When The Bully Tells The Truth (Update)

Following the tragic suicide of Rutgers student Tyler Clementi, the State of New Jersey did what so many advocates demand: pass a law. Deemed the “toughest” anti-bullying law in the nation, the applause could be heard loud and clear.  And as too often occurs, the zealous “do it for the children” folks knew that it would bring about a perfect world where no child’s feelings would ever be hurt again.

Lice.  Head lice, to be precise.

The Rutherford Institute is challenging New Jersey’s law because lice.  No child wants to be called a carrier of lice.  Except, maybe they are the carrier of lice.  From NJ.com:

John Whitehead, president of the Rutherford Institute, said the enforcement of the law is problematic. Schools should be safe, he said, but well-meaning statues “are Orwellian in nature and inevitably run afoul of the Constitution.”

“How far do you take this, especially with children,” he asked. “Free speech in some instances is hurtful.”

At the time new laws are enacted, coming on the heels of tragedy or to end a horrible epidemic of hate that most will agree should end, there is something of a willful blindness toward how such laws are used on the street.  Advocates of such laws tell stories of how such laws will end those tragedies, stem the horrible epidemic, and appeal to the emotions of others who share their sadness and anger toward outcomes.  They tend not to talk much about the unintended victims of the laws, as that does little to further their cause.

The Rutherford Institute’s lawsuit contends its client, identified as L.L. was required to perform a sensitivity assignment and apologize to a fellow student for stating that she had lice, according to the institute’s suit.

The incident happened in September of 2011, after parents in a 4th grade class were informed that a student in the class had head lice. A few days later, one student asked another why she had dyed her hair. When she didn’t response, L.L. stated correctly that she was the student with the head lice.

To say that L.L. wasn’t the intended target of the nation’s toughest anti-bullying law now may well be true, but does little to help. You see, it met all the elements.  All the hearts and flowers of advocates designed to appeal to people’s sensitivities do little to change that laws are comprised of elements, definitions, and punishments.  There is no defense that “this isn’t what they meant,” as laws mean what they say, no matter what heart-rending stories are used to sell them.

The problem with anti-bullying legislation has been unfortunately clear from the outset.  It is not that non-physical bullying (because physical attacks are an entirely different animal, and are subject to sanction without resort to the characterization “bullying”) isn’t real and painful.

The problem is that no one has ever come up with a viable definition of bullying that limits a law’s application to those who are intended to be its targets, and provides adequate notice to children and their parents of where the line is drawn.  The reality is that every child, every person, is a bully, when the wrongfulness is determined based on the feelings of the person who believes himself or herself being bullied.

Words like “annoy” are used, which means that it “irritates” someone. Heck, I’m irritated all the time by people who are too lazy to do the work necessary to have an opinion, yet feel entitled to express whatever is floating through the dark matter in their heads. Am I being bullied?  Or, because I called them “too lazy,” am I the bully? Don’t answer that.

Too often, the reaction is that if these laws, these definitions, are so grossly inadequate, then what definition would I, the critic of the law, use instead.  This is a false, illogical demand, that one can’t criticize the inadequacy of an overbroad, ill-defined law that will harm unintended people, because there is no ready better answer.  It assumes there must be a law, because there is a harm.  It is axiomatic that the law cannot cure all wrongs that people can come up with.

As the ACLU’s Lee Rowland said, “Criminal law is a blunt instrument for regulating human dysfunction.”

Sometimes, the answer is that we may all agree that a particular course of conduct is wrong, is harmful, and we want it to stop.  That does not mean that a law can be crafted that stops the harm without also doing harm to others.  Sometimes, the answer is it can’t be done. Sometimes, the answer is that we have yet to figure out a way to accomplish the desired goal without causing the undesired harm.

And even though it may hurt a child’s feelings to be told that they have lice, the fact is that they have lice.  It is not in society’s interest to turn the truth into a crime because it hurts someone’s feelings, or to make a child who tells the truth into a criminal.

