No Bully for You: North Carolina Supreme Court Reverses Cyber-bullying Conviction on First Amendment Grounds

Bad Days on the Online Playground

Among the many emotions awakened in adolescence, perhaps the strongest are yearnings for social acceptance and stature, loss of which has been known to induce tailspin depressions. In extreme -- but seemingly all too common -- cases, the pain of ridicule or exclusion leads to suicide or homicide. Not long ago, a North Carolina high school student’s mother, finding him distraught following his peers’ social media postings ridiculing him, feared for his well being. She sought police intervention. Following online sleuthing, police identified the sources of the taunts, and made six arrests, including the arrest of defendant here, who, like his target, was a high school senior.

High School Cyber-Bully Arrested, Convicted, and Initially Unsuccessful on Appeal

Defendant was charged under the North Carolina cyber-bullying statute, which forbids: "...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 intimidate or torment a minor." N.C.G.S. § 14-458.1(a)(1)(d) (2015).

Defendant Bishop was convicted in the North Carolina district court, sought and received trial de novo in the superior court, and was convicted there as well. The North Carolina Court of Appeals refused to dismiss defendant's case on First Amendment grounds, asserting that the statute forbids action -- online postings -- not speech. North Carolina v. Bishop, No. COA14-1227 (June 16, 2015). The Court of Appeals perceived that any burden on speech was incidental to the prohibited use of the internet. Accordingly, the statute was not constitutionally infirm, and defendant’s conviction remained intact. Id.

State Supreme Court Takes Another View, Striking Down the Cyber-bullying Statute

The North Carolina Supreme Court permitted discretionary review, and reversed, finding the cyber-bullying statute violated the First Amendment of the United States Constitution, as applied through the Fourteenth Amendment. North Carolina v. Bishop, No. 223 PA 15 (June 10, 2016). The Court found that the statute imposed specific content based restrictions on protected speech. The Court unhesitatingly -- with the parties' assent -- found the state to have a compelling interest in protecting children from cyber-bullying. Endorsement of the interest, however, could not salvage the statute from strict scrutiny analysis, for its “sweeping” and undefined prohibitions of entire categories of speech were not narrowly tailored to serve legislative goals.

The North Carolina Supreme Court observed that recent United States Supreme Court opinions have stressed that before finding a statute to be content neutral, evaluation of the statute both as to its facial provisions and as to its intent must be made. Reed v. Town of Gilbert, ___ U.S. ___, ___, 135 S. Ct. 2218 (2015). The criminal cyber-bullying statute regulated speech according to subject matter -- forbidding online postings concerning sexuality or private matters. Although the court noted that the conduct and speech distinction is not always easily parsed, in this case particular speech, concerning sexuality or private matters, was prohibited. Relying on Reed, supra, the North Carolina Supreme Court found that an admirable legislative intent -- the protection of youth -- could not be pressed into service to dilute the reality of the content based restriction. Any concern that the focus of the statute was on online behavior was of no moment, as the United States Supreme Court has indicated that the First Amendment’s protections remain the same across all new media. Reno v. ACLU, 521 U.S. 844, 870, 117 S. Ct. 2329, 2344 (1997). The North Carolina statutory scheme was not the least restrictive means of accomplishing the state’s compelling interest in protecting youth from bullying, the court found. The breadth of the content restrictions as well as a vague but similarly broad mens rea requirement -- “intent to intimidate or torment a minor” -- compelled the court to conclude that the statute ran afoul of First Amendment protections.

Statutory weaknesses were found where the statute did not require that injury occur or even that the victim be aware that the online violation had occurred. In the court’s view, the statue swept without limitation across content, going well beyond any interest in psychological health. The suggestion that one might use common definitions in the absence of statutory direction offered no solace, as it would be possible to construe the statute as ensuring against annoyance, an unsupportable result.

