Is Bullying Protected Speech? (Part I)

I thought if I studied the law (on my own), I may find answers to the many of the complicated questions that we face in society. However, the law is very complicated and convoluted and it is really hard to answer these questions. In the following evaluation, I only consider bullying that is speech and not physical contact which would undoubtedly be a crime (assault). Let’s evaluate some relevant precedent by the Court when it comes to the First Amendment and free speech.

We know that people have the right to bigoted and hateful speech (words, actions, and conduct), much like flag burning (Johnson v. Texas, 1989) and cross burning (R.A.V. v. St. Paul). In Snyder v. Phelps (2010), the Court held that religious protests at the funerals of soldiers was constitutional if the protests were held outside a buffer zone. I will not publish what the protestor’s signs said, but they were extremely hurtful and hateful. The Court held that although the signs were provocative, the protest was orderly and peaceful. In the United States v. Stevens (2010), the Court held that owning violent films showing animals being crushed to death was protected speech, but the act of creating those films is probably not be protected (violated animal cruelty laws). The federal government is not completely powerless to regulate speech. In O’Brien v. United States (1968) the Court held that the burning of military draft cards was not protected speech because the government had a “compelling” reason for prohibiting the behavior: Since the government has broad powers over the formation of armies, this was compelling enough for the Court to side with them. There are only a few cases of the government mandating speech, but most of this deals with freedom of the press and political speech. In Red Lion Broadcasting Company v. Federal Communications Commission (1969) the Court held the Fairness Doctrine was constitutional. In this case, the government could mandate broadcasters to tell both sides of political issues. But just five years later in Miami Herald v. Tornillo (1974) the Court held a Florida statute forcing newspapers to print opposing political views was unconstitutional. In my view, Tornillo all but overrules the Red Lion case (although it did not officially do so). So government mandated regulation over political speech is not allowed (see also Citizens United).

Bullying of public personalities (New York Times v. Sullivan, 1964) may be viewed differently than private personalities (Gertz v. Robert Welch, 1974). Private citizens are protected more by defamation claims that public citizens who more readily have resources to fight allegations. Lying is also protected speech that the government cannot regulate unless they have a “compelling interest” to do so (United State v. Alvarez, 2012). In many cases, it comes down to how the law is written and if the action of abridging free speech is needed for some “compelling government interest”.

Some speech is not protected such as obscenity (Roth v. United States, 1957) unless the obscenity is in the privacy of your own home (Stanley v. Georgia, 1969). In Miller v. California the Court put some guidelines on obscenity that may make it permissible such as if the obscenity has a “literary, artistic, political, medical, or scientific value.” Some speech may not be protected if it “incites violence” (Brandenburg v. Ohio, 1969) or are “fighting words” (Chaplinski v. New Hampshire, 1942). But as the above cases show doctrines abridging free speech are hard to prove because it must be shown someone is intentionally trying to incite violence or pick a fight.