Law Professor Eugene Volokh recently had an interesting post on a Wisconsin town’s “bullying” ordinance, which criminalizes speech by minors as “bullying” or “harassment” if it creates an “offensive” or “hostile” environment, or if it is deemed “emotionally abusive.” I explained at this link why the ordinance in Monona, Wisconsin, is unconstitutionally vague, and how it would chill speech protected by the First Amendment. What is perhaps most disturbing about the ordinance is that it punishes parents for the speech and conduct by their children that it defines as “bullying.”
Ordinances like this also set a worrisome precedent for employers and businesses, with workplace bullying activists seeking to define a wide array of supervisor and co-worker speech that criticizes a worker as “bullying,” in definitions far broader than the Monona ordinance. (People need to be able to freely criticize coworkers, even if it hurts their feelings, in order to remedy bad or mediocre work performance. But some anti-bullying activists want to restrict workplace criticism unless the employer has overwhelming proof of “substantive and quantifiable” bad performance. Such restrictions would chill speech that is needed for self-improvement and an efficient workplace.)
Speech cannot be banned in public settings merely because it creates an offensive or hostile environment (See DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008) and Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995)) or causes “emotional distress” for a listener (see McCauley v. University of the Virgin Islands, 618 F.3d 232 (3d Cir. 2010)).
The First Amendment problems of broad anti-bullying rules get little attention from the press — even though some bullying rules are so broad that college newspaper editorials could fall within their broad definition of “bullying” because of the fact that they contain criticism — because the press settled early on a very simplistic narrative about anti-bullying laws: that the only people who object to them are right-wing religious fundamentalists. As I note here, civil libertarians, and legal scholars across the political spectrum, have objected to overly broad anti-bullying legislation, but this has not prevented reporters who know better from deliberately making it sound like only the religious right opposes such legislation, when this is not in fact the case. This misperception results in progressives who loath religious fundamentalists reflexively supporting ridiculously broad definitions of bullying that reach core political speech protected by the First Amendment. For example, a progressive Minnesota newspaper wrote that students should not be allowed to “criticize” “people who aren’t like themselves” and tell others that their “political views are wrong.” Such political disagreement, it said, should be banned as “bullying.”
Overly broad anti-bullying laws raise serious state and federal constitutional problems –like New Jersey’s anti-bullying law, whose burdensome red tape (it contains 18 pages of “required components”) violated the state constitution’s ban on unfunded mandates, and also infringed on college students’ First Amendment rights, according to civil libertarians like the Foundation for Individual Rights in Education.
The Monona anti-bullying ordinance contains an exception that purports to exempt constitutionally protected speech. Alas, this vague exception does not solve its First Amendment problems, as courts have made clear. (See, e.g., In re Initiative Petition No. 366 (2002)).
When a government regulation or statute broadly bans speech, but then exempts some speech based on vague criteria for whether speech is deemed protected or unprotected by the First Amendment, without spelling out what speech actually violates those criteria, that makes the whole speech restriction unconstitutionally vague in violation of the First Amendment, since it becomes a trap for the unwary.
For example, a school regulation that contained provisions parroting the Supreme Court’s vague Tinker test (for what speech in schools is protected by the First Amendment) was ruled unconstitutionally vague, because it did not explain how exactly that test applied to particular speech by students. See Nitzberg v. Parks (1975).
A vague exception to a broad restriction on speech can render the speech restriction unconstitutionally vague, rather than curing the First Amendment problem, as the Supreme Court made clear in its decision in Gentile v. State Bar (1991).
Even blanket exemptions for all First Amendment protected speech do not make otherwise vague restrictions acceptable, since the vagueness of the restriction and its exemption can chill speech. See In re Initiative Petition No. 366, 46 P.3d 123 (Okla. 2002)(citing “the classic example of an unconstitutionally vague statute: ‘It shall be a crime to say anything in public unless the speech is protected by the first and fourteenth amendments.’”) (citing Laurence Tribe, American Constitutional Law § 12-29, at 1031 (2d ed. 1988)).
That is partly because court rulings are themselves not a model of clarity on what speech is and is not protected by the First Amendment, and partly because ordinary people can’t possibly read all of the thousands of court decisions dealing with the First Amendment necessary to understand what speech is and isn’t protected (much less be on fair notice of what those rulings say is and isn’t protected).