North Carolina’s General Assembly adopted the sweeping cyberbullying legislation in 2009, amid concerns for the protection of children online. The provision at issue punishes individuals who “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.” The North Carolina Court of Appeals upheld the law in 2015, finding the statute regulated conduct, not speech. First Amendment advocates, including FIRE Vice President of Legal and Public Advocacy Will Creeley, warned of the potential chilling effect on speech the Court of Appeals’ ruling created.
“If you can’t tell what is and isn’t prohibited, it’s smart to just keep your mouth shut,” Creeley said. “And that’s the chilling effect that the First Amendment prohibits.”
The state Supreme Court’s decision comes in the case of Robert Bishop, who was a high school student in 2012 when he was arrested on a cyberbullying charge for commentary on a classmate’s Facebook photo. On a screenshot of text messages exchanged between two male students, several students posted insulting comments, including Bishop who wrote that the text messages were “excessively homoerotic.” The student’s mother contacted the police, who investigated and arrested Bishop.
Bishop was convicted and subsequently appealed. But he failed to convince the Court of Appeals of the statute’s unconstitutionality. Ultimately, the court determined the statute “punish[es] the act of posting or encouraging another to post on the Internet . . . .”
But last week, the state’s highest court agreed with Bishop and reversed the appellate court, finding that the statute indeed “violates the First Amendment” because it regulates speech rather than conduct.
Content-based statutes must withstand strict scrutiny, the most rigorous constitutional standard. Strict scrutiny is a two-pronged analysis inquiring whether (1) the regulation furthers a compelling state interest and (2) the means to accomplish the state interest are narrowly tailored. The state Supreme Court, quoting Reed v. Town of Gilbert (2015), found the cyberbullying statute is content-based because it “defin[es] regulated speech by [its] particular subject matter.” However, the state Supreme Court found the statute was not narrowly tailored to “serve the [s]tate’s asserted interest in protecting children from the harms resulting from online bullying.” Rather, it unconstitutionally “prohibits a wide range of online speech,” including speech protected by the First Amendment.
FIRE has previously noted that North Carolina’s cyberbullying statute is part of a worrying trend of online speech regulations that fail to properly define cyberbullying—a term that, unlike “hostile environment harassment,” does not have a consistent legal definition. While the statute may have been drafted with the laudable intent to protect children from online harassment, it encompasses protected speech. That means, as Creeley cautioned, it “can be used by administrators to censor unwanted speech.”
The Supreme Court of North Carolina got it right when it struck down the cyberbullying statute as unconstitutional. And states seeking to enact their own cyberbullying laws should emulate the narrow, speech-protective standard for student-on-student harassment set forth by the Supreme Court of the United States in Davis v. Monroe County Board of Education (1999). In Davis, the nation’s highest court defined student-on-student harassment as behavior that is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Adopting this definition would ensure the protection of First Amendment rights, while simultaneously insulating children from the harms of online bullying.
Vanessa Miller and Mary Zoeller are FIRE legal interns.