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First Amendment for College Administrators

Lesson 4: Harassment Policies on Campus

Video 3: Cyberbullying and Bias Response Teams

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Video Transcript

You have learned that the First Amendment protects a very wide range of expression on public college and university campuses and that not all expression is protected. Some limited and narrowly defined categories of speech, such as “true threats” or “incitement” are not protected by the First Amendment. 

But what about cyberbullying? Isn’t that a category of unprotected speech?

As a category of unprotected speech, the answer is “no.” The Supreme Court has not identified “cyberbullying” as a distinct category of unprotected speech. And while some conduct labeled as cyberbullying could include unprotected speech like “true threats,” the First Amendment makes no general exception for offensive, repugnant, or hateful expression. 

Some conduct one might describe as “cyberbullying” might also constitute “discriminatory harassment,” a type of conduct that may include elements of speech. Peer-to-peer discriminatory “harassment” is a legal term of art with a precise legal definition that appropriately balances the right to freedom of expression with the legitimate state interest in addressing harassment based on sex, race, national origin, or other protected class. In the 1999 case Davis v. Monroe County Board of Education, the Supreme Court defined discriminatory harassment as targeted, unwelcome conduct that is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” 

By definition, harassment includes only extreme and usually repeated behavior—behavior so serious that it would prevent a reasonable student from receiving his or her education. It’s important to remember that student speech must be far more than simply rude or offensive in order to be punishable as harassment. 

And this standard applies to online activity. Virtually all conduct already prohibited by the Davis definition of harassment will cover what we think of as “cyberbullying.”

Unfortunately, that hasn’t stopped government officials from formulating vague and overbroad definitions of “cyberbullying” that leave students guessing about what speech is and is not prohibited on campus—which in turn chills speech as students conclude it’s safer just to self-censor. 

This kind of regulatory overreach is a serious problem for free speech, especially when campus policies seek to restrict off-campus speech. As the Supreme Court explained in Mahanoy Area School District v. B.L., courts should be skeptical when public grade schools attempt to regulate off-campus speech, lest school administrators control “all the speech a student utters during the full 24-hour day.” In that case, the Court vindicated the First Amendment rights of a high-school cheerleader who was punished for a salty Snapchat she sent off campus and outside of school hours. 

If K–12 schools are limited in their ability to regulate off-campus speech of minors, it should go without saying that the government has an even higher burden to justify restrictions of off-campus speech of adult college and university students. 

Bias Reporting Systems

Many public and private colleges and universities maintain policies establishing bias reporting systems in which students are encouraged to formally report on one another and on faculty members whenever they subjectively perceive someone’s speech as “biased.” 

These bias reporting systems are often facilitated by Bias Response Teams, which are groups empowered to act as de facto speech police. When armed with open-ended definitions of “bias,” often staffed by law enforcement and student conduct administrators, and left without training on freedom of expression, Bias Response Teams represent a serious risk to free and open discourse on campus and in the classroom. In fact, federal courts have invalidated campus bias reporting systems that could result in the punishment of students who are reported. 

And even if a campus Bias Response Team doesn’t have the power to take punitive action, the prospect of an official investigation may make students and faculty more cautious about what opinions they dare to express. Given the power differential between administrators (who have disciplinary authority) and students (who are at their mercy), announcing investigations into clearly protected speech chills campus discourse. Accordingly, investigating allegations that involve nothing more than protected speech is punishment in-and-of-itself — even if other sanctions don’t follow.

Even worse, some state legislators have considered and even implemented legislation that creates statewide bias reporting systems in which neighbors could report “bias” on neighbors.  FIREhas monitored and actively opposed such systems, which would be unconstitutional.

Bias reporting systems and the bias response teams that enforce them may seek laudable goals like tolerance, education, and awareness. But those goals cannot be achieved at the expense of freedom of speech.  

Next, we will hear more about the Supreme Court’s decision in Davis, the case mentioned earlier that defines peer-to-peer discriminatory harassment in the educational context.

Suggested Resources

• (2018)

• (2020)

•  (1999)

• FIRE, "Bias Response Team Report" (2017)

• Greg Lukianoff, "Should colleges be required to prohibit bullying and harassment?" (2010)