Tyler Clementi and the Anti-Bullying Panic

Cross-posted from Open Market

A jury has convicted Dharun Ravi of hate crimes in the Tyler Clementi case, which created a furor over bullying that led to legislation that endangers free speech on campus, and helped spawn a thriving “anti-bullying” industry that has enriched opportunistic consultants and self-proclaimed experts. Ravi surreptitiously captured on webcam his gay college roommate, Tyler Clementi, kissing another man. Clementi committed suicide two days later. Initial media accounts falsely claimed that Ravi had filmed Clementi having sex, not just kissing, and sensationalized the case through factual exaggerations. Press reports also jumped to conclusions about the mental state of Ravi and Clementi, and falsely made it sound like there were gaps in existing law that somehow facilitated Ravi’s mistreatment of Clementi. (In reality, Rutgers, like most colleges, enforces rules against sexual and sexual orientation harassment, and New Jersey state law forbids invasions of privacy, and holds colleges liable for negligently failing to respond to anti-gay harassment committed by students, as a 2007 ruling by the New Jersey Supreme Court made clear.)

Jurors convicted Ravi of hate crimes without making any finding that he was motivated by hate, argues Jacob Sullum at Reason magazine, in a commentary entitled, “Did Dharun Ravi Commit a Hateless Hate Crime?” Prosecutors did not allege at trial that Ravi’s actions, which Clementi himself dismissively referred to as a brief “five sec peep,” actually drove Clementi to commit suicide, and Ravi’s lawyers were denied access to key writings by Clementi that might have revealed other factors contributing to the suicide. Jurors did find that Clementi “reasonably perceived“ himself to have been targeted for intimidation based on his sexual orientation. Law Professor Ann Althouse says that it “sounds like Ravi was found guilty because he couldn’t disprove a motivation that was inferred based on Clementi’s subjective perception. And yet the defense was deprived of much of the evidence of Clementi’s subjective state of mind.” (Note that Ravi wrote to Clementi that he had a close friend who was gay.)

Law Professor Glenn Reynolds was blunter: “the mob was angry and demanded a sacrifice.” (Ravi, who was brought to America from India as a small child, now faces likely deportation to that country as a result of his conviction.) Finding someone guilty based on an “inferred stated of mind” — as New Jersey’s hate crimes law specifically authorized the jury to do in finding Ravi guilty of bias-motivated intimidation – may violate the Supreme Court’s decision in Virginia v. Black, which declared unconstitutional a state’s attempt to legislatively declare certain conduct presumptively intimidating in purpose or effect.

The Clementi case illustrates the broad reach of hate crimes laws, not any gap in existing law that would justify more draconian laws. But in response to Clementi’s suicide, liberal congressmen proposed the Tyler Clementi Higher Education Anti-Harassment Act (which has yet to pass Congress), and New Jersey enacted a sweeping new anti-bullying law. Both of these pieces of legislation restrict speech and were criticized as violations of the First Amendment by the Foundation for Individual Rights in Education, a civil liberties group.

As Sullum noted earlier, after New Jersey passed its lengthy and complicated anti-bullying law, known as the “Anti-Bullying Bill of Rights,” the result was less free speech on campus, and more costly unfunded mandates for local school districts. The law, which contains 18 pages of “required components,” gave a huge boost to a burgeoning “anti-bullying” industry that seeks to define bullying as broadly as possible (to include things like “eye-rolling,” or always associating with the same group of friends) in order to create demand for its services. Hundreds of New Jersey schools “snapped up a $1,295 package put together by a consulting firm that includes a 100-page manual.”

Liberal lawmakers and the Obama administration have sought to define as “bullying” or “cyberbullying” speech that is clearly protected by the First Amendment, such as harsh criticism of politicians. We wrote earlier about how the current panic over bullying is leading to attacks on free speech, political debate, and free association in the schools; political pandering; dishonest stretching of existing federal laws by federal officials; and violations of basic principles of federalism. The panic over bullying ignores the fact that the incidence of bullying has fallen for many years in the nation’s schools.

Press coverage has also been slanted and factually inaccurate in covering other high-profile allegations of school bullying, such as in the Anoka-Hennepin school district. One press account described people as victims of anti-gay bullying in that school district even when they could not have been, either because they weren’t gay, or weren’t mistreated based on their sexual orientation, or didn’t even attend its schools (like a University of Minnesota student), simply because they happened to live in the area, and committed suicide. The school district is located in Minnesota, which has a broad gay rights law. But recently, the school district was sued in federal court over anti-gay harassment, and settled the case after the U.S. Department of Education, which deliberately ignores limits on harassment liability contained in the U.S. Supreme Court’s Davis decision, declared that the school district had violated Title IX by failing to prevent anti-gay harassment (in doing so, the Education Department ignored both the Supreme Court’s definition of harassment, and limits on institutional liability for acts by students).