Although the First Amendment to the Constitution guarantees the freedom of speech, that freedom is not absolute. For instance, the Supreme Court has held that “fighting words” (those likely to result in imminent violence) and obscenity are not protected by the Constitution. Moreover, school officials can suppress student speech where it may “materially and substantially disrupt the work and discipline of the school,” even if such speech would be protected in the non-school context. While “hate speech” and other forms of verbal bullying are not “unprotected” like fighting words and obscenity, the government may regulate bullying so long as the legislation is not overly-broad or overly-vague so as to trample on constitutionally protected speech. Indeed, nearly every state has passed some form of anti-bullying legislation.
In addition to anti-bullying statutes, common law tort claims (aka law created by judges rather than by legislatures) provide a legal remedy to bullying. These torts include assault, battery, intentional infliction of emotional distress (“IIED”) and defamation. Significantly, there is no “age limit” on tort defendants and thus, a 15-year-old may be sued as an adult. A victim may be awarded damages for pain and suffering as well as other associated costs (such as medical bills).
Finally, many school handbooks outline prohibited behavior. Students may report bulling (religious or otherwise) to school officials who in turn, may suspend or expel the bully pursuant to the terms of the handbook.
Although there is no federal law directly addressing bullying, federal law prohibits discriminatory harassment based on religion. When bullying involves religious discrimination, federally-funded schools must resolve the harassment. The U.S. Department of Education and the U.S. Department of Justice (DOJ) enforce these federal laws. Anyone may report harassment to a school. When a school receives a complaint, they must remedy the situation and prevent retaliation against the victim.
Most laws include the following provisions:
- a definition of bullying;
- an outline of prohibited conduct;
- a procedure for students to report bullying;
- a description of punishments for bullying;
- a procedure for investigating and responding to reports of bullying.
Most states allow students to report bullying anonymously and with protection from retaliation. To know more about your state’s anti-bullying laws, check out Stopbullying.gov (http://www.stopbullying.gov/laws/index.html) where you will find an easy-to-read website outlining the key components of each state’s anti-bullying legislation.
Some states go beyond the above provisions. New Jersey has the toughest anti-bullying legislation in the country, requiring each school to report every incident of bullying to the State. The State then grades each school based on bullying policies and incidents. Bullies can be suspended or expelled for any type of bullying, including minor teasing. Likewise, California has a separate provision directly targeting cyberbullying whereby schools may suspend students for bullying classmates on social networking sites like Facebook.
Unfortunately, some states such as Tennessee, Illinois and Michigan have attempted, albeit unsuccessfully, to carve out religious exemptions to allow, rather than punish, religiously motivated bullying. For instance, Michigan’s law would have permitted harassment by students and teachers if rooted in a “sincerely held religious belief.” Proponents claim that the First Amendment requires exemptions for religious speech. However, a religious exemption is neither required nor permitted by the First Amendment.
The Free Exercise Clause does not require a religious exemption because neutral laws of general applicability, such as anti-discrimination laws, do not violate the First Amendment. The Free Speech Clause would not even tolerate an exemption because it demands that laws be content-neutral – meaning they cannot suppress speech on some topics but not others. If the legislation punished racial bullying (i.e. prohibited a student from wearing a T-shirt with a racial slur) but permitted religious bullying (i.e. permitting the same shirt with a religious slur), the law would be content-based and therefore unconstitutional absent a compelling state interest.
Some schools may be in violation of the Constitution (such as the Free Speech Clause, Establishment Clause, or even the Equal Protection Clause). If your school is permitting some forms of bullying over others, notwithstanding the clear constitutional requirements of content-neutrality and equality, you (or your parents) should contact the AHA Appignani Humanist Legal Center to ask if there has been a violation. You can make the report anonymously.
As mentioned earlier, there are several tort claims you could bring in civil court to enforce your legal rights. A tort simply means a “civil wrong.” A few of these torts are described briefly below. If you think that you have been the victim of a tort, such as assault or battery, contact the Appignani Humanist Legal Center or speak with an attorney to see what can be done. Oftentimes, tort claims are settled before ever reaching a courthouse. However, the student should be aware of the possibility of going to court, and the expenses associated with it. Either way, it is important to speak with an adult or an attorney if you are a victim of a tort. The school may suspend or expel the perpetrator and at the very least, provide the victim with some sort of protection from further abuse.
Assault is defined as intentionally causing a reasonable apprehension of an immediate harmful or offensive contact. While bullying may not always give rise to assault, it can. Bullying is usually a series of small incidents whereas assault tends to be a single serious incident. However, one bullying incident can constitute an assault if it meets the above definition.
Battery is defined as intentionally causing harmful or offensive contact with a person or their close personal belongings (i.e. a purse). Like assault, battery can be punished criminally and civilly. As with assault, the victim need not prove “actual damages” and thus “nominal damages” ($1) may be awarded if the victim does not suffer any pecuniary loss.
