John Locke Update / Research Newsletter

New Media, New Laws, New Problems

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Americans have been quite creative about finding novel ways to use — and abuse — the new communications media that have become available in recent years. As a result, legislatures and courts throughout the country have been struggling with the problem of how to prevent people from abusing the new media without violating their right to free speech. In North Carolina, this on-going struggle took some interesting turns in 2015 as the courts and the legislature dealt with some particularly egregious forms of new media abuse.

Cyber-Bullying

In State v. Bishop, which was decided in June, the NC Court of Appeals upheld a statute that makes it a crime to engage in certain activities on the internet with “the intent to intimidate or torment a minor.” Among the prohibited activities are the following:

Post or encourage others to post on the Internet private, personal, or sexual information pertaining to a minor.

Post a real or doctored image of a minor.

Use a computer system for repeated, continuing, or sustained electronic communications, including electronic mail or other transmissions, to a minor.

Make any statement, whether true or false, intending to immediately provoke, and that is likely to provoke, any third party to stalk or harass a minor.

Copy and disseminate, or cause to be made, an unauthorized copy of any data pertaining to a minor.

In reaching its decision, the Court found that:

The Cyber-bullying 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 defendant, who was 16 at the time of the offence, has appealed. It will be interesting to see whether the NC Supreme Court will hear the case, and, if so, how it will rule. Treating activities like the ones listed above as conduct rather than speech is quite a stretch. Nevertheless, a recent Supreme Court opinion dealing with a different form of social media abuse suggests that it may side with the Court of Appeals.

Use of Social Networking Sites by Sex Offenders

In September, in State v. Packingham, the Supreme Court upheld a statute that bans the use of commercial social networking websites by registered sex offenders. Like the Court of Appeals in Bishop, in Packingham the Supreme Court found that the statute in question prohibited conduct rather that speech. It held that:

As is apparent to any who access them, social networking Web sites provide both a forum for gathering information and a means of communication. Even so, … the essential purpose of [the statute] is to limit conduct, specifically the ability of registered sex offenders to access certain carefully-defined Web sites. This limitation on conduct only incidentally burdens the ability of registered sex offenders to engage in speech after accessing those Web sites that fall within the statute’s reach. Thus we conclude [the statute] is a regulation of conduct.

Unlike the Court of Appeals decision in Bishop, the Supreme Court’s decision in Packingham was not unanimous. Justice Hudson (joined by Justice Beasley) dissented, saying:

I do not agree with the … assertion that the statute primarily regulates conduct and places only an “incidental” burden on speech. This statute completely bars registered sex offenders from communicating with others through many widely utilized commercial networking sites. Therefore, in my view, it primarily targets expressive activity usually protected by the First Amendment.

Maliciously posting explicit photos online

Classifying a prohibited activity as conduct rather than speech makes it easier for a court to uphold its prohibition, but it is not necessary. Notwithstanding its constitutionally protected status, speech may be regulated if the government can show that “the regulation is necessary to serve a compelling state interest and … is narrowly drawn to achieve that end.” Rather than rely on a dubious distinction between conduct and speech, legislators who are concerned about the abuse of new media would do better to craft regulatory statutes that meet this strict standard.

Near the end of the 2015 legislative session, the NC General Assembly demonstrated how that can be done in a new law designed to prevent people from posting sexually explicit images online in order to humiliate a former spouse or lover. Under the new law, a person is guilty of the crime of “disclosure of private images” if all of the following apply:

(1)          The person knowingly discloses an image of another person with the intent to do either of the following:

a.         Coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.

b.         Cause others to coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.

(2)       The depicted person is identifiable from the disclosed image itself or information offered in connection with the image.

(3)       The depicted person’s intimate parts are exposed or the depicted person is engaged in sexual conduct in the disclosed image.

(4)       The person discloses the image without the affirmative consent of the depicted person.

(5)       The person discloses the image under circumstances such that the person knew or should have known that the depicted person had a reasonable expectation of privacy. 

This law appears to meet the exacting standard set out above. Preventing the malicious posting of explicit photos online is arguably “a compelling state interest,” and the statute certainly is “narrowly drawn”; nevertheless, we won’t know for sure whether the law passes constitutional muster until the inevitable challenges have made their way through the court system.

Child Pornography

Reconciling new laws with the right to free speech isn’t the only problem that can arise when an attempt is made to regulate the use of new media. Ensuring the logical coherence of laws written at different times and for different reasons can also be a problem. A couple of Fayetteville teenagers recently found that out the hard way.

For readers who may have missed it, sexting is a new form of sexual activity in which the parties exchange erotic messages and images using their cell phones. Since the age of consent for actual sex in North Carolina is 16, one might assume that the age of consent for this sort of virtual sex would also be 16, but it turns out that’s not the case.

In September the Fayetteville Observer reported that the starting quarterback at Douglas Byrd High School had been suspended from the team after being charged with four counts of sexual exploitation of a minor, which is a felony. The charges were filed after police investigating an unrelated matter found sexually explicit photos of the student on his cell phone. The police found similarly explicit photos of his girlfriend on her cellphone and charged her with two counts of the same crime. Paradoxically, while the age of majority in North Carolina is 18 — which is what made taking and possessing the photos a crime — juvenile jurisdiction under North Carolina criminal law ends at 16, so the teens were charged as adults.

The felony charges were dropped under a deferred prosecution agreement in exchange for admissions of responsibility for the distribution of harmful material to minors, which is a misdemeanor. This is a good result under the circumstances, but the irony and the absurdity remain: for 16- and 17-year olds, sexting is a crime while sex itself is not.

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Jon Guze is Director of Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over 20 years. He received a J.D., with honors, from Duke Law School in… ...

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