North Carolina Cyber-Bullying Statute Survives First Amendment Challenge
Defendant was accused of cyberbullying over posts he made about (and to) his high school classmate (Dillon) on Facebook. The opinion is unclear on the precise nature of the original post and whether defendant initiated the post, or offered comments, or both. Among other comments, defendant made the following statements:
(1) This is excessively homoerotic in nature. Exquisite specimen. (2) Anyone who would be so defensive over Dillion can’t be too intelligent. (3) And you are equally pathetic for taking the internet so seriously. (4) There isn’t a fight. We’re slamming someone on the open forum that is the internet.
In another example, defendant exchanged Facebook messages with another classmates that included general expressions of antagonism towards the putative victim. Defendant commented:
I never got to slap him down before Christmas break. 🙁
Another student requested someone to tag Dillon on Facebook so he would see the posts, and defendant replied that he would. (It’s unclear whether he ever did this.)
Finally, another set of exchanges included an altered picture of Dillon and his dog. Several students posted derogatory and vulgar comments. Defendant joined in, and added “I heard that his anus was permanently stressed from having awkwardly shaped penises in it . . .
The North Carolina statute prohibits:
[the use of a computer network to] post or encourage others to post on the internet private, personal or sexual information pertaining to a minor [with] the intent to intimidate or torment a minor.
Defendant challenged the statute on First Amendment grounds. The court rejects the challenge.
- The court says, analogizing to a telephone harassment case (rejecting a First Amendment challenge), that the statute regulates conduct and not expression.
- The court says that even if the regulation appears content-based, it will be deemed content-neutral if it has a content-neutral purpose.
- Finally, the court also says that the mental state requirement renders the regulation content neutral:
The Cyber-bullying Statute is not directed at prohibiting the communications of thoughts or ideas via the internet. It prohibits the intentional and specific conduct of intimidating or tormenting a minor. This conduct falls outside the purview of the First Amendment.
Yikes, it’s hard to know where to begin with this one.
The court glosses over the speech/conduct distinction and finds that the pure act of expression can constitute “conduct.” Perhaps this could fly when there is repeated one-to-one contact that is unwanted, but that does not appear to be the case here.
The court says that the regulation at issue is content-neutral, but that seems contrary to case law. The Supreme Court has noted that emotive effects of speech are not the type of secondary effects (such as volume or other non-content disruption) that are a content-neutral basis for regulation. (See, e.g., Boos v. Barry: “‘The emotive impact of speech on its audience is not a ‘secondary effect’ unrelated to the content of the expression itself.”)
The statute is under-inclusive. Even assuming that the speech in question can form the basis of criminal liability—which should not be the case—there’s no stated justification for criminalizing online speech of this nature while leaving offline speech intact. As painful as it is, this type of tormenting by classmates has existed long before the internet.
The court skips over entirely the fact that minors have First Amendment rights too. While courts may analyze the scope of their rights differently in the school context, the statute is not tied to school-related activity and can’t be justified on this basis.
And finally, imposing liability for online posts that “encourage” others to post allegedly injurious content runs into a Section 230 problem.
This is yet another case in the emerging trend of cases that approve the imposition of criminal liability on speakers based on torment and intimidation suffered by putative victims. There’s no threat here, so it is hard to argue that the speech is unprotected on this basis. There’s no discussion of steps Dillon could have taken to avert the speech in question and whether the defendant continued to contact Dillon in a one-to-one setting after being told not to. The imposition of civil liability would be one thing, but criminal liability for this type of speech strikes me as a dangerous trend.
[The court does not mention US v. Elonis, the recent Supreme Court case dealing with the federal threat statute. It’s tough to say whether this is the type of ruling that falls through the cracks after Elonis, but it’s something a more robust ruling in Elonis may have addressed.]
Case citation: State v. Bishop, COA14-1227 (N.C. Ct. App. June 16, 2015).