In 2009, the General Assembly passed a law prohibiting online bullying of juveniles. The rarely-used law recently was struck down as unconstitutional, with the N.C. Supreme Court holding that the poorly worded law violates First Amendment free-speech rights.
During the 2011-12 school year, Dillion Price was a sophomore at Southern Alamance High School. Soon after the term began, several of Price’s classmates began posting derogatory pictures and comments on his Facebook page. Price’s mother eventually discovered the posts and contacted local law enforcement.
Robert Bishop was arrested in February 2012 and charged with one count of cyberbullying for comments he made online toward Price, including, “Anyone who would be so defensive over Dillion can’t be too intelligent;” “I never got to slap him down before Christmas Break,” followed by a “sad face” emoticon; and “I heard that his anus was permanently stressed from having awkwardly shaped penises in it.”
A jury convicted Bishop, who received a sentence of 30 days in jail, which was suspended, and four years of supervised probation.
The N.C. Court of Appeals upheld the conviction, concluding that the statute at its core “prohibits conduct, not speech,” specifically “the act of posting or encouraging another to post on the Internet with the intent to intimidate or torment” a minor. It also held that any burden on free speech was merely incidental and no greater than necessary to further the state’s interest in protecting children from the harmful effects of harassment.
Speech or conduct?
Bishop requested that the N.C. Supreme Court take the case. Before the justices, Bishop again argued that the cyberbullying statue violated his First Amendment rights. Unlike at the Court of Appeals, the high court agreed with him.
“We hold that [the cyberbullying provision] restricts speech, and not just nonexpressive conduct; that the restriction created is content-based, not content-neutral; and that the statute’s scope is not sufficiently narrowly tailored to serve the state’s asserted interest in protecting children from the harms resulting from online bullying,” wrote Justice Robin Hudson for unanimous N.C. Supreme Court.
“Accordingly, we conclude that [the law] violates the First Amendment.”
The court first held that Bishop’s online comments were speech protected by the Constitution.
“Posting information on the Internet — whatever the subject matter — can constitute speech as surely as stapling flyers to bulletin boards or distributing pamphlets to passersby — activities long protected by the First Amendment,” wrote Hudson.
“Such communication does not lose protection merely because it involves the ‘act’ of posting information online, for much speech requires an ‘act’ of some variety — whether putting ink to paper or paint to canvas, or hoisting a picket sign, or donning a message-bearing jacket. Nor is such communication subject to any lesser protection simply because it occurs online.”
This did not end the matter, however, as the right to free speech is not absolute; in certain circumstances the government may place limits on how freedom of speech is exercised. The high court also had to consider what standard to use to assess the speech restrictions imposed by the cyberbullying law. The Supreme Court found that the law created a content-based restriction — that it criminalized certain messages but not others — and was subject to “strict scrutiny.”
Strict scrutiny requires the state to show both “that the statute serves a compelling governmental interest, and that the law is narrowly tailored to effectuate that interest.”
The state’s compelling interest in protecting children from physical and psychological harm was not contested. Instead, the court had to decide whether the cyberbullying law as worded represented the least restrictive means of doing so.
“We hold that it does not,” wrote Hudson.
“At the outset, it is apparent that the statute contains no requirement that the subject of an online posting suffer injury as a result, or even that he or she become aware of such a posting. In addition, as to both the motive of the poster and the content of the posting, the statute sweeps far beyond the state’s legitimate interest in protecting the psychological health of minors. Regarding motive, the statute prohibits anyone from posting forbidden content with the intent to ‘intimidate or torment’ a minor. However, neither ‘intimidate’ nor ‘torment’ is defined in the statute, and the state itself contends that we should define ‘torment’ broadly to reference conduct intended ‘to annoy, pester, or harass.’ The protection of minors’ mental well-being may be a compelling governmental interest, but it is hardly clear that teenagers require protection via the criminal law from online annoyance.”
The justices also found that the list of subject matter covered by the law — “private, personal, or sexual information pertaining to a minor” — was too broad.
The case is State v. Bishop, (223PA15).