Those who know me well know how strongly I feel about freedom of speech—so strongly, in fact, that I take it as an ethical axiom. In light of this, it is not surprising that one of my friends should ask me whether my support for the freedom of speech should cause me to oppose anti-bullying legislation.
I have to admit, it’s a tricky question, and one that I have occasionally thought about in the past. If I hadn’t, then I would probably have been quite unable to come up with an answer on the spot. Or I would have had to say, “it’s complicated”—something I hate saying in response to ethical questions. Here’s what I have so far.
Freedom of speech is not the principle that accomplishing something through speech is less wrong than accomplishing it by other means. If I ordered a dog to attack another human and the dog obeyed, it would be morally equivalent to picking up a knife and inflicting the injuries myself, because the dog, like the knife, has no mind with which to resist; the fact that speech is the only thing I actually “did” does not excuse me. But what happens if I give the order to a mentally competent adult human? Then, in order for the injury to occur, something additional has to happen—that person must make the decision to obey me; they are endowed with free will and the ability to discern right from wrong (in other words, moral agency). In this case, when I give the order, it is not the same as picking up a knife and injuring the victim myself; instead of using a tool to accomplish my task, I have to go through a moral agent, who has the choice not to obey me. This is what allows me to claim that the moral responsibility is that of the person ordered to commit the crime, rather than that of the person giving the order.
I’m sure that most people have heard of Innocence of Muslims by now and how it has provoked riots in various parts of the world, in some cases leading to death. I can’t remember the last time most people’s concept of the freedom of speech has been pushed so far, sometimes past the breaking point— one of my friends has argued that the producer of the video should be punished, and that, indeed, any person who produces offensive media about a major spiritual figure should face imprisonment. You can see my comments on that post (originally from Facebook); they’re labelled with my initials, “BB”. I didn’t argue that causing people’s deaths is okay because it’s done so through speech; rather, I argue (though I usually try to state it more eloquently) that causing death is not actually wrong in and of itself; the causation is not sufficient to establish moral responsibility. The implied message is that I insist that the entirety of moral responsibility for the deaths in this case be placed on those who committed the attacks, rather than on the person who provoked them (i.e., the publisher of the video.) Once I have concluded that, it is clear to me that publishing a video like Innocence of Muslims is no more wrong than anything else that strongly offends a large number of people (such as burning a national flag), and hence I come down, as usual, on the side of freedom of speech.
That being said, the question at hand is not one of whether I consider freedom of speech to be “expansive” enough to make anti-bullying legislation unjust. Instead, the question is whether bullies should be held morally responsible for the causal effects of bullying. This is where the question gets complicated. The key is that we do not normally consider children to be fully moral agents because their ability to discern right from wrong is not fully developed.
If any equivalent to verbal bullying occurred between mentally competent adults, it would not be called “bullying”; it would be harassment. Laws against harassment do not violate freedom of speech because they are content-neutral; they restrict your right to follow around a person and continually insult them, but not your right to post the same insults on your blog. The latter is covered by what I would consider to be freedom of speech. (Although, depending on the jurisdiction, it may be classified as hate speech, and depending on the particulars of the content, it may be an illegal form of defamation; I will not discuss those issues in this post.) I’d be sympathetic if an adult became depressed, possibly committing self-harm, as a result of nasty things posted about them on the Web, maybe even outraged, but I’d reject the argument that their family “deserves justice” because someone else caused those consequences; ultimately the “victim” was, from my point of view, entirely responsible for becoming depressed and so on. (Again, I am still sympathetic.)
What happens now if the bully is an adult and the victim is a 13 year old girl who subsequently hangs herself? In one particularly famous case in which this occurred there was simply no law under which the adult involved could have been reasonably convicted, and it would have been wrong to convict her under some other law. But, actually, I might support an anti-bullying law that would cover cases like this. The logic is that since children are not fully moral agents, they are not fully responsible for the negative consequences associated with being a victim of bullying, and an adult bully could bear whatever part of the moral responsibility remains. It also follows that the older the child is, the less wrong it is to bully that child, and at some point we would consider them a fully mentally competent adult and the bully’s moral responsibility would vanish altogether. One should, however, be careful in applying this doctrine; it should be restricted to cases in which a reasonable (adult) person would certainly realize the likely consequences of their actions. Hence, parents cannot be held responsible for their children becoming serial killers in adulthood unless they actually, e.g., bring them up with the message that killing people is good.
The more complicated case is the one in which children bully other children. Here, I’m not even sure what “anti-bullying legislation” actually means; there are a variety of forms that such legislation might take. Nevertheless, we can conceptually divide this in half. The act of the bullying itself (considered independently from the attributes of the agent that commits it) is just as wrong in this case as it is when the bully is an adult, so it should likewise be stopped; I certainly support legislation that would reduce the incidence of bullying. I especially support it in a school environment, which should be optimal for learning (which certainly requires the absence of bullying). The other half is the question of how the bully should be punished, if at all. Here, I say that just as the victim cannot make fully reasoned decisions regarding how to react to bullying, the bully cannot make the fully reasoned decision that bullying is wrong (in particular because they cannot fully understand the consequences of bullying). If the bully and victim are similar in age, then the older the bully is, the more moral agency they possess, the more the victim is also responsible, and the more the bully should be able to argue their own lack of moral responsibility; so really, it does not make too much sense to me to impose a harsh punishment on the bully at any age (except when the bullying takes place at school; here, punishment may be suitable for conveying the message should be conveyed that bullying is not acceptable behaviour within a school environment because it detracts from that environment.) On the other hand, if the bully is 16 and the victim is 12, legal punishment for the bully may be warranted by the presumably large difference in maturity (and hence moral agency), though I would expect it to be less harsh than what a 25 year old would get for doing the same thing. (The logic here is not too different from how you might think of age of consent laws for sexual activity.)
This probably addresses everything the questioner asked, but one additional concern I have is that I’d have to oppose any kind of anti-bullying legislation that looks entirely too subjective, on the grounds that it would likely be applied unevenly. Indeed, whenever laws are applied unevenly, it tends to be certain minority groups that get the short end of the stick, and arguably they are the ones that are most at risk of being bullied in the first place!