Last week, the state supreme court unanimously ruled that a provision of North Carolina’s cyberbullying statute, G.S. 14-458.1, “violates 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 discusses the new opinion. Continue reading
Tag Archives: cyberbullying
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. Continue reading →
Category: Crimes and Elements, Uncategorized | Tags: bishop, cyber-bullying, cyberbullying, first amendment, new york, overbreadth, vagueness
Perhaps in response to news reports of teen suicides blamed on embarrassing and/or insensitive web postings, I have been fielding a fair number of calls about North Carolina’s cyberbullying statute. The statute, G.S. 14-458.1, was enacted in 2009 and applies to offenses committed on or after that date. S.L. 2009-551, sec. 3.
Subsection (a) sets out the elements of the offense. A person is guilty of cyberbullying when he or she uses a computer or computer network to do any one of the following six things:
(1) with the intent to intimidate or torment a minor
(a) builds a fake profile or Web site;
(b) poses as a minor in an Internet chat room or electronic mail or instant message;
(c) follows a minor online or into an Internet chat room; or
(d) posts or encourages others to post on the Internet private, personal, or sexual information pertaining to a minor; or
(2) with the intent to intimidate or torment a minor or the minor’s parent or guardian
(a) posts a real or doctored image of a minor on the Internet;
(b) accesses, alters, or erases any computer network, computer data, computer program, or computer software, including breaking into a password protected account or stealing or otherwise accessing passwords; or
(c) uses a computer system for repeated, continuing, or sustained electronic communications, including electronic mail or other transmissions, to a minor; or
(3) plants any statement, whether true or false, tending to provoke or that actually provokes any third party to stalk or harass a minor; or
(4) copies and disseminates, or causes to be made, an unauthorized copy of any data pertaining to a minor for the purpose of intimidating or tormenting that minor (in any form, including, but not limited to, any printed or electronic form of computer data, computer programs, or computer software residing in, communicated by, or produced by a computer or computer network), or
(5) signs up a minor for a pornographic Internet site, or
(6) without authorization of the minor or the minor’s parent or guardian signs up a minor for electronic mailing lists or to receive junk electronic messages and instant messages, resulting in intimidation or torment of the minor.
The new provision is in G.S. Chapter 14, Article 60, pertaining to computer-related crime. G.S. 14-453 contains the definitions that apply to that article; it defines the statutory terms computer, computer network, electronic mail, etc.
Punishment depends on the defendant’s age when the offense occurs. The offense is a Class 1 misdemeanor if the defendant is eighteen or older at the time of the offense. G.S. 14-458.1(b). If the defendant is under eighteen, it is a Class 2 misdemeanor. Id. The statute provides for discharge and dismissal of charges against defendants under eighteen, in certain circumstances, and for expunging the record if discharge and dismissal is ordered. G.S. 14-458.1(c)
Aside from questions about the elements of cyberbullying, another question that comes up is: “If cyberbullying doesn’t fit; what else can I charge?” The answer, of course, depends on the facts. Several related offenses include:
- Communicating threats (G.S. 14-277.1)
- Threatening letters (G.S. 14-394)
- Harassing phone calls (G.S. 14-196)
- Stalking (G.S. 14-277.3A)
- Cyberstalking (G.S. 14-196.3)
- Ethnic intimidation (G.S. 14-401.14)
- Committing a misdemeanor because of prejudice (G.S. 14-3)
- Extortion (G.S. 14-118.4)
- Accessing a computer without authorization (G.S. 14-454(b))
- Computer trespass (G.S. 14-458)
Several recent news items may be of interest to readers of this blog:
1. FBI data shows that violent crimes, and especially homicides, dropped again last year and are now at rates that one expert says haven’t been seen since the 1960s. The FBI’s report is here and the News and Observer‘s story is here.
2. In my last news roundup, I noted the mounting evidence that Texas executed an innocent man. I recently came across this local story, which argues that Cameron Willingham wasn’t innocent at all. It’s a pretty compelling read and a nice counterpoint to the New Yorker piece I referenced earlier. (Hat tip: Crime and Consequences.)
3. The border search doctrine holds that suspicionless searches of anyone and anything coming into the United States are consistent with the Fourth Amendment. The Department of Homeland Security relies on the border search doctrine to search travelers’ laptop computers. Although these searches sometimes yield results — most often, as far as I can tell, by uncovering child pornography — business travelers and others have complained about them, especially when the authorities seize a computer and keep it for a protracted period of time for analysis. The Department recently issued a new set of standards for when and how it will conduct such searches. The policy, available here, is summarized and criticized here. This is relevant to North Carolina, because we have both a maritime border and several international airports.
4. North Carolina has a new cyberbullying law, making it a misdemeanor to undertake various computer activities in order to intimidate, tormet, or harrass minors. You can read the session law here. It’s been quietly controversial (if such a thing is possible), with odd bedfellows the ACLU and the Civitas Institute both concerned about its potentially far-reaching effects. Similar legislation has been proposed at the federal level, as a result of the so-called MySpace suicide case. Stay tuned for further developments.
5. Finally, on the lighter side, police in Kissimmee, Florida, arrested a man for chewing breath mints, which the police mistook for crack cocaine. The local story is here. (This story probably isn’t so “light” for the person arrested, since he apparently spent three months in jail awaiting lab test results.)
