The Unconstitutionality of Antibullying Legislation

ETA: Please see this comment thread for an analysis that, to me, makes some sense of why an exemption (though not necessarily one which was as all-encompassing as the one we got) might be required under the Michigan constitution.


After my Friday post on Michigan’s antibullying bill in the senate and the built-in exemption for religious/moral speech, a number of folks informed me that an antibullying law without such an exception would be unconstitutional, and any such law would be quickly overturned.

I’m trying to understand this. Looking at the decade-long debate over Michigan antibullying legislation, it doesn’t appear to have been constitutional concerns holding this up. The biggest problem was a “difference in opinion by advocates on both sides on whether or not to enumerate — meaning whether to create a list of the groups or traits most likely to be the victims of bullying.” Enumeration was seen by some groups, such as the American Family Association of Michigan, as a “Trojan Horse” for the homosexual agenda.

Most of the articles I’ve seen stress that this was the sticking point, which to me suggests that inserting the “religious and moral” exemption was a compromise to satisfy the opposition groups.

As always, I could be wrong. Maybe there’s also a valid constitutional requirement for such exemptions. Enough people were claiming so to make me want to examine the possibility.

The First Amendment says Congress shall make no law … prohibiting the free exercise of religion or abridging the freedom of speech. The thing is, there are in fact limits to both the free exercise of religion and freedom of speech. Any antibullying legislation will restrict speech by stating that certain types of speech (bullying) are unacceptable in the public school system. Likewise, for example, if my religious beliefs involve human sacrifice, the government will act to stop me from practicing that aspect of my religion.

So we obviously can pass laws that restrict both speech and religion. I think we should be very cautious about doing so, and in general I’m a strong supporter of such freedoms … but they’re not limitless.

So I started researching antibullying laws in other states. To the best of my knowledge, each of the following laws is currently on the books.

I don’t have time to track down the laws of all 50 states, but I figure the first 12 provided a reasonable sample size. Of those 12 laws, I found no religious exceptions whatsoever in 8 of them (67%). Another simply excludes private schools, but has no religious exception for the public school setting.

In addition, the disclaimers in those minority of laws that include them don’t feel strike me as giving the same kind of sweeping exemption to “religious/moral” speech as the Michigan law, but that might be a matter of interpretation.

I’m not a lawyer, and legal research isn’t my area of expertise. Maybe these laws have been amended or struck down and I just couldn’t find that information. But based on the evidence I’m seeing, the argument that antibullying legislation without an exemption for religious speech would be unconstitutional and thrown out just doesn’t appear to hold water.