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NC Supreme Court Strikes Down Part Of Cyberbullying Law

Mike Burns
Flickr - bit.ly/14CCwbd

Cyberbullying has been a criminal offense in North Carolina since 2009. But the state supreme court has ruled a key part of the cyberbullying law is unconstitutional. In a unanimous decision last week, the court found it violates the First Amendment by restricting speech.

WFAE's Lisa Worf joins All Things Considered host Mark Rumsey ro discuss.

RUMSEY: How does this law define cyberbullying?

WORF: The list of things that can result in a misdemeanor charge under the law is pretty long, but the part of the law the state supreme court struck down, laid it out this way: "any person using a computer or 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. The law certainly leaves a lot of room for interpretation.

RUMSEY: So how did the North Carolina Supreme Court end up reviewing the law?

  WORF: A high school student named Robert Bishop was convicted of cyberbullying in Alamance County. The case started with a Facebook post in 2011.  Another student posted a text message he said was from this one student. It was of a sexual nature. Several students including Bishop commented on the post. He wrote the text was "excessively homoerotic" among other things. There was some back and forth. Some might call it teasing. Some of the comments were crude. The teenager, who was targeted, had something of a break down at home. His mother ended up confiscating his phone, found some of the comments and pictures, and contacted police. A detective then used an undercover Facebook account to view the postings. Police charged Bishop and at least five other students with cyberbullying. A jury convicted Bishop and the state court of appeals ruled the law is constitutional.

RUMSEY: What was the court of appeals reasoning for that?

WORF: Basically, the Court of Appeals found that the law regulates conduct, not speech because it punishes the act of posting and only when it comes to private, personal, or sexual information about a minor with intent to torment.

RUMSEY: And why did the North Carolina Supreme Court disagree? 

WORF: The supreme court said communication doesn't lose protection merely because it involves the act of posting something online. In the opinion Justice Robin Hudson pointed out, most speech involves some kind of action, be it putting ink to paper, hoisting a picket sign, or painting a canvas. Furthermore, the court found, the law is way too broad. It prohibits a wide range of online speech that covers "subjects of merely puerile interest" and "matters of public importance." Hudson concluded the protection of minors' mental well-being may be a compelling governmental interest, but the law is so broad it "criminalizes behavior that a robust contemporary society must tolerate because of the First Amendment, even if we do not approve of the behavior."

RUMSEY: Is there any idea how often police bring charges under the cyberbullying law?

WORF: According to data from the state office of administrative courts, there were at least 23 cyberbulling cases filed last year.  Some were dismissed, some defendants entered guilty pleas. 

RUMSEY: How many other states have cyberbullying laws like this?

WORF: Most states don't have statutes that actually criminalize cyberbullying.  I spoke with a UCLA law professor Eugene Volokh who tracks cases involving technology and the First Amendment.  He actually filed a friend of the court brief in this case, arguing the law is unconstitutional. He says North Carolina's caught his attention because it was so broad.