First Amendment groups warn N.J. attorney general of broad 'cyberbullying' definition

NEW JERSEY — Free speech advocates sent a statement of concernto the New Jersey State Attorney General urging caution in a policy initiativeto prevent cyberbullying on college campuses statewide.

An Aug. 26 letter and press release by State Attorney General Anne Milgramto every New Jersey college and university asked each institution’spresident to check that their school’s policies “incorporate thetopic of cyber-harassment, which includes stalking, bullying, and/or sexualexploitation, into your school’s code of conduct, with consequences forthose who engage in these activities.”

Milgram’s request to instill punishment on college-aged adultspartaking in cyberbullying is a first for the United States. Most punishmentsnationwide for the problem have usually occurred in the elementary, middle, andhigh school levels.

Her letter was an outgrowth of a consumer fraud investigation of thecontroversial and popular college Web site The site allowsanonymous posting by users who have sometimes written insulting personal remarksabout specific students on their campuses. Topics discussed on the site rangefrom the smallest trivia to discussion of alleged sexual experiences with namedindividuals.

In response to Milgram’s initiative, three groups that advocate forthe protection of First Amendment rights — the Student Press Law Center,the Foundation for Individual Rights in Education, and the New Jersey chapter of Society ofProfessional Journalists — sent a letter cautioning of the possibleunintended consequences of broad speech restrictions.

In the letter, the groups acknowledge speech that is not protected by theFirst Amendment but warn that prohibiting harmless speech under the undefinedlegal term “bullying” could cause constitutional problems.

“An open-ended directive that colleges enact codes of conduct thatpunish the use of computers for ‘bullying’ will invariably causesome administrators to penalize lawful speech that falls within the protectionof the First Amendment,” the groups wrote. “There is a difference– qualitatively, and constitutionally — between speech thatthreatens versus that which merely causes hurt feelings.”

David Wald, a spokesman for the New Jersey Attorney General’s office,said personal information like college students’ dorm room addresses andphone numbers was part of the reason Milgram wrote the letter to college anduniversity presidents.

“That’s part of it and of course things that are malicious andjust wrong,” Wald said. “Those are the things we worry about whenpeople abuse the Internet.”

Wald said Milgram intended on speaking with the New JerseyPresident’s Council to address her concern for a cyber-bullying policy tobe enforced at their colleges or universities on Nov. 17 at Rutgers Universityin New Brunswick. But, an official for the NJPC said the Attorney Generalintends on speaking to “every vice president of student affairs” ata private meeting not intended for the public on Nov. 14 at Middlesex CountyCollege in Edison.

The NJPC, according to its Web site, is a “50 member boardrepresenting New Jersey’s public, private, and community colleges anduniversities” and “made up of the presidents of the state’spublic and independent institutions of higher education that receive stateaid.”

Mark Goodman, Kent State University professor and Knight Chair inScholastic Journalism and former executive director for the SPLC, saidMilgram’s letter is not asking, but rather telling university and collegeadministrators to enforce a policy at their institution.

“I think she’s implying, ‘you better do it or theAttorney General’s office will be very unhappy,'” Goodmansaid. “Of course the Attorney General has no greater authority than anyoneelse to force an institution to violate the Constitution. But, I can assure youmost colleges or universities that receive a letter from their state attorneygeneral will take it seriously.”

Goodman also warned alternative and Web-based publications on collegecampuses to be more concerned. He said college newspaper editors around thestate of New Jersey should make an issue of Milgram’s letter and make it amatter of discussion and debate so that the Attorney General can publiclyrespond to the problem.

“What I would suggest is every college newspaper in New Jersey needto editorialize that irritating people is not illegal,” Goodman said.”The First Amendment protects the right to publish mean and annoyinginformation.”

The groups’ letter to Milgram offered help by the SPLC in creating astandard based on current laws against harassing behavior, but without the term”bullying” as a new standard.

“Our primary concern is that, if cyberbullying is to be recognized asa new and distinct basis for discipline, colleges be given unambiguous legalstandards to apply, so that legitimate speech on matters of public concern notbe swept up with the cyberbullying dragnet,” the groups wrote.”Colleges are places in which the free and open exchange of ideas –even controversial and at times disturbing ideas — is to benurtured.”