Bullying Policies vs. First Amendment Right of Free Speech

In my blog posting of November 10, entitled “House Passes Matt's Safe School Law”, I announced the Michigan House of Representatives passage of House Bill 4163 which requires school districts to develop bullying policies. I voted for the bill, but did so with reservations, due to its implications for restrictions on our free speech rights guaranteed under the U.S. Constitution’s First Amendment.

I expect this law, if concurred with by the Michigan Senate and signed by the Governor, to face serious legal challenges. As George Will eloquently states in his article, “Free Speech Rights: It’s All in the Interpretation” in today’s AnnArbor.com newspaper, p. A18, the right to free speech is not entirely absolute, because there are the unprotected speech areas of defamation, obscenity, fraud, incitement and speech integral to criminal conduct. Nonetheless, the right of free speech is carefully protected, even in the public school setting.

“Students do not, the Court tells us in Tinker vs. Des Moines, "shed their constitutional rights when they enter the schoolhouse door." But it is also the case that school administrators have a far greater ability to restrict the speech of their students than the government has to restrict the speech of the general public. Student speech cases require a balancing of the legitimate educational objectives and need for school discipline of administrators against the First Amendment values served by extending speech rights of students.

In Tinker, perhaps the best known of the Court's student speech cases, the Court found that the First Amendment protected the right of high school students to wear black armbands in a public high school, as a form of protest against the Viet Nam War. The Court ruled that this symbolic speech--"closely akin to pure speech"--could only be prohibited by school administrators if they could show that it would cause a substantial disruption of the school's educational mission.” http://law2.umkc.edu/faculty/projects/ftrials/conlaw/studentspeech.htm

School districts will need to carefully draft their bullying policies to be sure that prohibited speech would “cause substantial disruption of the school’s educational mission.”

Further, a statute (or any school policy enacted) that is vague (i.e., a person of ordinary intelligence cannot distinguish permitted from prohibited activities) is unconstitutional on its face and can be successfully challenged even by those who could be regulated if the statue (or school policy) were clear and narrowly drawn. The difference between punishable bullying and protected speech is a very gray area. What is the difference between something someone does not like and something hateful? Tone of voice? How menacing you look? How different you look? How close you stand? How many you communicate with? Very tough questions that will likely employ attorneys for years.