(This post is based on a talk I gave at the Seton Hall Legislative Journal’s symposium on Bullying and the Social Media Generation. Many thanks to Frank Pasquale, Marisa Hourdajian, and Michelle Newton for the invitation, and to Jane Yakowitz and Will Creeley for a great discussion!)
New Jersey enacted the Anti-Bullying Bill of Rights (ABBR) in 2011, in part as a response to the tragic suicide of Tyler Clementi at Rutgers University. It is routinely lauded as the country’s broadest, most inclusive, and strongest anti-bullying law. That is not entirely a compliment. In this post, I make two core claims. First, the Anti-Bullying Bill of Rights has several aspects that are problematic from a First Amendment perspective – in particular, the overbreadth of its definition of prohibited conduct, the enforcement discretion afforded school personnel, and the risk of impingement upon religious and political freedoms. I argue that the legislation departs from established precedent on disruptions of the educational environment by regulating horizontal relations between students rather than vertical relations between students and the school as an institution / environment. Second, I believe we should be cautious about statutory regimes that enable government actors to sanction speech based on content. I suggest that it is difficult to distinguish, on a principled basis, between bullying (which is bad) and social sanctions that enforce norms (which are good). Moreover, anti-bullying laws risk displacing effective informal measures that emerge from peer production.
The ABBR is complex. It requires New Jersey school systems to adopt anti-bullying policies that mandate investigation of bullying complaints and incidents, and that require schools to ban at least the speech and conduct defined by the bill as “harassment, intimidation, and bullying.” Students who engage in such activity are subject to punishment, including suspension and expulsion. The bill’s definition of harassment, intimidation, and bullying is extremely broad. It includes any gesture; any written, verbal, or physical act; or any electronic communication, that
- is reasonably perceived as being motivated by any actual or perceived characteristic, or by any other distinguishing characteristic;
- takes place on school property, at a school-sponsored function, on a school bus, or off school grounds; and
- substantially disrupts or interferes with the orderly operation of the school, or the rights of other students.
Also, the harassment / intimidation / bullying must be such that
- a reasonable person should know will physically or emotionally harm a student, damage the student’s property, or place the student in reasonable fear of physical harm, emotional harm, or property damage; or
- it has the effect of insulting or demeaning any student or group of students; or
- it creates a hostile educational environment by interfering with a student’s education, or by severely or pervasively causing physical or emotional harm
The definition is capacious by design. In substance, it covers speech that few would consider problematic. Consider the student who, in homeroom, loudly quotes Groundskeeper Willie from The Simpsons to the effect that the French are “cheese-eating surrender monkeys,” offending a student of French descent. Or, imagine a group of students who, on the bus ride home, sing “Blame Canada” from the film South Park: Bigger, Longer and Uncut, to the consternation of a classmate from Montreal. Each qualifies as harassment / intimidation / bullying – regardless of whether our potential bullies intend to cause harm, or whether our singers know that their classmate is Canadian. The ABBR sweeps a wide expanse of innocent speech under its ban.
The response to these examples is to focus attention on the aspect of the statute that performs the most work: the requirement that speech “substantially disrupt or interfere” with either school operations, or the rights of other students. (Ronald Chen, who helped design the legislation, somewhat sheepishly noted that the latter is circular: a student’s right not to be bullied is violated when her rights are substantially disrupted or interfered with. It’s obvious!) Below, I note that this second aspect – banning speech that disrupts rights, without defining those rights – is well beyond existing precedent regarding schools’ lawful power to regulate speech. Here, I want simply to note that another problematic characteristic of the bill is that it confers considerable discretion upon school officials, such as principals and anti-bullying specialists. It is a canonical First Amendment principle that regimes which license or punish speech must contain sufficiently precise formulations such that enforcing officials do not have unfettered discretion. Part of this requirement is to provide noticed to the regulated, so that they can predict how their speech will be categorized and conform their behavior accordingly. The tale of capacious discretion in enforcement is a sorry one in American constitutional history. Schools have punished Jehovah’s Witnesses for refusing to recite the Pledge of Allegiance; Vietnam War protesters for wearing black armbands to class; and a student who displayed the nonsensical banner “Bong Hits 4 Jesus” outside school grounds. The disruption caused by these actions is plainly chimerical; rather, school officials punished speech of which they personally disapproved. The ABBR does nothing to cabin discretion. Rather, it encourages it.