Intentional Infliction of Emotional Distress (“IIED”)
If the bully’s behavior is particularly egregious, it may support a claim for IIED. The following elements must be met: (1) intentional or reckless (2) extreme and outrageous conduct (3) causing the victim’s (4) severe emotional distress. A court is more likely to find IIED if there was a pattern of conduct rather than an isolated incident, the victim was vulnerable and the bully knew it, or if racial slurs were used.
If the bullying involves spreading rumors, the victim may have a claim for defamation, most likely in the cyber-bullying context. Defamation is either written (libel) or spoken (slander). The primary elements of defamation include: (1) a false statement of fact; (2) about the victim; (3) “published” (meaning communicated to a third person); (4) if the matter is of public concern, the victim must prove fault (either negligence or malice depending public or private figure status); and (5) damages (only if it is slander not falling into a “per se” category). Also, if the speech is on a matter of public concern, the plaintiff (victim) rather than the defendant has the burden of proving that the statement was false.
The victim will only need to prove that she was indeed injured when the defamation was spoken. If the defamation was in written form (i.e. on Facebook or in a text message) then it is “libel” and damages are presumed (meaning that you as the victim do not need to prove you were injured by the rumors). Because cyberbullying almost necessarily involves libel rather than slander, the fifth element is probably less relevant than the others. Furthermore, damages may be presumed for a few special types of spoken defamation (“slander”). If the falsehood regarding one of these four topics, then the victim need not prove she was injured: (1) statements involving victim’s lack of competence to perform in her trade or profession; (2) statements saying the victim has a loathsome disease (i.e. an STD); (3) statements that the victim committed a serious crime; and (4) suggestions of a lack of chastity in a woman. Remember that the statement still needs to be false in order for it to be defamation.
When speech is on a matter of public concern, it receives more protection by the First Amendment than if it were of private concern. The main difference is that when it is a private concern, the defendant (bully) must prove that the statement was true as opposing to making you, the victim, prove that the statement was false. This could significantly change the outcome of the case.
The courts have had a hard time clearly defining what is a matter of public concern. One court explained, “[s]peech involves a matter of public concern when it involves an issue of social, political, or other interest to a community.” In another case, a court held that speech concerning homosexuality was a matter of public concern. The Supreme Court determines whether speech is a matter of public concern based on the expression’s content, form and context. Generally, if the speech is “newsworthy” it is considered a matter of public concern.
Finally, it matters if you are a “public” or “private” figure. Most students are “private figures.” Public figures are usually government officials or celebrities. If the speech is on a matter of public concern and involves a public figure, then the victim (plaintiff) must prove that the bully (defendant) acted with malice – which means that you must show that the bully knew the statement was false, or acted with reckless disregard for the truth. If you are a private figure and the rumor is a matter of public concern, then you only need to prove that the bully negligently made the statement (something less than “reckless”).
Finally, students may find relief to bullying in their school handbook. For example, one California school’s handbook explains that a student can be suspended or expelled if he “engaged in an act of bullying, including, but not limited to, bullying committed by means of an electronic act, directed specifically toward a pupil or school personnel.”
 “A tort is a civil wrong. Tort law deals with situations where a person has unfairly caused someone else to suffer harm. Tort law is different from criminal law, because in tort law, anyone can bring a claim. In contrast, criminal cases tend to be brought by the state. http://en.wikipedia.org/wiki/Tort
 Although Title VI of the Civil Rights Act of 1964 does not directly cover religious discrimination, the DOJ has jurisdiction over religion under the Act. See, www.Stopbullying.gov
 However, Montana does have a model policy (that provide guidance to districts and schools) that governs bullying. See http://www.stopbullying.gov/laws/montana.html
 These states include but are not limited to: California, New Mexico, Oregon, Washington, Hawaii, Arkansas, Iowa (includes “religion” and “creed”), Illinois, Florida, North Carolina, Virginia, New York, Maine, Maryland, New Jersey, Vermont (“creed”), D.C., and New Hampshire* (although the law does not list specific characteristics, it prohibits bullying based on a pupil’s actual or perceived personal “beliefs”). http://www.stopbullying.gov/laws/index.html (click on each state).
Incidentally, South Dakota specifically restricts school district anti-bullying policies to include mention of any specific groups. http://www.stopbullying.gov/laws/south-dakota.html
 The four slander per se categories that permit damages to be presumed are: (1) communications that directly call into question the victim’s competence to perform in her trade or profession; (2) statements claiming the victim has a loathsome disease; (3) allegations the victim committed a serious crime; (4) suggestions of a lack of chastity in a woman.
 Bartnicki v. Vopper, 532 U.S. 514, 528 (2001); Four Navy Seals v. Associated Press, 413 F.Supp.2d 1136, 1145-46, 1141 (S.D.Cal, 2005)(photos depicting faces of soldiers were “newsworthy”). Another court has suggested that a “determination of what is newsworthy, may be powerful evidence of the hold those subjects have on the public’s attention,” for the purposes of matters of “public concern.” Gaeta v. New York News, Inc., 62 N.Y.2d 340, 349-350 (1984) (internal quotations omitted)(article focusing on one mental patient merited public exposition; the causes of his initial confinement, and a chronology of his hospitalization, were a matter of legitimate public interest).