Expanding the definition of “harassment” to punish hurtful or insensitive speech on college campuses has been tried again and again over the past three decades with disastrous consequences for free speech. Since the tragic recent suicide of Rutgers University student Tyler Clementi, whom authorities say took his own life following his roommate’s online broadcast of Clementi’s intimate encounter with another man, demands are on the rise for an expansion of the legal definition of harassment to protect college students from “bullying.”
These demands, while understandable, are wholly misplaced. What happened to Clementi was, unsurprisingly, already a serious criminal offense for which the students involved have been charged and are facing prison time. Indeed, practically every serious behavior that could be labeled “bullying” is already an offense under laws and regulations dealing with stalking, vandalism, telephonic harassment and threats. Virtually every college in the country is required by federal law to have strong rules banning discriminatory harassment.
Beginning in the 1980s, a movement to broaden harassment policies to prohibit offensive speech on campus produced countless outrageous incidents of censorship, intensified the campus culture war and provoked a steady stream of costly First Amendment lawsuits that the government consistently lost (at least 16 successful lawsuits since 1989).
Yet these policies are still widespread; according to the Foundation for Individual Rights in Education’s 2010 study of nearly 400 universities across the country, 71 percent of schools maintain codes that clearly and substantially violate the First Amendment. While this percentage has been declining in recent years, a renewed effort to expand the definition of harassment would set the struggle for free speech on campus back by decades. Students already regularly face investigation and punishment for expressing dissenting views on controversial or political issues, for innocuous speech like parody or satire, or even for merely criticizing the campus administration.
The irony is that a standard that effectively balances free speech rights with the need to protect students from harassment has already been enunciated by the Supreme Court in a 1999 case, Davis v. Monroe County Board of Education (1999). This standard has been adopted by many institutions, including the entire University of California system.
There is no need for additional legislation banning bullying or harassment on campus. Rather, the free speech rights of college students are badly in need of increased protection.