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Anti-Bullying Laws Could Lead to Anti-Free Speech Policy

Posted By Matthew Austin On May 21, 2010 @ 8:00 am In NewsReal Blog | 1 Comment

Lawmakers in the Bay State are roundly congratulating themselves for addressing what they see as a growing problem in Massachusetts: high school bullying. In general, the Massachusetts anti-bullying statute prohibits the repeated bullying of a student by another student or group of students on school property or at any school sponsored activity.  Massachusetts lawmakers included cyber-bullying to account for the social mediums such as Facebook, MySpace and the like. It is being heralded as the toughest anti-bullying statute in the country.  

I don’t believe they should be patting themselves on the back too hard. The law has detractors on both sides of the political spectrum, but more importantly, the statute may run afoul of the 1st Amendment.  The Massachusetts anti-bullying statute is an exercise in progressive social engineering that ought to be struck down due to its vagueness, its over-breadth and its potential to discriminate by viewpoint.  

If a law, statute or regulation is vague in the realm of 1st Amendment jurisprudence, it is so imprecise that the limits of its scope cannot be clearly defined.  If our laws or regulations are so imprecisely vague, then it will become impossible to act in accordance with the aforementioned law.  In the case of the 1st Amendment, the law will silence certain forms of speech as no one will know what is prohibited and what is permissible. In other words it will be “void for vagueness.”  In the particular case of the Massachusetts anti-bullying statute, the students of Massachusetts may very well be inculcated to keep quiet when they have a controversial opinion, idea or question.

The law defines “bullying” as any repeated use of a “written, verbal or electronic expression or a physical act or gesture” that causes “physical or emotional harm to the victim.”  It is not clear what would cause emotional harm.  Obviously, a racial or sexually explicit slur would fall under this category.  But as the law is written now, a student who blurts out “jerk” while on the school bus could be considered to be participating in bullying behavior (and potentially subjected to a $1000 fine!) 

In addition, the Anti-bullying statute’s over breadth is problematic.  In an attempt to encourage Massachusetts students to be respectful and tolerant to one another, this statute may restrict and prohibit traditionally protected language in an effort to prohibit questionable speech.  According to the statute’s definition of bullying, which also includes anything that “places the victim in reasonable fear of harm to himself” an opinion on radical Islam expressed in the wrong company could lead to trouble for the opinionated student.  The law, as written, may have the effect of silencing respectful and well-intentioned dissent in public schools.  Had California enacted an anti-bullying statute similar to Massachusetts, the students from Live Oaks High School could have subjected themselves to criminal liability when they expressed their patriotism on Cinco de Mayo.  This criminal liability can also include up to a five year prison sentence in a state correctional facility.

According the United States Supreme Court, student speech can be limited if it is the type that would cause a distraction.  For example, while it is permissible to wear a “Fuck the draft” T-shirt at a court house, it would not be permissible at school.  (Neither would holding up a sign that says “bong hits for jesus”).  It is my opinion that this statute has the potential of going beyond protecting the educational mission of the school to limit dissent and endorse particular viewpoints.  Looking to the four-corners of the document, the statute overreaches by embracing the vapid educational virtues of progressive education: tolerance and diversity.  The statute mandates that each school district to celebrate “No Name Calling Day” annually in January.  They are to take a pledge not to use hurtful names, to promote tolerance and “reaffirm their commitment” to respect differences.  Embedded in the statute is a mandate for tolerance education for all students in Massachusetts.  While the school districts are not required to increase budgetary costs to this mandate, students in Massachusetts will be educated on “tolerance” and the diversity mission of progressives. To facilitate this education, school districts are required to implement a plan to address “perpetrators” of bullying.  This plan covers, inter alia, “professional development” of all staff members including cafeteria workers and custodians.  The upshot of all this? Everyone at the school will have to be vigilant and watch out for students who may have an opinion that may hurt someone’s feelings.

By marshaling every paid employee to keep tabs on student disagreements, and by extension, their unpopular speech, this statute is likely to create an air of intellectual and cultural homogeneity that will chill truly intellectually diverse speech that ought to be fostered in the classroom.  The statutes’ over breadth, its vagueness and its purpose could easily be twisted to target politically unpopular views.  In particular, students who take strong stances on immigration, race and gender issues, foreign policy and terrorism could very well be targeted by school administration officials.  Let’s pray that someone in Massachusetts has the intellectual and emotional wherewithal to withstand a lawsuit and challenge this atrocious piece of legislation.

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Matthew Austin is recent graduate of Albany Law School where he served as president of the student chapter of the Federalist Society for Law and Public Policy Studies. Concurrently, he served on the board of directors at the Albany Lawyer’s Chapter of the Federalist Society. He resides in Albany, NY. 


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