Tyler Clementi Act a Serious Threat to Free Speech

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.