In State v. Bishop (June 10, 2016), the Supreme Court of North Carolina reversed a unanimous panel of the Court of Appeals and struck down the state’s cyberbullying statute, N.C.G.S. § 14-458.1 as unconstitutional.

The underlying facts involved two high school students. Defendant Robert Bishop attended Southern Alamance High School. Dillion Price, a contemporary at the school, inadvertently sent out a sexually themed text message. A third classmate posted a screenshot of the message on Facebook. Several individuals, including defendant Bishop, then commented on that post and followups. The defendant’s comments allegedly included statements that (1) Price was “homophobic” and “homosexual” (2) Price’s original message was “excessively homoerotic” and (3) he “never got the chance to slap [Price] down before Christmas break.”

In December 2011, Price’s mother found him crying in his room, punching his pillow and beating his head. After viewing the exchanges, she notified Alamance County law enforcement.

Police arrested Bishop and charged him with one count of cyberbullying in violation of N.C.G.S. § 14-458.1. The warrant alleged that the defendant “unlawfully and willfully did use a computer network to, with the intent to intimidate and torment Dillion Price, a minor, post on the Internet private, personal and sexual information pertaining to the above named minor, to wit, commenting on Facebook about his sexual orientation and his intelligence.”

The defendant was convicted in a jury trial. The North Carolina Court of Appeals upheld the conviction and the Supreme Court granted certiorari. On June 10, 2016, the court unanimously reversed, holding that the cyberbullying statute unconstitutionally restricted speech in violation of the First Amendment. The court reached this conclusion after a three step analysis.

The court first rejected the state’s position that the statute proscribed conduct, and not speech. It noted that the cyberbullying statute made it a crime to (1) post or encourage others to post (2) certain information to the Internet (3) with the intent to intimidate or torment a minor. Therefore, the crime was posting itself – and the court viewed posting as speech. “Posting information on the Internet — whatever the subject matter — can constitute speech as surely as stapling flyers to bulletin boards or distributing pamphlets to passersby — activities long protected by the First Amendment.”

Second, the court found that by its own terms, the law was not content neutral: “The statute criminalizes some messages but not others, and makes it impossible to determine whether the accused has committed a crime without examining the content of his communication.” Consequently, the statute punished speech on the basis of its viewpoint, and was subject to the most stringent scrutiny.

Third, the court concluded that the statute’s sweeping language – including its failure to define “torment” and “personal” – meant the cyberbullying statute could not survive this stringent scrutiny. While protecting a minor’s wellbeing was a compelling government interest, the court was skeptical that “teenagers require protection via the criminal law from online annoyance.”

The court’s decision is in line with other jurisdictions’ determinations in analogous contexts. For instance, New York’s highest court similarly struck down a cyberbullying provision on parallel constitutional grounds in People v. Marquan M, 19 N.E.3d 480, 488 (N.Y. 2014).

Remarkably however, the Bishop decision rests uneasily with another recent North Carolina Supreme Court opinion involving speech restrictions on the Internet. In State v. Packingham (N.C. 2015), the court affirmed the constitutionality of N.C.G.S. § 14-202.5. That statute prohibits registered sex offenders from using websites available to minors. In Packingham, Defendant Lester Gerard Packingham was convicted of violating the statute by using Facebook – ironically enough to celebrate the dismissal of a traffic ticket. The Court of Appeals held the statute facially unconstitutional, reasoning that it prohibited a wide range of expression unrelated to its stated goal. The Supreme Court reversed.

First, the court noted the law proscribed access to websites. As such, the court viewed it as governing conduct, not speech. Next, it accepted the state’s asserted interest in preventing registered sex offenders from “harvesting information”. Finally, it held that N.C.G.S. § 14-202.5’s restrictions were sufficiently calibrated to the state’s objective to be constitutional.

The court noted registrants were not excluded from all websites. Rather, the ban applied only to websites that were available to minors. This barred registrants from numerous well known sites including Facebook, LinkedIn, Instagram, Twitter, Pinterest, Vine, Tumblr, and NYTimes.com. However, it allowed alternative means of expression on sites limited to adults. These sites, such as the Paula Deen Network, WRAL.com, Glassdoor.com, and Shutterfly, provided alternative venues of communication. Moreover, the statute did not affect direct communication such as text message, FaceTime, electronic mail, traditional mail, and phone calls. Since N.C.G.S. § 14-202.5 did not foreclose all communication, it was constitutional.

The divergent outcomes in Bishop and Packingham demonstrate the intricacies that often dictate the disposition of Internet cases. Broadly speaking, the mass of Internet cases involve a simple extrapolation of analogous brick-and-mortar caselaw into the cyber context. At the same time, courts are also increasingly confronted with scenarios on the jurisprudential frontier: those cases with facts, principles, considerations and implications that no court has dealt with before. Given the legal significance of conduct versus speech in the First Amendment arena, creating a consistent body of law in a technological realm where all speech has elements of conduct and vice versa will be an ongoing challenge for the courts. In these cases, as always, the devil is in the details.

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