Last January, New Jersey’s Council on Local Mandates ruled that the state’s Anti-Bullying Bill of Rights, enacted in 2010, unconstitutionally requires new expenditures by local governments without providing funding for them. Now that the law will have to be revised, the legislature has a chance to fix its First Amendment defects as well.
“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,” says Greg Lukianoff, president of the Foundation for Individual Rights in Education (FIRE). The law, which requires colleges to ban “harassment, intimidation and bullying,” defines harassment to include “a single incident” 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.”
That definition of student-on-student harassment, FIRE notes, is substantially broader than the one the Supreme Court has said is consistent with the First Amendment in the context of Title IX lawsuits. The anti-bullying law also seems inconsistent with two rulings by the U.S. Court of Appeals for the 3rd Circuit, where New Jersey is located.
In 2008 the 3rd Circuit struck down Temple University’s regulations aimed at “generalized sexist remarks and behavior,” saying the policy “provides no shelter for core protected speech.” In 2010 the appeals court rejected the University of the Virgin Islands’ ban on conduct that causes “emotional distress,” noting that “every time a student speaks, she risks causing another student emotional distress.” FIRE argues that “New Jersey has in effect sanctioned the ‘heckler’s veto,’ ” since anyone who claims to be insulted, demeaned, or emotionally harmed by another student’s speech can make a fuss about it, thereby generating the disruption that triggers punishment.