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The Ever-Expanding Concept of "Bullying" Casts an Ominous Shadow Over Free Speech

A school superintendant has labeled a column in a school newspaper that criticized homosexuality as "bullying." (The Shawano High School newspaper decided to run dueling student opinion pieces on whether same-sex couples should be able to adopt children; the student article that was labeled as "bullying" answered the question “no." The school district also publicly apologized for the column, and said that it is “taking steps to prevent items of this nature from happening in the future.”)

Whatever the wisdom (or lack thereof) of featuring something like that in a school newspaper, it seems strange to argue that a viewpoint in a student newspaper is "bullying." (The Shawano School District’s bullying policy provides that “bullying” may lead to “warning, suspension," "expulsion," etc.) A conservative Christian who thought that homosexuality was immoral successfully challenged a school "harassment" code that punished students with such viewpoints in Saxe v. State College Area School District (2001), a case in which a federal appeals court ruled that there is no "harassment" exception to the First Amendment for speech which offends members of minority groups. Speech cannot be banned simply by labeling it as violence, either: for example, in Bauer v. Sampson, another federal appeals court ruled that a campus newspaper's illustration depicting a college official's imaginary death was protected by the First Amendment, even though the college declared it a violation of its policy against "workplace violence."

But schools and anti-bullying activists have adopted incredibly overbroad definitions of bullying. The anti-bullying website NoBully.com, and schools like Fox Hill and Alvarado Elementary, define even “eye rolling” and other expressions of displeasure or hostility as bullying, even though doing so raises First Amendment problems.

The Obama administration claims bullying is an “epidemic” and a “pandemic.” But in reality, bullying and violence have steadily gone down in the nation’s schools, as studies funded by the Justice Department have shown. The Obama administration's StopBullying.gov website defines a vast array of speech and conduct as bullying: it classifies “teasing” as a form of “bullying,” and “rude” or “hurtful” “text messages” as “cyberbullying.” Since “creating web sites” that “make fun of others” also is deemed “cyberbullying,” conservative websites that poke fun at the president are presumably guilty of cyberbullying under this strange definition. (Law professors such as UCLA’s Eugene Volokh have criticized bills by liberal lawmakers like Congresswoman Linda Sanchez (D-Calif.) that would ban some criticism of politicians as cyberbullying.)