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A new threat to free speech on our college campuses

When I was growing up, the local newspaper carried a popular comic strip called "There Oughta Be a Law," by Al Fagaly and Harry Shorten. They would take submissions from readers about some pet peeve or quirk and illustrate how there ought to be law against it.

It is human nature to desire to criminalize other people’s obnoxious behavior.

It is like an immutable law of physics. For every offensive action there must be an equally offensive law to futilely attempt to prevent it from ever happening again. Never mind there are already plenty of laws on the books. The petulant cry is always, "There oughta be a law!"

So when 18-year-old Rutgers University freshman Tyler Clementi reportedly committed suicide by jumping off the George Washington Bridge in New Jersey after two classmates streamed a video of him in a sexual encounter with another man, there has to be a law, as senseless and futile as it might be.

And Sen. Frank Lautenberg and Rep. Rush Holt, both D-N.J., are just the ones to do it.

They have introduced H.R. 6425, the Tyler Clementi Higher Education Anti-Harassment Act of 2010, "To prevent harassment at institutions of higher education, and for other purposes."

Never mind that the alleged perpetrators — 18-year-olds Dharun Ravi and Molly Wei — already have been charged with invasion of privacy under existing law in New Jersey. They reportedly streamed video from a hidden webcam and alerted others to watch on the Internet by sending a message on Twitter. Prosecutors are said to be considering upgrading the charges to a hate crime.

The folks at FIRE, the Foundation for Individual Rights in Education, are warning that this proposed federal law could be still another threat to free speech on campus, already an endangered species.

"Tyler Clementi was subjected to an unconscionable violation of privacy, but that conduct was already criminal and prohibited by every college in America," FIRE President Greg Lukianoff was quoted as saying in a blog on the FIRE website. "For decades, colleges have used vague, broad harassment codes to silence even the most innocuous speech on campus. The proposed law requires universities to police even more student speech under a hopelessly vague standard that will be a disaster for open debate and discourse on campus. And all this in response to student behavior that was already illegal."

As the blog posting points out, what is particularly troublesome is not what the proposed law says, but what it omits. It leaves out the requirement that the "harassment" be objectively offensive to a reasonable person. Those with the thinnest of skins could invoke the law for the flimsiest of reasons.

Of course, the proposed law specifies communication on the Internet as covered by its sweeping prohibitions, making it hazardous to use Twitter and Facebook and YouTube anywhere in the known universe if anyone, anywhere might be slighted.

And the bill’s threshold is insanely low.

It defines harassment as "conduct, including acts of verbal, nonverbal, or physical aggression, intimidation, or hostility (including conduct that is undertaken in whole or in part, through the use of electronic messaging services, commercial mobile services, electronic communications, or other technology) that … is sufficiently severe, persistent, or pervasive so as to limit a student’s ability to participate in or benefit from a program or activity at an institution of higher education, or to create a hostile or abusive educational environment at an institution of higher education …"

Denying a "benefit," as one FIRE writer pointed out, could prevent PETA protesters from holding up photos from a slaughterhouse outside the cafeteria because it might hamper the "benefit" of eating lunch and keeping it down.

Not only does the law criminalize vaguely defined behavior, it sets up grants to dole out funds for anti-harassment programs at universities.

I’m still looking through my copy of the Constitution for the enumerated power granted to Congress to ban harassment on college campuses and throw money at a supposed problem.

There oughta be a law? Not necessarily.

Thomas Mitchell is senior opinion editor of the Review-Journal. He may be contacted at (702) 383-0261 or via e-mail at tmitchell@reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell.

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