Is Bullying Protected Speech? (Part II)

Other speech, such as speech made by groups of people is also protected such as in Snyder v. Phelps. Many times bullying is done by a group of people committing the act, not just one person. In cases involving group speech, the government does not have much influence unless once again there may be a “compelling government interest” to do so. In Roberts v. United States Jaycees (1984), the Court held that a club designated for males between the ages of 18 and 35 discriminated based on gender. This was a really bad decision because Americans have the right to peacefully assemble and the government cannot tell Americans who they can and cannot associate with (Gilmore v Montgomery). For instance, it is not a crime for the Ku Klux Klan to peacefully assemble. The Ku Klux Klan also discriminates in their membership and their beliefs, as hurtful and hateful as they may be, are not against the law. Roberts was mostly nullified by Boy Scouts of America v. Dale (2012) where the Court held that the Boy Scouts did not have to admit homosexuals as scoutmasters. Public establishments such as restaurants, hotels, movie theaters, etc. cannot discriminate in any fashion. It is important to remember that not all discrimination is bad, it may occur in much more accepted or subtler terms. Discrimination is wrongly viewed as a bad word. Here are some examples: Companies discriminate based on an applicant’s ability; basketball teams discriminate against short people; men pay higher auto insurance premiums because they are more dangerous drivers; dating or marriage may be considered discriminatory based on our preferences for a partner; restaurants and adult clubs may discriminate on weight and appearance; restaurants hire qualified chefs and companies may rely on experience; many colleges discriminate based on gender and it is seen as an opportunity that many young adults prefer; and therefore all discriminatory ideas, thoughts, and beliefs are protected by the First Amendment

There is one very interesting case: Brown v. Entertainment Merchants Association (2010). In this case, the Court held that a California law prohibiting minors from purchasing “violent” video games without the consent of a parent or guardian was unconstitutional because it violated the First Amendment rights of children. What was important in this case was Justice Thomas’s dissent. Thomas claims that children or minors do not have the same protected speech rights guaranteed in the First Amendment as adults. Thomas illustrates his point through the history of this nation which shows that children are to respect their elders and to do as they are told. A child’s speech may be limited to what their parents want their speech to be (speech and conduct). Even the government has placed vital free speech limitations on children. For example, the government has placed a minimum age requirement for voting, enlisting in the military, marrying, curfew laws, drinking age, to purchase provocative materials (Ginsberg v. New York, 1968), and children cannot consent to medical procedures to name a few. But in Erznoznik v. Jacksonville (1975) the Court held “Minors are entitled to a significant measure of First Amendment protection, and only in a relatively narrow well-defined circumstances may the government bar public dissemination of protected materials to them.” Erznoznik lifted restrictions “designed to protect minors at drive-in movies”.

So what does all this mean when it comes to bullying? It means, for the most part, the government usually sides with free speech. The government has the burden of proof to show a compelling state interest in limiting free speech of individuals or of groups of bullies. For instance, the government may want to stop attempted or successful suicides of minors that may be driven by bullies. For this to be compelling a vast majority of minor suicides must be the result of bullying. Unless obscenity (pornography) is used as a bullying mechanism, it is hard to prove intent of other types of speech limitation doctrines such as “fighting words” or to “incite violence”. If Flag burning, cross burning, or hateful protests outside a military funeral do not constitute “fighting words” or are not intended to “incite violence” the government has a high bar to prove a bully’s words fit into these categories. Bullies can use hateful and discriminatory words and they can lie and all of that is protected speech. But what if it was decided that minors or children had less protected free speech than adults, then it may be easier for the government to place regulations on children for bully speech. Brown was a close 5-4 decision with conservatives and liberals on both sides of the outcome. If Thomas’s theory of child speech would come to fruition then bullying could be regulated for minors without the need to prove a compelling state interest (but Thomas’s views are not the law because they violate Erznozdik and Brown). In Brown, California was unable to prove a “direct causal link between violent video games and harm to minors.” There was no proof video games made kids more “aggressive” and that would be hard to prove since studies indicated that minors watch as much violent TV as they did playing violent video games. The majority opinion also held the California law was discriminatory since it failed to hold booksellers, cartoonists, and movie producers to the same standard as video game producers. Brown gives you an idea of how difficult it is to write a law that would make bullying unconstitutional because of some compelling government interest.