Skip to main content
Part of complete coverage from

What's wrong with outlawing bullying?

By Danny Cevallos
June 18, 2014 -- Updated 1143 GMT (1943 HKT)
Danny Cevallos says anti-bullying legislation encroaches upon freedom of speech
Danny Cevallos says anti-bullying legislation encroaches upon freedom of speech
STORY HIGHLIGHTS
  • Danny Cevallos: I respectfully dissent with Mark O'Mara on issue of bullying laws
  • Cevallos: Anti-bullying legislation encroaches upon freedom of speech
  • He says such laws invite costly litigation and give kids blemished juvenile records
  • Cevallos: Laws are not the cure for every social ill, no matter how good they seem

Editor's note: Danny Cevallos is a CNN legal analyst, criminal defense attorney and partner at Cevallos & Wong, practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are solely those of the author.

(CNN) -- Recently, the venerable Mark O'Mara wrote an op-ed on CNN.com calling for a law against bullying. I find myself in an unenviable position, that of respectfully dissenting with a leading legal mind whom I greatly admire. O'Mara writes compellingly in support of anti-bullying legislation.

I am anti-anti-bullying legislation.

Let me explain. While legislation designed to stamp out bullying may make us feel better inside, such laws by definition encroach upon fundamental freedoms of speech and constitutional requirements that laws not be vague or overly broad. What's more, they may seek to outlaw that which may be beyond the purview of the crimes code: It may be the case that human law is simply no match for the law of nature.

Danny Cevallos
Danny Cevallos

Don't get me wrong, O'Mara is right in calling attention to the scourge of bullying. Bullying was bad enough in 1985 when a juvenile delinquent named Duffy was administering atomic noogies from the back of my school bus. Now, with advent of the Internet, bullies can do things that go viral, greatly magnifying the impact of their damage.

Dr. Dan Olweus, a leading researcher of bullying, defines bullying as:

1. Aggressive behavior that involves unwanted, negative actions

2. A pattern of behavior repeated over time

3. An imbalance of power or strength

That definition casts a wide net. Similarly, the strictest state anti-bullying statutes incorporate broad definitions of bullying. They also dragoon school personnel into anti-bullying policing and training roles, on top of their regular duties. It's inevitable that heightened "awareness" of bullying will result in more incidents being classified as "bullying."

And when teachers are encouraged to err on the side of safety and report a borderline case of bullying, while facing discipline for failing to report, the effect of the incentive is clear. Overall, we're going to see a broad new swath of behavior falling within the definition of bullying. Simply put: We create more bullies by broadening the definition of bullying.

As schools and legislators continue to target bullying by increasingly including speech within the definition, the forces of anti-bullying legislation collide with the legal equivalent of the immovable object: the Constitution -- specifically, the First Amendment.

Freedom of speech protects the public expression of ideas, free from governmental interference. A statute is unconstitutionally broad if it chills a substantial amount of protected speech, even pursuant to a law with a legitimate purpose. Vagueness will also invalidate a law. A law is impermissibly vague if the rest of us cannot understand, from the language of the law, what exactly is prohibited speech or behavior.

A law is vague if it doesn't lay out specific standards so that administrators who enforce the laws against the rest of us are prevented from doing so in an arbitrary or discriminatory way. Anti-bullying legislation seeks to outlaw people from saying mean things. Meanwhile, a law that criminalized saying "mean things" would almost certainly be unconstitutionally vague.

Most—but not all—bullying cases typically involve children and some school nexus. It is true that the Supreme Court has warned that the constitutional rights of students are not automatically coextensive with the rights of adults. So schools probably have more authority to regulate student speech than the government would have to regulate adult speech.

At the same time, the Supreme Court has also made clear that students do not shed their constitutional freedoms of speech or expression when they set foot on campus.

Public schools may regulate student speech that threatens a concrete and "substantial disruption," but even the Supreme Court cases on the subject do not provide much guidance on what exactly constitutes a substantial disruption.

The bottom line is that as anti-bullying statutes continue to evolve and attempt to broaden their reach, there is a greater likelihood that they will suppress constitutional though likely cruel student speech. These laws will likely invite costly litigation and give undeserving children the blemish of a juvenile record, only to ultimately be struck down.

Anti-bullying legislation certainly has its heart in the right place. However, so, too, would an attempt to outlaw anxiety or meanness. It may be the case that some things are outside the jurisdiction and purview of mankind's puny laws.

After all, the very definition of bullying offered by the experts incorporates the concept of an imbalance of power. Yet, imbalance of power is at the core of almost every natural relationship. It's why we eat lobsters and they don't eat us. It's why we have bosses and employees. Power difference fuels capitalism, life ambition and survival itself.

That's not to say bullying should be tolerated. It shouldn't. But outlawing bullying is not the answer. It stretches already thinly stretched school resources, and imposes unreasonable duties on school administrators. More importantly, it is constitutionally suspect and victim oriented. Subjective approaches to outlawing speech are likely vague and overly broad.

