Cyberbullying Law Upheld Over First Amendment Challenge

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The court of appeals just upheld North Carolina’s cyberbullying statute over a First Amendment challenge. The result is especially noteworthy because it contrasts with a ruling last year in a similar case in New York. But the opinion does leave at least one important issue open.

Facts. The North Carolina case is State v. Bishop. The defendant and the victim were students at the same high school. The defendant posted several comments on Facebook about the victim, including a post calling him “homosexual”; a comment referring to a message the victim had sent to another student on Facebook as “excessively homoerotic in nature”; a statement, in response to another student’s suggestion that they “kick [the victim’s] ass” that the defendant “never got the chance to slap [the victim] down before Christmas break”; and crude comments about the victim’s genitals. The victim became distraught as a result of these and other comments, and his mother contacted law enforcement. The defendant acknowledged making the comments at issue.

Procedural history. The defendant was charged with cyberbullying under G.S. 14-458.1. (The title of the statute refers to “cyber-bullying,” but I’ll omit the hyphen in keeping with common usage.) Specifically, the State alleged that he used a computer or computer network, with the intent to intimidate or torment, to post or encourage others to post “private, personal, or sexual information pertaining to a minor.” G.S. 14-458.1(a)(1)(d). He was convicted in district court and again in superior court, and appealed.

Defendant’s argument. The defendant argued that the cyberbullying statute is unconstitutionally vague and overbroad on its face and as applied, and “fails to provide adequate notice of the prohibited speech, lends itself to arbitrary enforcement, and chills protected speech.”

Court’s ruling. The court of appeals affirmed the defendant’s conviction. It found that the defendant’s vagueness argument was not properly preserved. As to overbreadth, it held that the statute targets conduct, not speech:

The [c]yber-bullying [s]tatute is not directed at prohibiting the communication of thoughts or ideas via the Internet. It prohibits the intentional and specific conduct of intimidating or tormenting a minor. This conduct falls outside the purview of the First Amendment.

To the extent that the law creates any incidental burden on speech, the court found that the burden is no greater than necessary to serve the law’s purpose.

New York case. The court briefly cited and distinguished People v. Marquan M., 19 N.E.3d 480 (N.Y. 2014), a New York case striking down that state’s cyberbullying law as overbroad. The case has received quite a bit of attention. The Wall Street Journal summarizes it here. Professor Eugene Volokh writes about it here.

Did the defendant really post “private, personal, or sexual information”? In addition to his First Amendment argument, the defendant also raised a sufficiency of the evidence challenge to his conviction, questioning the adequacy of the State’s evidence that he posted “private, personal, or sexual information pertaining to [the victim].” The court of appeals found that this argument was not preserved and declined formally to address it.

The issue strikes me as a potentially tricky one for future cases. Obviously, the defendant’s comments were of a personal nature and referred to the victim’s sexuality. But whether they conveyed any “information” as opposed to opinions, insults, and interpretations, may be debatable. In other words, there does not appear to have been a breach of trust where the defendant publicized information that the victim conveyed to him in confidence. But perhaps “information” may be read more broadly. In declining to review the issue, the court remarked that the State presented “substantial evidence of the precise nature of the comments,” and perhaps that is some indication of how this panel would have ruled had the issue been properly preserved.

5 comments on “Cyberbullying Law Upheld Over First Amendment Challenge

  1. […] statute at issue in the case, State v. Bishop, makes it a crime for someone to use a computer to, “[w]ith the intent to intimidate or torment a […]

  2. […] statute at issue in the case, State v. Bishop, makes it a crime for someone to use a computer to, “[w]ith the intent to intimidate or […]

  3. As an old soldier of the bar and knowing a little about the law school at UNC-CH, one would of course not be surprised that no member of the law faculty has been vocal about the instant statute, at least not where it can be heard or read. An excelling student on law review, Haley E. Phillips, took on the statute, and very effectively:
    http://www.nclawreview.org/2015/05/online-bullying-and-the-first-amendment-state-cyberbullying-statutes-after-people-v-marquan-m/

    Unlike the Court of Appeals, Phillips found that Marquan M was apposite.

    Even the NC ACLU, which has been subverted to conflicting special interests, had expressed its doubts that this “cyberbullying” law could withstand a constitutional challenge.

    I was not a little incredulous, and then shocked, to read the decision and the almost insane reasoning which led to Judges Tyson, Geer, and Stroud affirming the conviction. Is there something in our air or water?

    At first I expected FIRE would ride in on white horses. But it was the EFF and the celebrated law professor, Eugene Volokh, who have filed and published an amicus brief. Finally some sanity. And the case, though no dissent in the court of appeals, is now in the Supreme Court. Rarity upon rarities!

    The only other remarks I would make is that this defendant was at 16 just a child when he wrote his disgusting comments on Facebook. He shouldn’t have done it, but he could have been effectively sanctioned without criminalizing him. The District Court judge even forbade the boy from commenting on his guilty verdict on the internet. And the use BEFORE AN ALAMANCE JURY of objectionable prejudicial (and incompetent) evidence against Robert Bishop which indicated he did not believe in God is nothing short of an outrage.

    Putting his name up in klieg lights on the appellate docket documents as a pauper is also an outrage. Has there ever been a scintilla of official shame tucked away inside the mass of official insolence in North Carolina? What purpose other than prejudice does it serve to cast the boy as someone living on the other side of the railroad tracks? It reminds me of all the children in steerage who died when the Titanic sank, while the first-class children all survived. Yes, Lady Justice, you are blind, but you smell money. Money and power are your aphrodisiacs.

  4. Here is the pdf file of the amicus brief filed in the NC Supreme Court:

    https://www.eff.org/files/2015/09/22/state_v._bishop_amicus_brief.pdf

    Such adjectives used to describe the lack of knowledge by the C of A:

    “mistaken” and “unsound.”

    I would call the prosecution “frivolous and malicious.” Of course, that leaves out the adjective “unconstitutional.”

  5. […] the First Amendment.” The case is State v. Bishop, and the opinion is here. I previously wrote here about the court of appeals ruling upholding the statute. This post summarizes the case and […]

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