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Friday, July 1, 2016

North Carolina's Cyberbullying Law is Unconstitutional

North Carolina has a cyberbullying statute that makes it illegal "for any person to use a computer or computer network to...[p]ost or encourage others to post on the Internet private, personal, or sexual information pertaining to a minor...[w]ith the intent to torment a minor."  N.C.G.S. 14-458.1(a)(1)(d). In 2011, a number of high school students were charged with violating this statute after they posted a variety of Facebook posts, pictures, and comments against a fellow student. Bishop, one of the students who was charged, was convicted by a jury. 

In his appeal of his conviction, Bishop argued that the cyperbullying statute was unconstitutional under the First Amendment because it criminalizes protected speech based on its content.  The North Carolina Supreme Court agreed, finding the statute unconstitutional and overturning his conviction. State of North Carolina v. Bishop, No. 223PA15 (June 10 2016). 

First, the Court held that the statute restricts speech, and not non-expressive conduct. The Court noted that posting information on the Internet is no different than stapling flyers to bulletin boards or distributing pamphlets - activities that are clearly protected by the First Amendment, based on its content. The Court emphasized that online communications are no less protected than other communications. 

Second, the Court found the cyberbullying statute to be content-based, based on the U.S. Supreme Court's recent decision in Reed v. Gilbert (sign case). The Court determined that the statute regulates speech based on its "particular subject matter" - in this case, the law prohibits postings of "private, personal, or sexual information pertaining to a minor."

Third, because the law was content-based, it had to survive a "strict scrutiny" analysis. Although the Court found that protecting children from online bullying is a compelling governmental interest, the problem with this particular law was that it went too far. The Court noted that the word "torment" could include conduct that is simply annoying, and according to the Court, it wasn't "clear that teenagers require protection via the criminal law from online annoyance."

In short, the Court determined that North Carolina's cyberbullying law went too far, and was far broader than the First Amendment allows. As a result, the Court reversed Bishop's conviction for cyberbullying.

Post Authored by Julie Tappendorf


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