Bullying in some form has been a part of the human experience since time immemorial. That doesn't mean it is socially acceptable—on the contrary, bullies should be shunned. But laws are not always the cure for our every social ill, no matter how good they make us feel inside.

Follow us on Twitter @CNNOpinion.

Join us on Facebook.com/CNNOpinion.

ADVERTISEMENT
Part of complete coverage on
December 27, 2014 -- Updated 0127 GMT (0927 HKT)
The ability to manipulate media and technology has increasingly become a critical strategic resource, says Jeff Yang.
December 26, 2014 -- Updated 1617 GMT (0017 HKT)
Today's politicians should follow Ronald Reagan's advice and invest in science, research and development, Fareed Zakaria says.
December 26, 2014 -- Updated 1319 GMT (2119 HKT)
Artificial intelligence does not need to be malevolent to be catastrophically dangerous to humanity, writes Greg Scoblete.
December 26, 2014 -- Updated 1505 GMT (2305 HKT)
Historian Douglas Brinkley says a showing of Sony's film in Austin helped keep the city weird -- and spotlighted the heroes who stood up for free expression
December 26, 2014 -- Updated 1303 GMT (2103 HKT)
Tanya Odom that by calling only on women at his press conference, the President made clear why women and people of color should be more visible in boardrooms and conferences
December 26, 2014 -- Updated 1312 GMT (2112 HKT)
When oil spills happen, researchers are faced with the difficult choice of whether to use chemical dispersants, authors say
December 25, 2014 -- Updated 0633 GMT (1433 HKT)
Danny Cevallos says the legislature didn't have to get involved in regulating how people greet each other
December 23, 2014 -- Updated 2312 GMT (0712 HKT)
Marc Harrold suggests a way to move forward after the deaths of NYPD officers Wenjian Liu and Rafael Ramos.
December 24, 2014 -- Updated 1336 GMT (2136 HKT)
Simon Moya-Smith says Mah-hi-vist Goodblanket, who was killed by law enforcement officers, deserves justice.
December 24, 2014 -- Updated 1914 GMT (0314 HKT)
Val Lauder says that for 1,700 years, people have been debating when, and how, to celebrate Christmas
December 23, 2014 -- Updated 2027 GMT (0427 HKT)
Raphael Sperry says architects should change their ethics code to ban involvement in designing torture chambers
December 24, 2014 -- Updated 0335 GMT (1135 HKT)
Paul Callan says Sony is right to call for blocking the tweeting of private emails stolen by hackers
December 23, 2014 -- Updated 1257 GMT (2057 HKT)
As Christmas arrives, eyes turn naturally toward Bethlehem. But have we got our history of Christmas right? Jay Parini explores.
December 23, 2014 -- Updated 0429 GMT (1229 HKT)
The late Joe Cocker somehow found himself among the rock 'n' roll aristocracy who showed up in Woodstock to help administer a collective blessing upon a generation.
December 23, 2014 -- Updated 2115 GMT (0515 HKT)
History may not judge Obama kindly on Syria or even Iraq. But for a lame duck president, he seems to have quacking left to do, says Aaron Miller.
December 23, 2014 -- Updated 1811 GMT (0211 HKT)
Terrorism and WMD -- it's easy to understand why these consistently make the headlines. But small arms can be devastating too, says Rachel Stohl.
December 22, 2014 -- Updated 1808 GMT (0208 HKT)
Ever since "Bridge-gate" threatened to derail Chris Christie's chances for 2016, Jeb Bush has been hinting he might run. Julian Zelizer looks at why he could win.
December 20, 2014 -- Updated 1853 GMT (0253 HKT)
New York's decision to ban hydraulic fracturing was more about politics than good environmental policy, argues Jeremy Carl.
December 20, 2014 -- Updated 2019 GMT (0419 HKT)
On perhaps this year's most compelling drama, the credits have yet to roll. But we still need to learn some cyber lessons to protect America, suggest John McCain.
December 22, 2014 -- Updated 2239 GMT (0639 HKT)
Conservatives know easing the trade embargo with Cuba is good for America. They should just admit it, says Fareed Zakaria.
December 20, 2014 -- Updated 0112 GMT (0912 HKT)
We're a world away from Pakistan in geography, but not in sentiment, writes Donna Brazile.
December 19, 2014 -- Updated 1709 GMT (0109 HKT)
How about a world where we have murderers but no murders? The police still chase down criminals who commit murder, we have trials and justice is handed out...but no one dies.
December 18, 2014 -- Updated 2345 GMT (0745 HKT)
The U.S. must respond to North Korea's alleged hacking of Sony, says Christian Whiton. Failing to do so will only embolden it.
December 19, 2014 -- Updated 2134 GMT (0534 HKT)
President Obama has been flexing his executive muscles lately despite Democrat's losses, writes Gloria Borger
ADVERTISEMENT