We can’t be free without the right to be offensive

It started on college and university campuses, where repressive speech codes have been teaching generations of students that they have no right to offend someone, anyone, who can claim membership in a growing list of presumptively disadvantaged groups.

Now, this mindlessly censorious movement to force us to be nice to each other is encroaching on public life, off-campus: The District of Columbia (DC) City Council is considering banning the ‘harassment, intimidation, or bullying’ of students in public libraries and parks, as well as schools (including the District’s public university). Bureaucrats in charge of all relevant supervisory agencies are required to promulgate detailed policies that define bullying and harassment ‘no less inclusively’ than the City Council.

It would be difficult to define bullying more inclusively: according to the council bill, ‘harassment, intimidation or bullying’ is ‘any gesture or written, verbal or physical act, including electronic communication, that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, colour, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory handicap, or by any other distinguishing characteristic’, which a ‘reasonable person’ would foresee as effectively intimidating or harmful to students or their property, or as effectively ‘insulting or demeaning’ to any student or group of students so as to disrupt ‘the orderly operation of a school, university, recreational facility, or library’.

Don’t bother trying to figure out what this vague and verbose definition of bullying includes. Focus instead what it might exclude – not much. Virtually no speech or behaviour that a student self-conscious about any ‘distinguishing characteristic’ might consider hurtful or that a petty bureaucrat might find offensive is beyond the reach of this ban. Its scope is simply breathtaking; although, sad to say, the ‘inclusiveness’ of this bill doesn’t distinguish it from other state and local bullying laws or campus speech codes. It is, however, shamefully distinguished by its application outside of schools to public libraries and parks. Imposing a subjective sensitivity code on the general public, it displays an astonishing contempt for the most obvious and fundamental freedoms of speech and belief, as well as astonishing ignorance of constitutional rights.

The flagrant abuses of this bill threaten civil society much more than the abuses it apparently intends to prevent – bullying (anti-gay bullying in particular). In addition to policing the everyday speech of anyone who frequents a public park or library, the bill creates a system of informants – students, volunteers or agency employees – who are required to report alleged bullying incidents to the ‘appropriate official’, named in the agency’s mandatory anti-bullying policy, which must allow for anonymous reporting. I doubt this is a prescription for fostering mutual tolerance and trust in an open and free society.

The social effects of expansive laws prohibiting allegedly hurtful speech are still debatable (however weak arguments for their social utility may be); but the un-constitutionality of the DC bill is clear. From kindergarten through to year-12 public schools, administrators enjoy considerable power to restrict ‘disruptive’ student speech. But administrators in public colleges and universities are obliged to respect First Amendment rights, as are elected officials, who have no power to prohibit citizens from allegedly demeaning, insulting or otherwise offending each other. At the very least, the DC bill fails because it subjects adults (who dare to frequent parks and libraries) to the same vague, onerous speech restrictions imposed on high-school students and elementary-school children. Just last term, the Supreme Court confirmed the right of virulently homophobic church members to protest outside military funerals, despite the pain their protests might inflict. There’s no question that members of the public (and probably students at public colleges) have a right to engage in the mundane incivilities covered by the DC bill.

But courts may eventually be required to vindicate those rights. The City Council expects to vote on this blatantly unconstitutional bill by the end of this year. It reportedly enjoys ‘overwhelming support’ in the council, which has heard from a parade of witnesses supporting its infantilising restrictions on speech (some have even pressed for more stringent enforcement provisions). Critics of the bill on the left are harder to find, although some civil libertarians persist: Joan Bertin, executive director of the National Coalition Against Censorship, observes that this ‘well-intentioned bill threatens constitutionally protected student speech’, and she voices strong concerns about imposing unconstitutional speech restrictions on members of the public outside of school. Art Spitzer, legal director of the American Civil Liberties Union (ACLU) affiliate office in Washington DC, has expressed concerns about the bill’s definition of bullying: ‘What does it mean by harming a student… does that mean hurting a student’s feelings? If a student comes in and says I feel very harmed by the fact that so and so said I was a crappy athlete… that’s not bullying’, Spitzer explained in the local press.

