When Harassment Clashes With The First Amendment

It is a real fine line between a person’s First Amendment right to political speech and bullying. When the Safe School Coalition reviewed the anti-bullying statutes it becomes a tightrope walk between free speech and bullying. Whether we like it or not people have a right to make derogatory comments, the hard part is defining when it becomes harassment.

Connecticut Public Act No. 11-232 states that,

1) "Bullying" means (A) the repeated use by one or more students of a written, oral or electronic communication, such as cyberbullying, directed at or referring to another student attending school in the same school district, or (B) a physical act or gesture by one or more students repeatedly directed at another student attending school in the same school district, that: (i) Causes physical or emotional harm to such student or damage to such student's property, (ii) places such student in reasonable fear of harm to himself or herself, or of damage to his or her property, (iii) creates a hostile environment at school for such student, (iv) infringes on the rights of such student at school, or (v) substantially disrupts the education process or the orderly operation of a school. Bullying shall include, but not be limited to, a written, oral or electronic communication or physical act or gesture based on any actual or perceived differentiating characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity or expression, socioeconomic status, academic status, physical appearance, or mental, physical, developmental or sensory disability, or by association with an individual or group who has or is perceived to have one or more of such characteristics;

Whew! That’s a long definition of what is bullying and that is because it is a complex subject. Notice what it says, “…the repeated use by one or more students…“ But the First Amendment gives a person a right to call people names. So if a person another person a derogatory name once it is not bullying. Twice? Three times? Four times? When exactly does it become bullying or harassment?

Consider what it is happening in a Minnesota, according to a 2012 article in the Rolling Stones the school is strongly anti-gay,

Like many 13-year-olds, Brittany knew seventh grade was a living hell. But what she didn't know was that she was caught in the crossfire of a culture war being waged by local evangelicals inspired by their high-profile congressional representative Michele Bachmann, who graduated from Anoka High School and, until recently, was a member of one of the most conservative churches in the area. When Christian activists who considered gays an abomination forced a measure through the school board forbidding the discussion of homosexuality in the district's public schools, kids like Brittany were unknowingly thrust into the heart of a clash that was about to become intertwined with tragedy.

When they started a Gay Straight Alliance (GSA) they were harassed.

…although the club's progress was stalled by the school district that, among other things, was queasy about the club's flagrant use of the word "gay." Religious conservatives have called GSAs "sex clubs," and sure enough, the local religious right loudly objected to them. "This is an assault on moral standards," read one recent letter to the community paper. "Let's stop this dangerous nonsense before it's too late and more young boys and girls are encouraged to 'come out' and practice their 'gayness' right in their own school's homosexual club."

The harassment was so severe that there were a number of suicides at the school and as a result,

The Southern Poverty Law Center and the National Center for Lesbian Rights have filed a lawsuit on behalf of five students, alleging the school district's policies on gays are not only discriminatory, but also foster an environment of unchecked anti-gay bullying. The Department of Justice has begun a civil rights investigation as well. 

Under federal law schools must create a safe space for learning and a school where student are harassed because of who they are to the point of committing suicide it is not a safe space for learning.