Overcriminalizing Childhood: Maryland Turns Distressing Speech Into A Crime

Under the First Amendment, the government has far less power to restrict speech when it acts as a sovereign (such as when it criminally prosecutes people for their speech) than when it uses non-criminal disciplinary tools to regulate speech in its own government offices or (in certain circumstances) the public schools.

For example, a federal appeals court recently ruled in In re Kendall that the Virgin Islands Supreme Court couldn’t constitutionally jail a trial judge for his uppity speech against it, even if his speech was inappropriate for a judge, since “the government’s broader authority to” to control inappropriate judge or lawyer “speech about ongoing proceedings” did not “also permit the government to hold a judge in criminal contempt for” such speech. As the federal appeals court observed, “Criminal contempt is no mere disciplinary tool. It derives, like all crimes, from a government’s power as sovereign. Because the government’s use of the criminal-contempt power is the sine qua non of a sovereign act, the government has no greater authority to hold someone in criminal contempt for their speech about ongoing proceedings than it would to criminally punish any speech.”

But Maryland’s legislature has forgotten that, in passing a new broad anti-bullying bill, as Cato Institute scholar Walter Olson notes, restricts constitutionally protected speech aimed at minors, even outside the schoolhouse gates. As Olson reads it, “there is no requirement that the defendant know that the person being subjected to intentional emotional distress [by the speech] is a minor—engaging in a vigorous ‘flame war’ with a Maryland resident might turn out to be criminal if the username ‘ParentInLinthicum’ turns out to conceal a teenage user.” Courts have held that schools have less control over student speech outside school boundaries, in cases like Klein v. Smith (1986), but Maryland’s law restricts speech in society generally, by both minors and adults. The government obviously cannot rely on public school officials’ custodial and tutelary power over student speech to restrict the speech of adult non-students, much less their speech outside the schools.

More importantly, Maryland’s new law criminalizes speech rather than merely giving school officials the discretion to take disciplinary action in school against it. The distinction between what disciplinary rules can reach on the one hand, and what criminal penalties and tort lawsuits can punish on the other, was made clear by the Supreme Court in its decision in Connick v. Myers (1982), where the Supreme Court ruled that public employees could be disciplined or even fired by their agency for speech that does not address a matter of public concern, even though criminal sanctions and tort lawsuits over such speech would be forbidden by the First Amendment.  As the court observed, “We do not suggest, however, that Myers’ speech, even if not touching upon a matter of public concern, is totally beyond the protection of the First Amendment . . .For example, an employee’s false criticism of his employer on grounds not of public concern may be cause for his discharge, but would be entitled to the same protection in a libel action accorded an identical statement made by a man on the street. We hold only that, when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.”

The fact that speech is emotionally distressing may be a factor in whether to discipline a student for it under school rules, but it is not a justification for criminal prosecution, or even, generally speaking, a tort lawsuit. (See the Supreme Court’s decision in Snyder v. Phelps, which overturned a damage award for hateful speech that tortiously inflicted emotional distress, citing the First Amendment.)

Recently, there have been calls to restrict speech with unpopular ideological viewpoints as “bullying” (such as anti-abortion speech and anti-gay-marriage speech). In the name of preventing “bullying,” Minnesota legislators have pushed an unconstitutionally vague, overbroad, and viewpoint-discriminatory ban on speech in public schools and in private schools that receive state funds. That bill would ban certain speech that denies students a “supportive environment” as bullying. Its ambiguity and subjectivity violate the First Amendment.

“Workplace bullying” activists want to impose broad definitions of bullying at the expense of free speech and allow employers to be held liable for damages for such speech in lawsuits, even though the First Amendment limits the government’s ability to regulate speech in private workplaces. Activists claim bullying is an “epidemic” and a “pandemic.” But in reality, the rate of bullying has steadily diminished in the nation’s schools.