The substantial disruption test is borrowed from Tinker v. Des Moines Independent Community School District, 393 U.S. 503, which is arguably the most important Supreme Court case on school regulation of student speech. Tinker‘s holding, though, does not go as far as the ABBR reaches. Justice Fortas emphasized that schools may proscribe “interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone.” (393 U.S. at 508) Tinker contemplates restrictions on speech that impede education, affect the student body in a substantial way, or that impinges upon a student’s physical security or privacy. However, the Court is careful to constrain the power of school officials: “Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance.” (393 U.S. at 508) New Jersey may not constitutionally punish a student who states his heartfelt political belief that Nicolas Sarkozy is a cheese-eating surrender monkey, no matter how much emotional pain that statement generates for his Francophile classmate. Thus, the ABBR’s substantial disruption language is not protected by Tinker, and is likely unconstitutional in potential application, if not on its face.
Vertical Versus Horizontal Regulation of Student Speech
I argue that Tinker is intended as vertical regulation: it permits school officials to constrain speech – even otherwise lawful speech – when that speech is too disruptive of the school environment. Tinker is intended to prevent the classrooms and hallways from turning into the island of Lord of the Flies: if political protest or hurled epithets gravely disrupt the learning environment, they can be proscribed. Tinker seeks to maintain an orderly hierarchy whereby students are under the tutelage, and control, of teachers and principals.
Tinker is not, though, about horizontal regulation: it does not permit school officials to ban speech by one student that another student finds uncomfortable, emotionally painful, or offensive. Indeed, Tinker seeks to protect such expression. Justice Fortas wrote that “state-operated schools may not be enclaves of totalitarianism… students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved.” (393 U.S. at 511)
Jane Yakowitz pointed out two Third Circuit cases that elaborate upon this point. First, in DeJohn v. Temple University, the court struck down Temple’s sexual harassment policy, which banned “expressive, visual, or physical conduct of a sexual or gender-motivated nature, when (c) such conduct has the purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status; or (d) such conduct has the purpose or effect of creating an intimidating, hostile, or offensive environment.” The Third Circuit held that the policy was overbroad. It also took issue with the ban on creating an intimidating, hostile, or offensive environment, stating that, “It is difficult to cabin this phrase, which could encompass any speech that might simply be offensive to a listener, or a group of listeners, believing that they are being subjected to or surrounded by hostility.” So, to, with New Jersey’s ban on speech that might have the “effect of insulting or demeaning any student.”
Similarly, in McCauley v. University of the Virgin Islands, the Third Circuit overturned the university’s ban on conduct that creates emotional distress, defined as “conduct which results in physical manifestations, significant restraints on normal behavior or conduct and/or which compels the victim to seek assistance in dealing with the distress.” The court noted that this definition was “entirely subjective and provides no shelter for core protected speech.” It elucidated that the infirmity was that the prohibition depended upon the listener’s reaction, and thus could include “minority students [who] may feel emotional distress when other students protest against affirmative action; a pro-life student [who] may feel emotional distress when a pro-choice student distributes Planned Parenthood pamphlets on campus; even simple name-calling could be punished.”
In short, the circuit court of appeals that could hear a challenge to the ABBR has been hostile to similar speech codes. I think the ABBR is at the mercy of the first aggrieved student disciplined under its provisions.
Impingement on Other Freedoms
A third weakness of the ABBR is that it trenches too greatly on other First Amendment rights, such as religious freedom. The ABBR covers, under its definition of bullying, speech that targets an individual based on a characteristic such as religion or sexuality. Given this prohibition, could a group of LGBT students criticize a classmate who is a member of the Westboro Baptist Church for his beliefs, which they would find repugnant? Similarly, could the church member express his sincerely held belief that God hates gays and lesbians? The likely answer to both questions is “no.” Ironically, the bill threatens both sides of this debate with punishment for bullying. It creates a zone of silence about an issue – the morality of same-sex relationships and intimate conduct – that is of sufficient importance for the Supreme Court to take up a case on it last term.
