RALEIGH, N.C. (AP) — North Carolina’s cyberbullying law, designed to protect children from harassing online posts, violates free speech rights and is unconstitutional, the state Supreme Court ruled Friday.
The opinion strikes down the 2009 law that made posting on the Internet information designed to “intimidate or torment” a minor or the child’s parent, or encouraging such postings, a misdemeanor. While nearly all states have laws against electronic forms of harassment, North Carolina has been among at least 18 states with criminal sanctions for such cyberbullying, according to a research clearinghouse on such laws.
“This is the first time that I’m aware of a state-level criminal statute that’s been struck down by a state supreme court,” said Justin Patchin with the Cyberbullying Research Center.
Justice Robin Hudson, writing for the seven-member court, said while the purpose of the law is commendable— protecting children from the harms of online bullying — the law prohibits a wide range of online speech and doesn’t require victims to show they suffered injury. The law also offers no definitions of what it means to intimidate or torment and what compromises “private, personal, or sexual information pertaining to a minor” that is an element of the crime, according to Hudson.
“The statute sweeps far beyond the state’s legitimate interest in protecting the psychological health of minors,” Hudson wrote. “Civility, whose definition is constantly changing, is a laudable goal but one not readily attained or enforced through criminal laws.”
The ruling involved Robert Bishop, who was an Alamance County student charged with the crime in 2012 and later convicted. Friday’s ruling reversed a Court of Appeals ruling and overturned Bishop’s conviction. He had received a 30-day suspended jail sentence and probation that was stayed on appeal, his lawyer said.
“We were pleased that the court got it right,” said Jim Grant, an assistant appellate defender, after Friday’s decision.
According to the opinion, it all began in 2011 when another student at Southern Alamance High School inadvertently sent a sexually themed text message to a third student, who then posted it to Facebook.
More postings and angry comments followed. It came to the point that the mother of the teenager making the original posting found her son crying and hitting himself on the head. Worried her son may harm himself, the mother contacted police, which performed undercover online work leading to the arrest of Bishop and other students.
Bishop was convicted in two trial courts and a unanimous three-judge panel on the Court of Appeals rejected his arguments, saying the law didn’t regulate speech but rather conduct. But communication doesn’t lose protection simply because of how it is dispersed, the Supreme Court said.
“Posting information on the Internet — whatever the subject matter — can constitute speech as surely as stapling flyers to bulletin boards or distributing pamphlets to passers-by — activities long protected by the First Amendment,” Hudson wrote. There were no dissenting opinions on the seven-member court.
Attorney General Roy Cooper, whose office defended the law in court, encouraged legislators to re-examine the issue after Friday’s ruling.
“Just because violence happens online doesn’t make it any less real or less hurtful,” Cooper said in an emailed statement. “Cyberbullying can lead to physical harm, depression in its victims and even suicide and it’s troubling to see this law overturned.”
Patchin, a criminal justice professor at the University of Wisconsin-Eau Claire, said the ruling may direct lawmakers in North Carolina and other states to be very precise in the language that they use for such laws. But defining the specific harm caused may be difficult, and the effect an online posting has depends on the experiences of the person who is the subject, Patchin said.