The ACLU advises defining bullying more precisely, but the definition it has proposed (in written testimony to the DC council) remains absurdly over-inclusive, and deserves to be quoted at length. The ACLU, formerly America’s premier defender of free speech, defines ‘bullying, intimidation, or harassment’ as:

‘any severe, persistent, or pervasive physical, electronic, or verbal act or conduct, including but not limited to that which is based on a student’s actual or perceived race, colour, ethnicity, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, matriculation, political affiliation, genetic information, disability, source of income, status as a victim of an intrafamily offence, place of residence or business, or any other distinguishing characteristic, or based on association with a person or group with any person with one or more of the actual or perceived characteristics listed above, directed toward a student or students that has or can be reasonably predicted to have the effect of one or more of the following: 1) placing the student or students in reasonable fear of physical harm to the student’s or students’ person or property; 2) causing a substantially detrimental effect on the student’s or students’ physical or mental health; 3) substantially interfering with the student’s or students’ academic performance; or 4) substantially interfering with the student’s or students’ ability to participate in or benefit from the services, activities, or privileges provided by a school.’

This ‘precise’ definition of bullying is much more subjective, convoluted and imprecise than the definition of harassment promulgated by the Supreme Court. In a 1999 case, the court defined student-on-student harassment as conduct so ‘severe, pervasive, and (not “or”) objectively offensive’ [emphasis supplied] that its victims are ‘effectively denied equal access to an institution’s resources and opportunities’. The ACLU’s general support for expansive student speech codes, however, is no surprise; in recent years, it has joined most liberal civil-rights groups in strongly supporting repressive anti-bullying policies. What’s shocking is the ACLU’s explicit approval of provisions extending a restrictive speech code to ‘government agencies’ outside of schools that regulate public spaces frequented by adults.

Abusive public conduct may be subject to regulation, of course, even when it qualifies as expressive conduct. Criminal laws prohibit malicious, intentional or repeated harassment of any targeted individual. Civil-rights laws require schools to protect students from harassment that conforms to the Supreme Court’s definition of behaviour that effectively denies students equal educational access. Why, then, are so many liberals so intent on devising new legal concepts and definitions of bullying? Because civil and criminal laws against harassment are fairly narrowly defined and do not allow for expansive speech policing, which is a goal of anti-bullying advocates. The DC bill and the plethora of campus speech codes (available at thefire.org) make clear that the war on bullying is a war on speech, conducted most perversely in the supposed interests of civil rights.

The new civil-rights/anti-bullying advocates have apparently forgotten, if ever they recognised, that freedom of speech, including the freedom to offend, has been essential to their own liberation movements. Women once deeply offended social mores merely by speaking in public; African-Americans surely offended segregationists by demanding seats at the front of the bus; and if gay-rights activists lacked the right to offend the ‘family values’ crowd, gay-pride parades would have been enjoined long ago.

Of course, anti-bullying crusaders will object to this apparent comparison of their just and righteous drives for equality with racist, homophobic, sexist or ethnic slurs directed at vulnerable students. Their objections invite at least three responses: 1) anti-bullying restrictions reach far beyond such slurs, which may well constitute harassment, when they pose cognizable harms; 2) whatever constitutes offensive or demeaning speech is in the ear of the beholder; and 3) the effort to forge consensus on what constitutes a just and righteous cause depends on the freedom of passionate opponents to engage in debate, on their right to give offence and their obligation to take it. I trust I’ve offended advocates of anti-bullying laws, wish them luck offending me in turn, and promise not to sue.

Wendy Kaminer is a lawyer, writer and free speech activist. Her latest book is Worst Instincts: Cowardice, Conformity, and the ACLU. (Buy this book from Amazon (UK).) A version of this article was originally published by theatlantic.com on 4 November 2011.

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