The Ever-Expanding Concept of “Bullying” Casts an Ominous Shadow Over Free Speech

by Hans Bader on January 20, 2012 · 6 comments

in Legal, Nanny State, Personal Liberty, Politics as Usual, Zeitgeist

A school superintendant has labeled a column in a school newspaper that criticized homosexuality as “bullying.” (The Shawano High School newspaper decided to run dueling student opinion pieces on whether same-sex couples should be able to adopt children; the student article that was labeled as “bullying” answered the question “no.” The school district also publicly apologized for the column, and said that it is “taking steps to prevent items of this nature from happening in the future.”)

Whatever the wisdom (or lack thereof) of featuring something like that in a school newspaper, it seems strange to argue that a viewpoint in a student newspaper is “bullying.” (The Shawano School District’s bullying policy provides that “bullying” may lead to “warning, suspension,” “expulsion,” etc.) A conservative Christian who thought that homosexuality was immoral successfully challenged a school “harassment” code that punished students with such viewpoints in Saxe v. State College Area School District (2001), a case in which a federal appeals court ruled that there is no “harassment” exception to the First Amendment for speech which offends members of minority groups. Speech cannot be banned simply by labeling it as violence, either: for example, in Bauer v. Sampson, another federal appeals court ruled that a campus newspaper’s illustration depicting a college official’s imaginary death was protected by the First Amendment, even though the college declared it a violation of its policy against “workplace violence.”

But schools and anti-bullying activists have adopted incredibly overbroad definitions of bullying. The anti-bullying website, and schools like Fox Hill and Alvarado Elementary, define even “eye rolling” and other expressions of displeasure or hostility as bullying, even though doing so raises First Amendment problems.

The Obama administration claims bullying is an “epidemic” and a “pandemic.” But in reality, bullying and violence have steadily gone down in the nation’s schools, as studies funded by the Justice Department have shown. The Obama administration’s website defines a vast array of speech and conduct as bullying: it classifies “teasing” as a form of “bullying,” and “rude” or “hurtful” “text messages” as “cyberbullying.” Since “creating web sites” that “make fun of others” also is deemed “cyberbullying,” conservative websites that poke fun at the president are presumably guilty of cyberbullying under this strange definition. (Law professors such as UCLA’s Eugene Volokh have criticized bills by liberal lawmakers like Congresswoman Linda Sanchez (D-Calif.) that would ban some criticism of politicians as cyberbullying.)

Kathy Hermes January 20, 2012 at 9:35 am

I disagree with this author’s claim that definitions of bullying have gone to far and wide. There may be individuals who have taken it too far, but the movement itself has been careful to construct definitions that capture the actual behavior AND specify the harm it does. Bullying is not bullying unless someone suffers harm. I am an advocate for the Healthy Workplace Bill, legislation that seeks to create a private right of action (the right to sue) for abusive conduct at work.
While things like “belittling” are included in the bill, one instance of a belittling comment is not bullying. We use the “reasonable person standard” and look for patterns of behavior that cause health harm, among other things. What we are seeking is reasonable behavior in the workplace so that people can do their jobs. Is this too much to ask? What child bullying advocates want is a safe place for all children to go to school. Mere speech that causes no direct, intentional harm should never be illegal. Speech targeted at a specific person day after day that creates a psychologically abusive work environment in which someone cannot function and has health-harming effects has crossed the line.

Alessandra January 20, 2012 at 8:53 pm

Kathy Hermes, I totally agree with your points regarding intensity and type of teasing, belittling, harassing, etc., it is critical to examine the accumulated harmful effect.

My concern is regarding the criticism made in the article: that simply speaking a certain point of view on homosexuality, for example, can be deemed to be “bullying.” If one adopts this concept, there is no more market place of ideas or freedom of speech.

“Mere speech that causes no direct, intentional harm should never be illegal. ”

The issue is homosexual activists are claiming that any speech that criticizes their homosexual agenda is “harmful.” And they are moving to not only censor, but to punish or persecute anyone who dissents.

a_random_guy January 23, 2012 at 8:59 am

@KathyHermes: Right, because the solution to everything is more lawsuits.

You write: “Mere speech that causes no direct, intentional hard should never be illegal”. That sounds very reasonable, until we start quibbling about the definitions of “direct”, “intentional” and “harm”. You pay some psychologist to state that my speech has harmed your self-image, and off we go to court. Great.

Correct: “Mere speech should never be illegal”. Period. Some people are overly sensitive, and go around looking for some reason to be offended. These people need to get a life.

In the unlikely circumstance that you find yourself working in a company where the “adults” still practice schoolyard bullying, and you can’t sort it out on your own, then sort it out with your company’s HR department. If that doesn’t work, change jobs – no one can make you stay at a company where you are unhappy.

Steve January 23, 2012 at 10:04 am

These same liberals that holler about “bullying” are the biggest bullies on earth when it comes to people who don’t share their views, and especially smokers. If liberals think it’s for their own good, they will persecute, bully, humiliate, anything because it’s politically correct to be an antismoking bigot today. Imagine doing to any other group what is done to smokers. There would be outrage. But since smokers are the last group it’s okay to hate, there’s a LOT of hatred to be released onto smokers. Bullying isn’t even strong enough of a word. They PERSECUTE them.

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