Update: Via Eugene Volokh at WaPo Conspiracy, the disorderly conduct conviction will be withdrawn and dropped:

No one in our office who was authorized to give advice on wiretap issues or school conduct issues was ever contacted in this matter. We have made multiple attempts to contact the officer who wrote the citation. Those attempts have been unsuccessful. It is our intention to withdraw the citation on April 29 because we do not believe his conduct rises to the level of a citation.

As I noted in the comment below, there was nothing in the story to suggest that this had been run through the district attorney’s office, as some jurisdictions allow the police to bring juvenile matters directly to the court.  Without this, blame can’t be leveled at the prosecutors, who apparently had nothing at all to do with this fiasco. The same can’t be said for the judge.

H/T Hans Bader, and his follow-up.

8 thoughts on “When The Bully Tells The Truth (Update)

  1. Lurker

    What are the elements, then? The question whether it so allowable to state that a person has lice should be dependent on intent. If you do it to state a fact that has some importance to education, work, public health or some other prudent reason, it should not be wrong. However, otherwise it is a private matter which should not be publicly disclosed or used to spite a fellow person.

    So, saying aloud that a person has lice is wrong, even if factually correct, unless that claim has a useful purpose. For example, saying “She has lice, don’t put her cap on your head” is OK, if this is warranted by circumstances but just claiming the fact aloud is not.

    1. spencer neal

      Do you seriously think that a fourth grader would be able to understand that she may only make a statement if her intent were pure?

    2. Brett Middleton

      But where is the justification in this for equating “wrong” or “impure motive” with “criminal”? Basically the child made a rude statement, and rudeness can be handled by ordinary social mechanisms such as “Johnny, that’s not a nice thing to say! Apologize this instant!” That’s how children learn to be polite.

      Throwing a kid into the maw of the justice system can only magnify the offense out of proportion and confuse the kid. This is the equivalent of trying to housebreak a puppy by cutting off its tail the first time it piddles on the floor. The puppy will only remember being arbitrarily subjected to extreme pain and terror, rather than making a mental connection between a particular behavior and a proportional correction to that behavior.

    3. SHG Post author

      The question whether it so allowable to state that a person has lice should be dependent on intent.

      We appear to have a fundamental difference in perspective. You believe hurt feelings matter more than free speech, and are quite happy to criminalize speech, provided you don’t think the punishment is too harsh. I disagree with you completely about everything and think your normative views are a danger. You can feel whatever way you like. I think you are absolutely, totally, unequivocally wrong. So, there you go.

  2. Brett Middleton

    ” It is not in society’s interest to turn the truth into a crime because it hurts someone’s feelings”

    Careful, there! We have to remember that there is truth and then there is Truth, and anything that contradicts Truth must be a Lie that deserves to be criminalized. E.g., anything that comes out of the mouths of those hateful Global Warming Deniers. Can Wrong Thinking, such as an impulse to make hurtful statements about lice, really produce Truth? Those who support Truth must have recourse to the courts to support it!

    “Too often, the reaction is that if these laws, these definitions, are so grossly inadequate, then what definition would I, the critic of the law, use instead. This is a false, illogical demand, that one can’t criticize the inadequacy of an overbroad, ill-defined law that will harm unintended people, because there is no ready better answer.”

    Oh, my, you ARE on a dangerous roll today. Don’t you realize that logic like this could be applied in so many areas that it would destroy society? We absolutely must be able to ignore questions about magic bullets or collapsing buildings from anyone who does not offer an alternative answer. (Preferably an answer that is even more flawed than the original, so we can dismiss it along with the questions.) No scientist must be allowed to question a theory without having proof in hand of an alternative theory.

    One must be a chicken, able to make a fresh egg, before one can claim that an egg is rotten. Otherwise we might have to think about whether it is better to eat the egg we have or go hungry for a while.

