New Jersey's Anti-Bullying Fix: A Solution or the Creation of an Even Greater First Amendment Problem?

I. INTRODUCTION Tyler Clementi is a name that rings familiar in the ears of New Jersey citizens.1 His was a tragic story of the results of bullying, and legislators throughout the country have considered the events, which were followed by public outcry, and have sought to solve the bullying problem once and for all. Clementi was a freshman student and an accomplished violinist at Rutgers University who was reported to have jumped off the George Washington Bridge following a cyberattack by his roommate.2 A few nights before the suicide, his roommate had posted on Twitter: "Roommate asked for the room till midnight. I went into molly's room and turned on my webcam. I saw him making out with a dude. Yay."3 Similar stories of victimization and bullying scatter the media,4 and states are quickly amending current statutes and enacting new statutes to make antibullying laws in their education systems more severe.5 Following suit, the state of New Jersey enacted what commentators have called the "toughest legislation against bullying in the nation."6 Enacted September 1, 2011, New Jersey legislators have titled the legislation the Anti-Bullying Bill of Rights.7 Included in this legislation is the requirement that schools adopt "comprehensive anti-bullying policies," which include significantly increased staff training on how to deal with and educate against suicide and bullying, heightened deadlines for when and how to report bullying incidents to appointed school- and district-wide anti-bullying specialists, and even mandatory grade postings on every school and district website that gives the bully-ranking ofthat school or district.8 According to the statute, New Jersey legislators wished to "strengthen the standards and procedures for preventing, reporting, investigating, and responding to incidents of harassment, intimidation, and bullying of students that occur in school and off school premises."9 Ergo, this legislation not only allows, but also encourages students, staff, and teachers to monitor and report incidents of all bullying or victimization - even incidents that occur off campus. Accordingly, the statute's definition of "harassment, intimidation or bullying," includes behavior that takes place "on school property, at any school-sponsored function, on a school bus, or off school grounds."10 While many have applauded the law's strict requirements as a model for all other states to follow in cracking down on bullies,11 not everyone believes that it is a change for the better, and some critics consider the statute to be too sweeping and broad.12 For example, Richard G. Bozza, the executive director of the New Jersey Association of School Administrators, expressed concern with the statute, stating, "I think this has gone well overboard. . . . Now we have to police the community 24 hours a day. Where are the people and the resources to do this?"13 Is New Jersey's law the future of our country's anti-bully reform? Is this truly a model statute for all states to follow, as critics have suggested, or would it be better to invalidate this law while it is still new? This Comment analyzes New Jersey's Anti-Bullying Bill of Rights under the First Amendment and argues that the biggest problem with the new law is not just its costs or heightened liability for New Jersey schools, but rather the statute's increased regulation of off-campus speech. Although many states have made a push to extend anti-bullying legislation into the realm of cyber-space,14 New Jersey should not have joined the bandwagon so heartily and enacted legislation that has gone so far in chilling significant amounts of student speech on and off campus. Part II of this Comment will address the problem and the effects of bullying and suggest why the media's reports on bullying may have a greater role than we realize in the bullying problem. Part III will give an overview of the relevant case law that governs student speech today and explain why lower courts across the country have been unable to find a clear standard to follow in this area. …