First amendment groups warn NJ attorney general of broad ‘cyberbullying’ definition

FIRST AMENDMENT GROUPS WARN N.J. ATTORNEY GENERAL OF BROAD ’CYBERBULLYING’ DEFINITION
November 10‚ 2008

NEW JERSEY — Free speech advocates sent a statement of concern to the New Jersey State Attorney General urging caution in a policy initiative to prevent cyberbullying on college campuses statewide.

An Aug. 26 letter and press release by State Attorney General Anne Milgram to every New Jersey college and university asked each institution’s president to check that their school’s policies “incorporate the topic of cyber-harassment‚ which includes stalking‚ bullying‚ and/or sexual exploitation‚ into your school’s code of conduct‚ with consequences for those who engage in these activities.”

Milgram’s request to instill punishment on college-aged adults partaking in cyberbullying is a first for the United States. Most punishments nationwide for the problem have usually occurred in the elementary‚ middle‚ and high school levels.

Her letter was an outgrowth of a consumer fraud investigation of the controversial and popular college Web site JuicyCampus.com. The site allows anonymous posting by users who have sometimes written insulting personal remarks about specific students on their campuses. Topics discussed on the site range from the smallest trivia to discussion of alleged sexual experiences with named individuals.

In response to Milgram’s initiative‚ three groups that advocate for the protection of First Amendment rights — the Student Press Law Center (SPLC)‚ the Foundation for Individual Rights in Education‚ and the New Jersey chapter of Society of Professional Journalists (NJSPJ) — sent a letter cautioning of the possible unintended consequences of broad speech restrictions.

In the letter‚ the groups acknowledge speech that is not protected by the First Amendment but warn that prohibiting harmless speech under the undefined legal term “bullying” could cause constitutional problems.

“An open-ended directive that colleges enact codes of conduct that punish the use of computers for ’bullying’ will invariably cause some administrators to penalize lawful speech that falls within the protection of the First Amendment‚” the groups wrote. “There is a difference — qualitatively‚ and constitutionally — between speech that threatens versus that which merely causes hurt feelings.”

David Wald‚ a spokesman for the New Jersey Attorney General’s office‚ said personal information like college students’ dorm room addresses and phone numbers was part of the reason Milgram wrote the letter to college and university presidents.

“That’s part of it and of course things that are malicious and just wrong‚” Wald said. “Those are the things we worry about when people abuse the Internet.”

Wald said Milgram intended on speaking with the New Jersey President’s Council to address her concern for a cyber-bullying policy to be enforced at their colleges or universities on Nov. 17 at Rutgers University in New Brunswick. But‚ an official for the NJPC said the Attorney General intends on speaking to “every vice president of student affairs” at a private meeting not intended for the public on Nov. 14 at Middlesex County College in Edison.

The NJPC‚ according to its Web site‚ is a “50 member board representing New Jersey’s public‚ private‚ and community colleges and universities” and “made up of the presidents of the state’s public and independent institutions of higher education that receive state aid.”

Mark Goodman‚ Kent State University professor and Knight Chair in Scholastic Journalism and former executive director for the SPLC‚ said Milgram’s letter is not asking‚ but rather telling university and college administrators to enforce a policy at their institution.

“I think she’s implying‚ ’you better do it or the Attorney General’s office will be very unhappy‚’” Goodman said. “Of course the Attorney General has no greater authority than anyone else to force an institution to violate the Constitution. But‚ I can assure you most colleges or universities that receive a letter from their state attorney general will take it seriously.”

Goodman also warned alternative and Web-based publications on college campuses to be more concerned. He said college newspaper editors around the state of New Jersey should make an issue of Milgram’s letter and make it a matter of discussion and debate so that the Attorney General can publicly respond to the problem.

“What I would suggest is every college newspaper in New Jersey need to editorialize that irritating people is not illegal‚” Goodman said. “The First Amendment protects the right to publish mean and annoying information.”

The groups’ letter to Milgram offered help by the SPLC in creating a standard based on current laws against harassing behavior‚ but without the term “bullying” as a new standard.

“Our primary concern is that‚ if cyberbullying is to be recognized as a new and distinct basis for discipline‚ colleges be given unambiguous legal standards to apply‚ so that legitimate speech on matters of public concern not be swept up with the cyberbullying dragnet‚” the groups wrote. “Colleges are places in which the free and open exchange of ideas — even controversial and at times disturbing ideas — is to be nurtured.”

By Alberto D. Morales‚ SPLC staff writer
© 2008 Student Press Law Center