What Future Legislation Might Accomplish

While constitutionally permissible criminal restrictions on online speech might not be impossible, the Supreme Court's recent foray -- and some might say hasty retreat -- in this area left open issues that, had they been addressed, might prove helpful to legislators. Elonis v. United States, No. 13-983, 575 U.S. ____ (2015).

Emerging Thinking Concerning Protections from Bullying

It is not surprising that courts have begun to find compelling societal interests in protection of children from bullying. This is a logical and heartfelt response to youth suicides or mass homicides which suggest cyber-bullying has a role not only in ordinary harms but in extraordinary tragedy. Yet notwithstanding the North Carolina Supreme Court’s unflinching endorsement of such an interest, the law is still emerging in this area, with no consensus concerning the existence or scope of interests in protection against bullying at this time. Some courts have located interests within the school setting, even where the online activity does not occur at school. Kowalski v. Berkeley County School District, 652 F. 3d 565 (4th Cir. 2011) (Tinker supports imposition of discipline for bullying, including for off campus online activity intended to reach the school); Frudden v. Pilling, No. 3:11-cv-00474 (D. Nev.) (February 10, 2015) (requiring school uniforms serves compelling state interest in deterring bullying of lower socioeconomic status children). Other courts reject the notion that there exists any fundamental right to be free from bullying. Morrow v. Balaski, 719 F.3d 160 (3rd Cir. 2013); Galloway v. Chesapeake Union Exempted Village School Board of Education, No. 1:11-850 (S.D. Ohio 2012). Another court refused to dismiss a case not based on the issue of bullying as such but because of issues presented concerning a right to a free public education. Eilenfeldt v. United C.U.S.D. #304 Board of Education, 30 F. Supp. 3d 780 (C.D. Ill. 2014).

Criminalizing Youths' Online Speech

Although some courts seem reluctant to recognize or to amplify rights to protection from bullying, other courts currently recognize injuries to mental health and psychological well being as cognizable injuries, at least where children are concerned. All this seems salutary until one reflects on criminalizing speech, and not just adult speech, but speech directed at minors by other minors. The First Amendment issues are daunting, as the United States’ Supreme Court’s jurisprudential restraint in this area well illustrates. If the nation’s finest legal minds have shown reluctance to enter this fray, how is a high school student to comprehend the restraints on what he or she may or may not say. The disabilities of youth are well known: neither intellect, nor emotion, nor judgment are developmentally complete in adolescence. As such, how significant is it to society to prohibit online aggression where doing so will result in a criminal record for student not yet out of high school?

Advocates would argue that criminality attaches to and may expand from bullying, making a juvenile conviction a small price to pay to maintain order and to protect other young people. Yet even those who would decry the harms caused by cyber-bullying might not welcome the collateral consequences of criminal convictions.

Alternative Means with Which to Address Online Injury

In ancient times -- the days before the internet -- disputes among children were often resolved on the playground, with visits to school administrators’ offices, with meetings among parents and students, and sometimes, yes, with police involvement. The addition of more formal measures -- resort to the courts -- even if needed and even if sometimes just -- may be draconian in itself. While many attorneys scoff at the notion of restorative justice, which lacks the comfortable parameters of wins and losses and arguments and judgments, the realm of bullying and children’s injuries to each other would seem a field ripe for exploration of the utility of these measures. Well intentioned statutes locate enormous power in victims. They are designed to do so, and that power, intended as a counterbalance to injury, is a good thing, yet it may diminish the potential for learning and growth that youths’ disputes involve. What of the opportunity for a victim to confront, in a secure setting other than a courtroom, his or her assailant and seek amends? What of the opportunity for the errant youth to mature and to come to terms with his or her wrongdoing without becoming criminalized? If there are good arguments for restorative justice, this would seem to be an area in which such measures would be not only welcome, but could be both efficient and effective.

The North Carolina Appellate Decisions

Copies of the Supreme Court and the Appellate Court's opinions follow.