  3. Charlesmorrison

    The fact that this child has been subjected to anything remotely resembling punishment is beyond ridiculous. Although free speech of students may be curtailed to an extent in order to further pedagogical ends, it is alive and well in schools nonetheless. And this case seems far from the line in which speech may be curtailed. Just my two cents on that issue.

    Another issue, and one this blog has continued to rightfully hammer on, is the (quite frankly weird) desire to protect every child from every verbal transgression or any amount of teasing that may cause embarrassment or a lack of confidence. A “bully” when I went to grade school was someone that beat people up, stole their lunch money, etc. it wasn’t applied to assholes. They were assholes. And I’m not that old. When did being the dick or jerk transform into being a bully?

    The proponents if these laws co-opted a tried a true word, in normal vernacular, to get people on board with these stupid, unconstitutional agendas. The bully was the guy that physically intimidated people, the assholes were assholes. Kids will figure it out if they were only given the chance. It’s called growing up.

    Btw, I thought kids called these mean people “haters” these days.

    1. SHG Post author

      First, I note that you would clearly not make it as a Frenchman due to your lack of sensitivity. That doesn’t mean you can’t visit Paris, like poor Bob Dylan.

      Second, your point about the co-optation of the word “bully” is an excellent one. Historically, “bully” wasn’t a crime, but a description of a bad kid who used his superior strength to terrorize other kids. But the wrongfulness of his conduct was in the force, the physical harm, the extortion of money, etc. Not because someone’s feelings were hurt. But you are exactly right, the word has been co-opted because its connotation is so awful, and applied to any conduct that produces a hurt feeling without regard to physical threat or harm.

  4. Dot

    “Heck, I’m irritated all the time by people who are too lazy to do the work necessary to have an opinion, yet feel entitled to express whatever is floating through the dark matter in their heads”

    My favorite quote since a NJ sixth grade teacher assigned “Cooties vs. Compassion” to castigate us all for our roles in typical 1970’s bullying. Daggers of disdain were pointed in equal measure to the teacher, bully and victim. The animosity only increased with the inclusion of a cover page for grading purposes which would be removed before random assignment to peers for reading aloud.

    As a rebel I changed my paper to “Talk vs Tolerance” in large part because I felt no compassion for the unbathed kid being taunted and several siblings proved the wisdom of tolerance over compassion or acceptance.

    Too often the flotsam behind “there ought to be a law” remains beyond comprehension, in fact it’s so distracting from my normal duties I felt compelled to write this. Is this “anti-bullying” law going to make those bullied just below the threshold any more able to cope or will the threshold of blame keep getting lowered?

    Why do we wonder about entitlement attitudes or kids and college students going along to get along in events they would never dream of initiating? Kids grow up “in the care and control” of educational institutions telling them everyday that they must go along even when it opposes everything they stand for or in some cases need to survive….that is the principle of “zero tolerance” to “war” against the issue du jour.

    Dress codes whose purpose is modesty are used to limit free speech. The American Flag shirt that must be changed or hidden because it “might” disrupt a Cinco de Mayo celebration tells kids it’s not only not okay to abstain but that abstention is tantamount to dissent and will cause disruption. Hence acceptance is reliant on participation regardless of objections.

    War on drugs; Kids with asthma & diabetes often get segregated to district “sick schools” because the liquid/inhalant medication enabling full life participation requires ‘authorized personnel for administration’ while pills are routinely doled out by anyone who attended a ‘medication log’ inservice.

    Mrs. Mannheimer’s term paper solution to the bully who emphatically said ‘nothin you can do, you can’t touch me’ is sadly a bygone era with the reality of teaching to test. Billy was right, she didn’t touch him nor did his ongoing childhood development teach him self-control but she did touch 22 other students.

    Social media may have expanded the playing field for bullies but this law won’t prevent or protect society from the need to persevere through life’s isolating humiliating events.

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