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Murray's Anti-Bullying Bill Targeting Colleges Limits Free Speech, Critics Say

Newly named Senate Veterans Affairs Committee Chair Sen. Patty Murray, D-Wash., Wednesday, Jan. 26, 2011, in her office on Capitol Hill in Washington.
U.S. Sen. Patty Murray, D-Wash.

Washington state's senior U.S. senator is hoping to revive a push for federal anti-bullying laws aimed at preventing harassment of college students based on their race, gender, religion or sexual orientation. But critics say such laws would impede on the students' First Amendment rights.

Sen. Patty Murray, D-Wash., visited the University of Washington campus Thursday to promote a bill she introduced in the Senate late last month. The measure would require any university receiving federal funds to adopt policies barring "severe, persistent or pervasive" harassment against its students.

"If ... you want to keep those federal funds, you will have an anti-bullying policy," Murray said during her visit.

'Well-Intentioned' Push Raises Free Speech Group's Concerns

Sen. Patty Murray, D-Wash.
Credit Kyle Stokes / KPLU
Sen. Patty Murray, D-Wash., visits the University of Washington campus Thursday as part of a push to pass new anti-bullying guidelines for colleges receiving federal funds.

Murray's legislation is an updated version of the Tyler Clementi Higher Education Anti-Harassment Act, named for a Rutgers University student who committed suicide after his roommate posted online video of a sexual encounter he had with another male student in 2010.

The late Sen. Frank Lautenberg, D-N.J., first introduced the bill in 2011. It died in committee.

As with the 2011 bill, this year's proposal has heightened concerns of free speech advocates who say Murray's legislation could do more harm to free speech rights than good for bullied students.

"No matter how well-intentioned, the definition of harassment included in the act is very broad, conflicts with federal court decisions, and would punish core First Amendment speech," said Will Creeley, director of legal and public advocacy at the Foundation for Individual Rights in Education (FIRE).

'I'm A Human Being. I Shouldn't Have Things Like This Happen To Me'

Murray says she was inspired to reintroduce the Tyler Clementi Act upon hearing the story of an intern working in her Washington, D.C. office.

Now 24 years old, Kristopher Sharp ran for vice president of the University of Houston-Downtown's student government last spring. During the campaign, he says the school's dean of students informed him that someone had plastered flyers of him all over campus.

On one side was his picture with an X through the center with the words "Don't Support The Homosexual Agenda." On the back side, someone printed what Sharp says were real medical records showing he was HIV-positive. 

"It was devastating, to say the least," Sharp said, adding school administrators told him there was nothing they could do to remove the posters.

Sharp later found out the university was simply mistaken in its interpretation of existing policy, but he says it underscores the need for further legislation.

"I think young people in this country shouldn't have to be able to check to make sure a university has a non-discrimination policy whenever they're choosing an institution they want to be able go to," he said. "That's certainly not something I thought should happen, because I'm a human being. I shouldn't have things like this happen to me."

Need For New Laws Or For Better Enforcement?

Creeley says Sharp's story is an indication of lax enforcement on the university's part, not toothless laws. He says Sharp would have been protected if school officials had correctly followed the law.

But Murray's bill, Creeley says, introduces a standard for determining what constitutes bullying that leaves little room for free speech.

Creeley says the U.S. Supreme Court has attempted to strike a balance between prohibiting "objectively offensive" speech and protecting First Amendment rights. If an act of speech must be "objectively" offensive, he says, that means most reasonable people would see that act as bullying. He says Murray's bill throws out that standard, leaving open to interpretation what is offensive and what isn't.

"You've effectively delegated the right to determine what speech is and isn't acceptable on campus to the most unreasonably sensitive or easily-offended student on campus," he said.

But Creeley says his organization would be much more likely to support Murray's bill if she used the court's standing definition of harassment.

Murray says she's willing to work with anyone willing to suggest a change in wording. She says the bill specifically targets universities that don't already have bullying policies on the books.

"Universities that have a policy in place are supporting this. I would ask any university who opposes putting this in place why they don't want to protect their students," Murray said.

A hearing for the bill has not yet been scheduled.

Kyle Stokes covers the issues facing kids and the policies impacting Washington's schools for KPLU.