Why a New Federal Harassment Law Is a Bad Idea, Part 2

October 22, 2010

Earlier this week, I wrote about an initiative by Senator Frank Lautenberg of New Jersey to enact a new federal law aimed at harassment and cyberbullying in colleges and universities. As Debra Saunders explained in the San Francisco Chronicle, quoting the analysis of FIRE’s Robert Shibley, such legislation is a bad idea because it could do some significant harm to the free speech rights enjoyed by students on America’s college campuses. Here, I want to expand on those reasons for drawing caution to such efforts, even when they are motivated by the best of intentions.

Senator Lautenberg’s proposal is, as Saunders noted in her column for the Chronicle, a response to the recent tragic death of Rutgers University student Tyler Clementi, who killed himself after a roommate allegedly videotaped and broadcast, over the Internet, Clementi having an intimate encounter in their dorm room. Clementi’s story is unspeakably sad, and it raises any number of issues about life on a college campus and about our society in general.

But what Clementi’s case, or any case involving alleged harassment or cyberbullying on a college campus, doesn’t necessitate is a new federal harassment regulation. That’s because, as I wrote in my previous entry, federally funded colleges and universities are already required to address and prevent discriminatory harassment, pursuant to Title VI and Title IX of the Civil Rights Act of 1964. Consequently, colleges and universities already maintain policiesvery often, several policies at a given institutionprohibiting harassment. They also typically enact procedures designed to remedy occurrences of true harassment and to prevent such harassment from happening again.

Beyond the redundancy is the fact that universities misapply harassment rationales to censor and punish protected speech all the time, and a new federal regulation carries the potential to make the problem still worse. The Supreme Court has provided a firm answer as to what constitutes student-on-student (or peer) harassment in the educational context, and only a policy that satisfies the Court’s exacting standard adequately protects free speech to the extent required by law while prohibiting true harassment. In Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999), the Court declared that for conduct to rise to the level of actionable peer harassment, it must be "so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit." It is imperative that schools incorporate this stringent, speech-protective standardand only this standardinto their policies. That’s because the Davis standard provides schools with a clear answer as to how they can meet their legal obligations to address and prevent true harassment while upholding their equally vital legal obligation to respect the freedom of speech.

However, there is no guarantee that any proposed new legislation will accord with this standard or even anything approaching it. Rather, it seems more likely that initiatives like Senator Lautenberg’s, coming in response to a specific case with an extreme fact pattern, will swing the pendulum too far in the other direction and restrict a good deal of protected expression. The initiative’s focus on "cyberbullying" in addition to harassment, an issue we have encountered before, likewise suggests that the potential for infringement upon the First Amendment is uncomfortably high. Again, discriminatory harassment in education has a specific legal meaning and a fairly developed body of case law surrounding it. Therefore, university policies aimed at peer harassment and so-called cyberbullying need to tread carefully lest they violate students’ rights to engage in free expression. By potentially creating a broad new federal mandate, Senator Lautenberg’s proposed initiative threatens to invade deeply into the realm of students’ free speech rights.

Of course, as regular Torch readers can attest, colleges and universities don’t need any encouragement from the federal government or anyone else to misapply harassment lawthey already do so. Just think about poor Keith John Sampson at Indiana University-Purdue University Indianapolis, declared to be a racial harasser by his school for silently reading an anti-racism book about the KKK’s defeat in a 1920s street brawl during his work breaks as a student-employee. Or The Primary Source at Tufts University, found guilty of harassment and creating a hostile environment for publishing political satire, including unflattering but verifiable facts about Islam. Ask Donald Hindley, the professor at Brandeis University who was declared guilty of racial harassment, without due process, for using the term "wetbacks" as part of his critique of the use of that term in a class discussion germane to his Latin American Politics course. And for many more examples both in university policy and practice, see FIRE’s legal scholarship about the abuse of overbroad harassment rationales to censor and punish protected expression.

My concern over Senator Lautenberg’s proposal is only heightened by the reality that universities by and large seem to capitalize on new avenues for censoring student speech whenever they become available, and any new "cyberbullying" law could be the latest opening for such efforts. In the years following the tragic shootings at Virginia Tech, for example, we have seen a number of schools use the rationale of "threats" and "intimidation" to restrict and punish protected speech that in no way, shape, or form resembles a true threat of violence or unlawful behavior. Despite clear guidance from the Supreme Court, and from other courts specifically in the context of university speech codes, about what constitutes a true threat under First Amendment doctrine, we have seen this expansive rationale applied unreasonably over and over. The same could easily happen here in the name of addressing harassment and cyberbullying.

For these reasons, Senator Lautenberg’s initiative is cause for concern for those who value campus free speech. FIRE will be watching to see what happensand hoping that common sense and logic prevail.