This is not merely a hypothetical risk. Union Township special education teacher Viki Knox wrote on her Facebook page an objection to her school’s celebration of LGBT month. She posted, “homosexuality is a perverted spirit that has existed from the beginning of creation… Why parade your unnatural immoral behaviors before the rest of us?” Her school district investigated her comments, and Governor Chris Christie criticized her, saying, “I’m really concerned about those kind of statements being made.” Knox’s views are repugnant to many, but they are also ones shared by a substantial portion of Americans. A student who similarly questioned LGBT month – even on her Facebook wall – might be targeted for discipline under the anti-bullying bill. Schools must of necessity deal with contentious issues in their curricula, and students will bring strongly-held views to those debates. The ABBR risks censoring those views, in direct contravention of the First Amendment and related jurisprudence.
Bullying and Social Sanctions
The First Amendment inculcates a healthy skepticism towards government actions that sanction speech based on its content. The ABBR’s goal is laudable: it seeks to avoid physical or emotional harm to students. However, the Constitution mandates sizeable leeway for emotionally harmful speech, for at least two reasons. First, sharp debate is more likely to engage listeners and, perhaps, change minds. Consider the raw language used in discussions over the Vietnam War, or the adoption of federal health care legislation.
Second, and more relevant here, social sanctions through criticism or opprobrium are powerful and often beneficial means of shaping behavior. Consider teen anti-smoking campaigns: peer pressure is an effective inducement to quit a harmful habit. Yet targeting someone for being a smoker counts as focusing on an “actual characteristic” under the anti-bullying law. The ABBR threatens to impede or punish individual and collective expression that can generate helpful shifts in behavior, from evincing greater toleration for people of different sexualities to political outreach. The difficulty is that there is no principled means to distinguish between social sanctions that enforce norms we like, and bullying that enforces norms we do not. It would be unlawful for Viki Knox to critique LGBT month in her school, and unlawful for students to criticize her for those beliefs.
Thus, the ABBR has only two stable outcomes: a school free of such expression and activity, or one where penalties against it are at the discretion of school officials, who may have idiosyncratic views regarding favored and disfavored speech. The former creates a highly artificial school environment – one hermetically sealed against the realities and controversies of life outside the schoolyard gates. The latter creates the perils of censorship based on a principal’s own preferences on what speech counts as right or wrong.
State regulation of expression – even when it is inarguably bullying – may worsen matters. Formal adjudication of speech as problematic or hurtful may interfere with informal mechanisms that students have adopted to minimize, mitigate, or simply ignore the bullying. danah boyd’s research shows, for example, that teens may deal with bullying speech by downplaying its import or effects. These methods may be more effective than official school procedures, particularly since they emerge organically from the vulnerable population. The concern is that governmental labeling of speech is powerful. Even negative labeling – such as describing a particular gesture or taunt as “intimidation” – may heighten its perceived effect, and draw attention to it. The ABBR risks increasing the harms it seeks to mitigate.
The First Amendment protects student speech even within their schools’ classrooms and corridors. The Supreme Court has permitted some limits on speech based on the need to maintain a functional educational environment, to block incitement or endorsement of unlawful activity, or to protect students’ physical security and privacy. Anti-bullying laws such as New Jersey’s, though, break new ground – they seek to regulate not the school institution itself, but rather the relationships among students. The orientation of these laws is clear from their application to speech that takes place outside school, such as via social media. This shift is normatively problematic, for two reasons. First, it seeks to create a social dynamic that is at best unrealistic, and at worst leeched of all controversial expression. And second, bills like the ABBR risk imposing school officials’ views on students by defining a wide swath of expression as potentially sanctionable.
Disruptive, hurtful, and unpleasant speech are a difficult part of growing up, and in particular of school life. Yet it is not merely the price we pay for robust discourse – it is at times at the heart of it.
Cross-posted to Concurring Opinions.