������ýapp�ٷ�

On Tuesday, the Supreme Court of New Jersey held that a section of the state’s was because it allowed for a defendant to be convicted if his or her victim was intimidated and “reasonably believed” that he or she was targeted on the basis of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity. The law did not require that the defendant actually be motivated by the target’s membership in a protected class. The court’s decision that the state cannot punish conduct based solely on another person’s subjective response to that conduct may be a useful tool in the fight for free expression and due process on campus.

The unconstitutional provision was struck down in the context of a case involving a white public works department employee who for three to five minutes and made a remark . The jury found that the victim reasonably believed that the defendant aimed to intimidate him because of his race. According to :

Lawrence S. Lustberg, who argued the case for the state’s Association of Criminal Defense Lawyers, said the statute was arbitrary because it could mean that even if two defendants committed the same crime, one could be found guilty and the other not depending on what the victim thought.

“The whole idea is that when you commit an act, you’re supposed to know, ‘Am I committing a crime or not?’” he said on Tuesday. “If criminal liability depends on another person’s idiosyncratic point of view, the defendant can’t possibly be on notice.”

This same principle is at the heart of Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972), in which the Supreme Court of the United States held that a policy or regulation is said to be unconstitutionally vague when it does not “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.”

New Jersey Supreme Court Justice Barry Albin explained in the the disconnect between what a defendant might know and what a victim might feel:

Whether a victim reasonably believes he was targeted for a bias crime will necessarily be informed by the victim’s individual experiences and distinctive cultural, historical and familial heritage — all of which may be unknown or unknowable to the defendant.

Because the section failed on due process grounds, the court did not make a definitive ruling on the defendant’s claim that the statute also violated the First Amendment.

New Jersey’s bias intimidation statute served as the basis for Rutgers University student Dharun Ravi’s 2012 conviction for capturing on webcam his roommate, Tyler Clementi, having sex with another man. Clementi subsequently committed suicide. In finding Ravi guilty, the jury cited both Ravi’s state of mind and Clementi’s reasonable beliefs about Ravi’s motivation. Now Ravi’s lawyer argues that the discussion of both issues together “taint[ed]” the case and that Tuesday’s ruling could affect the outcome of an appeal.

The Clementi case, in turn, inspired the introduction of additional legislation meant to curb bullying between students: the Tyler Clementi Higher Education Anti-Harassment Act. As my colleague Will Creeley wrote last year upon its reintroduction in the Senate (it was originally introduced in 2010), the bill endangers constitutionally protected expression because of its requirement that colleges maintain overly broad harassment policies. The legislation’s definition of punishable harassment, for example, departs from the Supreme Court’s standard set forth in Davis v. Monroe County Board of Education (1999), in part because it lacks a requirement that the alleged harasser’s conduct be objectively offensive. This allows students to be punished merely for saying something to which an unusually and unreasonably sensitive person responds negatively. As with the New Jersey provision struck down Tuesday, no student has meaningful notice of what he may or may not say under such a rule.

Yesterday, the Clementi Act was once again , with its .

The New Jersey Supreme Court’s ruling has implications for other speech-restrictive policies, too. In May 2013, the Department of Education’s Office for Civil Rights (OCR) and the Department of Justice (DOJ) entered into an agreement with the University of Montana (UM) to resolve their investigation of the school for alleged mishandling of sexual misconduct cases. The Departments’ letter of findings instructed UM to prohibit sexual harassment, defined as “any unwelcome conduct of a sexual nature”—including speech. As FIREhas argued before, this definition authorizes punishment based solely on a person’s subjective response to expression, limiting free expression and failing to give students adequate notice of what they may say. In other words, it fails in the same way that the Clementi Act and New Jersey’s bias intimidation statute do.

Yet colleges and universities, inspired by OCR’s and DOJ’s assertion that the UM agreement was a “blueprint” for institutions of higher education across the country, have rapidly adopted similar, overly broad sexual harassment policies. OCR and DOJ have yet to clarify to colleges and universities that they are not required to adopt the definition of harassment set forth in UM’s agreement—although OCR head Catherine Lhamon did acknowledge this in a letter sent only to ������ýapp�ٷ�.

In short, the section of New Jersey’s bias intimidation statute that the state’s Supreme Court rejected has parallels in both federal legislation and college policies across the country. Lawmakers and college administrators should take careful note of this ruling and take steps to ensure that harassment policies give people adequate notice of what is prohibited and do not unlawfully prohibit, punish, or chill expression that is protected under the First Amendment.