by Michael Lowrey
My latest court story for Carolina Journal:
RALEIGH — In 2009, the General Assembly passed a law prohibiting cyberbullying — the use of the Internet or social media networks for deliberate harassment — of minors. Does the law violate the First Amendment’s guarantee of freedom of speech?
In a June decision in a case from Alamance County, the state’s second highest court decided that the cyberbullying law passes First Amendment muster because it attempts to prohibit the intent to “torment” a minor by making specific claims of a personal or sexual nature over online networks.
During the 2011-12 school year, Dillion Price was a sophomore at Southern Alamance High School. Not long after the school year 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 online comments he made about Price, including those stating: “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” icon; 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. Bishop appealed his conviction.
Though adopted six years ago, the state’s appellate courts hadn’t examined the constitutionality of the cyberbulling law. At trial and again before the Court of Appeals, Bishop’s attorneys argued that the statute was void because it was overly broad and criminalized speech protected by the First Amendment.
“Defendant asserts the statute criminalizes both the narrow categories of speech historically denied First Amendment protection, as well as a broad array of constitutionally protected speech,” write Judge John Tyson for the appeals court. “We disagree.”
An individual may challenge a law as overly broad even if it were properly applied to him, as the U.S. Supreme Court has held that the existence of an overly expansive law may cause others to refrain from engaging in constitutionally protected speech or expression. The doctrine can extend to conduct as well as speech.
For its part, the state claimed that the cyberbullying statue was much like North Carolina’s harassing telephone call law, which the Court of Appeals has upheld. Bishop attempted to distinguish the cyberbullying law, noting that it prohibited posting certain types of content — “private, personal, or sexual information pertaining to a minor” while the harassing phone call law hadn’t addressed the content of the calls.
The appeals court rejected this distinction.
The United States Supreme Court held a regulation of speech which appears to be content-based on its face will be deemed content-neutral, if motivated by a permissible content-neutral purpose.
The cyberbullying statute punishes the act of posting or encouraging another to post on the Internet with the intent to intimidate or torment. Like the telephone, the Internet can also be used as an instrumentality for communication. However, its use for sharing thoughts and ideas does not prevent the Internet from also being used as a mechanism for individuals to engage in harassing or tormenting conduct.
It was not the content of defendant’s Facebook comments that led to his conviction of cyberbullying. Rather, his specific intent to use those comments and the Internet as instrumentalities to intimidate or torment Dillion resulted in a jury finding him guilty under the cyberbullying statute.
The cyberbullying statute is not directed at prohibiting the communication 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.
The appeals court distinguished North Carolina’s law from an Albany, N.Y., cyberbullying restriction that was struck down as overbroad. The Albany provision covered all forms of electronic communications, including ham radio and telegram, and extended to adults and corporations. North Carolina’s law is more narrowly focused, the court noted, prohibiting only the disclosure of “private, personal, or sexual information pertaining to the minor” on the Internet with the specific intent to intimidate or torment a minor.
The appeals court did not address whether a separate cyberstalking statute that applies to adults might be unconstitutionally vague, as Bishop did not argue the point at his trial. Some critics have noted that the cyberstalking law’s wording does not appear to clarify what conduct it aims to prohibit, making enforcement arbitrary.
Court of Appeals rulings are binding interpretations of state law unless overturned by a higher court. The N.C. Supreme Court is not required to hear the case if Bishop appeals as the decision by the three-judge panel of the appeals court was unanimous.
The case is State v. Bishop (14-1227).