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A case of high-school bullying in South Hadley ended in tragedy this past January when the alleged victim, a freshman girl, committed suicide. Now, ramped up by the outrage over the case, Massachusetts legislators are in danger of enacting a politically correct law that could have devastating effects on our free speech.

Indictments handed down last week to nine South Hadley High School students sent a message to bullies: tormenting peers will not be tolerated. Six teens and three juveniles were charged with serious crimes — including criminal harassment and violation of civil rights — in connection with an allegedly unrelenting campaign that culminated in the January 14 suicide of 15-year-old Phoebe Prince. Yet even as Prince’s tormenters face potential prison time under long-existing statutes, calls for crime du jour legislation to make “bullying” a separate offense are on the rise.

Newspaper columns and editorials praised Northwestern District Attorney Elizabeth Scheibel’s forceful response to the Prince incident, while not-so-subtly hinting that the prosecution would be somehow more effective if a statute specifically criminalizing bullying were available.

These knee-jerk reactions fail to consider legal realities: if the facts are as alleged and as elaborated in media reports — that the bullies orchestrated a campaign of humiliation, intimidation, intense harassment, and assault both inside school and in non-school venues such as Facebook — the South Hadley cases could easily end in convictions based on existing laws.

Additional legislation, however, would likely suffer from the law of unintended consequences: in trying to curb schoolyard and online bullying, legislators would run afoul of constitutional principles — including free-speech protections — by over-criminalizing the sometimes-messy exchanges that mark free society.

For centuries, Massachusetts law has contained harassment provisions that ban conduct that exceeds the normal meanness of daily life. Insulting a student once is protected speech; repeating it several times in inappropriate contexts might rise to the level of civil harassment; invasively piling on in multiple ways with frequency and intensity could be criminal. While it is difficult to draw precise lines, civilized people — even teenagers — can intuit the difference between protected speech and criminal harassment. All that criminal bullying legislation would accomplish would be to overlay reasonably clear and familiar existing laws with a new and untested species of “hate speech” statute.

State lawmakers, not wanting to seem indifferent to a high-profile tragedy, have enacted civil — but not yet criminal — anti-bullying legislation in the wake of Prince’s death and other instances of bullying-turned-tragedy. On March 11, the State Senate approved its version; the House, 148-0, passed its bill a week later. Slight differences between the two went to a conference committee to produce an agreed version, which Governor Deval Patrick, jumping on the bandwagon, has indicated he would sign into law.

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ARTICLES BY HARVEY SILVERGLATE
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