FIRE has been doing an outstanding job detailing the First Amendment problems presented by the Tyler Clementi Higher Education Anti-Harassment Act. Simply put, by omitting any requirement that harassing conduct be “objectively offensive,” the Act renders conduct unlawful based on the subjective response of the alleged victim, increasing the danger that students could be guilty of “harassment” if the victim simply feels harassed — regardless of the actual severity of the conduct. The resulting definition of student-on-student harassment is at odds with Supreme Court precedent and with numerous other federal precedents. In short, it creates a federally mandated speech code.
And to what end? It’s hard to see any benefits from the Act. Tyler Clementi was driven to suicide not by mean words, but by actual criminal conduct. The Act would do nothing to further criminalize the unlawful conduct in his case, nor would it have enhanced protections against harassment at his university. Rutgers has long had a speech code more onerous than that required by the Act. In fact, the vast majority of universities — public and private — already have extraordinarily broad speech codes.
The Act’s primary effect will be a greater chill on free expression. Students who dissent from the university’s radical sexual orthodoxy will be accused of endangering their classmates’ lives. Already those who defy prevailing norms are labeled as “bigots” or “homophobes” and accused of acts of harassment and hate. If the Act becomes law, campus censors will wield a potent new bureaucratic and rhetorical weapon against the marketplace of ideas. Bullies may not care about speech codes, but law-abiding students do, and they may choose silence rather than risk a trumped-up harassment charge.
In the aftermath of tragedy, there is often a desperate call for the government to “do something,” and in Tyler Clementi’s case, it is doing something — prosecuting the offenders under state law.