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Tyler Clementi Act a Serious Threat to Free Speech

An anti-harassment bill being introduced in Congress threatens to stifle freedom of expression even more on college campuses.

by
Robert Shibley

Bio

January 27, 2011 - 12:00 am

The tragic story of Rutgers University freshman Tyler Clementi is well known. Last fall, it was reported that after his roommate and another student surreptitiously recorded video of him engaging in sexual activity with another man in his dorm room and streamed it onto the Internet, Clementi committed suicide by jumping off the George Washington Bridge. The two students accused of this nauseating act, Dharun Ravi and Molly Wei, have since been criminally charged with invasion of privacy and have left Rutgers.

At times like this, one understands why there is the feeling that we should do something — anything — to prevent it from happening again. But unless we ban the Internet, webcams, or roommates, there is nothing concrete that society can do that will absolutely prevent such acts.

It doesn’t take a law or complicated harassment regulations for someone to realize that broadcasting live video of someone else’s sexual activity without their permission isn’t OK. And, of course, even without harassment regulations, what happened to Clementi was against the law in every single state, including New Jersey, and the alleged perpetrators have been charged with the appropriate felonies.

But for some people, every tragic case is an excuse to further regulate our lives and whittle away at constitutional rights.

Enter New Jersey Senator Frank Lautenberg and Representative Rush Holt, who introduced into the lame-duck session of Congress the “Tyler Clementi Higher Education Anti-Harassment Act of 2010.” While it didn’t come up for a vote last year, they have recently affirmed their intention to reintroduce it this year. This is unfortunate, because the “Tyler Clementi Act,” as written, will add Americans’ First Amendment rights to the list of victims of the Clementi tragedy.

The problems with the bill begins with Senator Lautenberg’s apparent confusion over what laws currently apply to college students. In a press release, Senator Lautenberg declared that “it is time for our colleges to put policies on the books that would protect students from harassment.”

Yet such policies have already been required for decades at every single college in the nation that receives federal funding (only a small handful do not) by Titles VI and IX of the Civil Rights Act of 1964. It is very difficult to believe that Senator Lautenberg and his staff don’t know this.

Indeed, as the Foundation for Individual Rights in Education (FIRE) has repeatedly determined, the vast majority of colleges maintain policies that restrict far more expression than the law requires and, in fact, violate the Constitution by prohibiting speech the First Amendment actually protects. Rutgers, Clementi’s university, is one of the colleges that maintains policies that violate students’ rights.

Lautenberg and Holt’s bill will only make this problem worse by actually requiring colleges and universities to enact policies that violate the Constitution. The Supreme Court has promulgated a precise definition of student-on-student harassment that strikes a balance between the government interests of stopping harassment and protecting freedom of speech. In Davis v. Monroe County Board of Education (1999), the Court said that peer-on-peer harassment in the educational context must be

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.

That’s a lot of conditions. The reason for this is that students (generally) don’t have authority over other students. When your boss is propositioning you, or making fun of your ethnicity, it’s much easier to see this as a form of harassment because of the power differential present in the situation. But among students, a formal power differential rarely exists. What might be totally inappropriate from a boss (for instance, repeated requests for dates when the boss knows that the employee is not interested) may just be an annoying fact of life when it happens among students. Therefore, the bar is purposely set higher when it comes to student-on-student harassment.

The proposed bill alters this careful balance by removing the requirement that the behavior in question be objectively offensive. This is a crucial difference, because no longer will the standard be that a “reasonable person” would find the behavior offensive. Instead, what is “offensive” may be determined by the sensibilities of the victim alone, which the speaker may not be aware of, or which may even be totally irrational. This would give power over campus speech to the most perpetually aggrieved among us — a terrible idea anywhere, but especially bad in a place like a university that is supposed to serve as a “marketplace of ideas.”

Another problem is that under the proposed bill, rather than effectively deny a student equal access to “an institution’s resources and opportunities,” as the Supreme Court requires, expression must only “limit a student’s ability to participate in or benefit from a program or activity at an institution of higher education.” Am I splitting hairs here? Again, no. There are a lot of things that are likely to “limit” the benefits of an activity at college that should not be considered harassment. Does holding an “affirmative action bake sale” protest limit the psychological benefits of affirmative action programs? It might. What about holding a counter-protest during a rally in favor of in-state tuition for illegal immigrants? Would this limit the benefits of participating in such a rally? Arguably, yes. It’s not hard to come up with other potential examples. This flimsy standard is ripe for abuse.

The bill also leaves it up to college administrators to determine what constitutes a “hostile or abusive” educational environment. That has repeatedly been shown to be a big mistake. FIRE has handled hundreds of cases in which students and faculty members face censorship, investigation, or punishment for such crimes as writing and performing a parody musicalsatirizing feminist flyers, protesting an unconstitutional free speech zone or the actions of  government officials, and discussing issues like terrorism through protest or art. Giving college administrators even broader authority to make such decisions will guarantee that even more bad decisions get made.

The bill also mandates that universities extend their jurisdiction in these matters to the online world, meaning that students would face discipline for their speech anywhere in the world. In order to fulfill this requirement, universities are likely to turn to Orwellian means to monitor student behavior in unprecedented ways — including full-scale monitoring of social networking sites like Facebook and Twitter — in order to ward off potential lawsuits. Here’s a stock tip: there are already companies making money on programs that do just that. They must be licking their chops over the reintroduction of the bill.

Other than students, the other group that would be likely to bear the brunt of this bill would be taxpayers. Since the bill would require every public university in America to pass unconstitutional policies, every public university would then be vulnerable to civil rights lawsuits stemming from the enforcement of its provisions. Just as it isn’t fair to strip students of their rights, it’s not fair to put universities between a rock and a hard place by forcing them to adopt such policies. And it can get expensive fast. For example, a community college in Texas, Tarrant County College, was recently ordered to pay $240,000 in legal fees for censoring pro-gun speech.

The inescapable fact is that what happened to Tyler Clementi was a crime, complete with criminal records and jail time if the alleged perpetrators are convicted. Not only that, a moment’s reflection would have made it glaringly obvious that it was a crime. If Ravi and Wei didn’t think about that at the time they allegedly decided to broadcast Clementi on the Internet, why in the world would a new federal law and the resulting university regulations make any difference? When considering this bill, Congress should put aside its emotional origins and see it for what it is — just another effort in the seemingly unending crusade to ensure that students at America’s universities think the way the authorities would like them to think.

Robert Shibley is the vice president of the Foundation for Individual Rights in Education (FIRE) in Philadelphia, PA.
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