the requirement that the "harassment" be objectively offensive to a reasonable person. Those with the thinnest of skins could invoke the law for the flimsiest of reasons.

Of course, the proposed law specifies communication on the Internet as covered by its sweeping prohibitions, making it hazardous to use Twitter and Facebook and YouTube anywhere in the known universe.

And the bill’s threshold is insanely low. It criminalizes behavior that "is 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 …"

As one FIRE writer points out, this might prevent PETA protesters from holding up photos from a slaughterhouse outside the cafeteria because it might hamper the "benefit" of eating lunch.

There oughta be a law …

Cases: Federal Anti-Harassment Bill Threatens First Amendment Rights on Campus