Why harassment isn’t free speech

One of the limitations on free speech in American public schools is when speech becomes harassment. What constitutes harassment, and why is it a good idea to put limits on this sort of behavior?

Here is an interesting example from a high school in Nova Scotia. Granted, Canadian law isn’t American law, but it’s the case that I care about. A student named William Swinimer was suspended for wearing a t-shirt to school with the slogan, “Life Is Wasted Without Jesus.” Now this, alone, would not be an actionable offense in the US or in Canada. In a previous post on student speech, I discussed students’ rights to express all sorts of potentially offensive ideas via their dress (one student wore a Jesus costume to his school’s “Fictional Character Day”). Swinimer, however, had been repeatedly preaching his religion and telling other students that they would go to hell. He was, it seems from the report, disrupting the school learning environment and making it more difficult for other students to learn. As a result, he was ordered to stop wearing the offending t-shirt (which he had worn every day for several weeks). When he continued to wear the shirt, Swinimer was suspended for five days.

Is this the right approach? It seems to me that the distinction between speech that should be protected in schools (including speech that is unpopular or offensive), and behavior such as the above, is a valid one to make. The Washington chapter of the ACLU has an article explaining why behavior such as Swinimer’s constitutes “harassment,” and why it should be restricted:

Students do not abandon their rights to freedom of speech at the classroom door. A school should allow students to speak freely so long as their speech does not substantially interfere with the educational process or the rights of other students. However, certain conduct may be prohibited in a school setting even where it could not be punished in other settings.

For example, it does not violate freedom of speech when teachers require that students stop extraneous conversations and pay attention in class; this form of student speech interferes with the educational process. In the same way, harassment of students by other students interferes with the operation of the school and infringes on the rights of the harassed students to enjoy equal treatment under law and equal educational opportunity. Schools have a compelling interest in eliminating discrimination and harassment, and this goal may be pursued in a manner that does not abridge the right to freedom of expression.

In a previous post (linked above), I discussed why free speech, and therefore the free exchange of ideas, is important. It makes our society better to be able to say what we think, and respond to ideas that we find false or pernicious. Censorship does not solve problems. Harassing individuals, however, and interfering with their ability to learn is a problem, and should rightly be prohibited. In certain cases where harassment or bullying of a group is particularly prevalent or severe, we have an even greater responsibility to see that those students are protected, lest something terrible happen. This is why it was disgusting last November to see Michigan Republicans attempt to pass a law to let school bullies off the hook if they acted out of a “sincerely held religious belief or moral conviction.” Against a national backdrop of anti-gay bullying and teen suicide, Republicans wanted christians to have free license to disparage students for being gay.

So to return to the current issue, while I defend William Swinimer’s right to express offensive beliefs in school, I think it’s good to draw the line at pestering other students and disrupting the learning environment.

(via Butterflies and Wheels)

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2 Comments

Filed under First Amendment, Free Speech, Freethought, Government, Human Rights

2 responses to “Why harassment isn’t free speech

  1. Nice to see the rare moment of common sense. You know if the student pestering others were Muslim, the right wing parents would have been hysterical about it.

  2. journey man

    Telling people about the Gospel is not bullying. Was this person threatening other people or just passing on information?

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