Second Chance for New Jersey to Protect Free Speech in Anti-Bullying Law

TRENTON, N.J., February 1, 2012—Following a state council's ruling that New Jersey's new anti-bullying law is an unfunded mandate in violation of the New Jersey Constitution, the Foundation for Individual Rights in Education (FIRE) notes that the law also violates college students' First Amendment rights. The law ignores the fact that harassment in the educational context has a precise legal definition, crafted by the Supreme Court with specific attention to balancing the right to freedom of expression with the government's interest in prohibiting real harassment. The law also conflicts with recent rulings on campus speech from the United States Court of Appeals for the Third Circuit, whose jurisdiction includes New Jersey.

"The Council on Local Mandates' ruling has provided New Jersey legislators a chance to fix restrictions on student speech that are both impermissibly vague and startlingly broad," said FIRE President Greg Lukianoff. "This 'anti-bullying' law, as it is currently written, makes opening one's mouth on a college campus in the state of New Jersey a serious risk. FIRE knows all too well that even well-intentioned rules that provide vague proscriptions on speech that challenges or offends are a true disaster for free speech, candor, and robust intellectual inquiry."

While virtually all attention to the law has focused on its impact on K-12 students, New Jersey's Anti-Bullying Bill of Rights also requires colleges to prohibit "harassment, intimidation and bullying." The law defines those terms so broadly as to include "a single incident" on campus that "substantially disrupts or interferes with the orderly operation of the institution or the rights of other students" and "has the effect of insulting or demeaning any student or group of students" or "will have the effect of physically or emotionally harming a student."

Yet in Davis v. Monroe County Board of Education (1999), the Supreme Court of the United States defined peer-on-peer harassment in the educational context as unwelcome conduct directed at an individual that is "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." This standard, no more and no less, effectively covers the speech that New Jersey may legitimately ban as "bullying."

In contrast to the Davis standard, New Jersey's law fails to define "emotional harm" and gives students no way to predict what fellow students will perceive as "emotional harm." Such highly subjective terms effectively leave the state's adult college students guessing at what speech is and is not outlawed on campus. That kind of uncertainty leads to a chilling effect on speech, as rational students decide to self-censor rather than risk punishment.

In addition, by prohibiting speech that "has the effect of insulting or demeaning any student or group of students" in such a way as to "substantially disrupt[] or interfere[] with the orderly operation of the institution," New Jersey has in effect sanctioned the "heckler's veto." If the College Republicans were to stage a disruptive sit-in because the College Democrats had harshly criticized them for being Republicans, New Jersey's law would subject the Democrats to punishment for the Republicans' disruption. In other words, New Jersey has incentivized overreaction to any perceived insult, since the "victim's" disruption of the orderly operation of the school automatically shifts the blame to the speaker.

The New Jersey law also is at odds with binding precedent from a federal appellate court. In DeJohn v. Temple University (2008), the United States Court of Appeals for the Third Circuit struck down Temple University's restriction on "generalized sexist remarks and behavior," holding that the policy "provides no shelter for core protected speech" and concluding that "[d]iscussion by adult students in a college classroom should not be restricted." In McCauley v. University of the Virgin Islands (2010), the Third Circuit struck down the University of the Virgin Islands' prohibition on conduct causing "emotional distress." The court found the policy "entirely subjective" and noted that under this vague restriction, "[e]very time a student speaks, she risks causing another student emotional distress," resulting in a "heavy weight" that does "substantial" damage to free speech on campus.

Now that New Jersey's Council on Local Mandates has ruled that the anti-bullying law must be revised, this is an opportunity to fix the First Amendment violations in the law as well.

"In the aftermath of tragedies like Tyler Clementi's, it is understandable that people rushed to pass this new law," said FIRE Director of Legal and Public Advocacy Will Creeley. "But we can't let a tragedy serve as justification to roll back the First Amendment. Poorly written laws should not silence protected speech."

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, freedom of expression, academic freedom, due process, and rights of conscience at our nation's colleges and universities. FIRE's efforts to preserve liberty on campuses across America can be viewed at thefire.org.

CONTACT:
Will Creeley, Director of Legal and Public Advocacy, FIRE: 215-717-3473; will@thefire.org