This post examines an opinion from the Supreme Court of North Carolina: State of North Carolina v. Bishop, 2016 WL 3221098 (2016). As the opinion explains, on
9 February 2012, defendant Robert
Bishop was arrested and charged with one count of cyberbullying under North
Carolina's cyberbullying statute, North Carolina General Statutes §14-458. Under that statute, it is `unlawful for 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.’ North Carolina General Statutes §14-458.1(a)(1)(d) (2015).
On 5 February 2014, defendant was
convicted on that sole charge by a jury in the Superior Court in Alamance
County. On appeal, the Court of Appeals concluded that the cyberbullying statute
`prohibits conduct, not speech’; that any burden on speech is `merely
incidental’; and that this `incidental’ burden `is no greater than necessary’
to further the State's `substantial’ interest in protecting children from the
harmful effects of bullying and harassment. State v. Bishop, __N.C.
App. ___, 774 S.E.2d 337, 344-45, 349 (2015).
State of North
Carolina v. Bishop, supra.
Bishop asked the Supreme Court to review the Court of
Appeals’ decision, and the court agreed. State
of North Carolina v. Bishop, supra. In its opinion, the Supreme Court does
not summarize the facts that led to the prosecution and the two appeals, but
the Court of Appeals’ opinion does:
Dillion Price (`Dillion’) was a
sophomore at Southern Alamance High School in Alamance County, North Carolina
during the 2011–2012 school year. In September 2011, Dillion's classmates began
posting negative comments and pictures of him on his Facebook page. Dillion
received notification on his cell phone after any Facebook comment was posted
about him.
Defendant, one of Dillion's classmates,
posted several comments about Dillion, which included posts calling him `homophobic’
and `homosexual,’ and that he was `slamming someone on the open forum that
is the internet.’ Defendant also stated `he never got the chance to slap
[Dillion] down before Christmas break.’ Defendant made additional comments rife
with vulgarity, discussed further in the State's evidence, below.
Late one night in December 2011,
Dillion's mother found him crying, punching his pillow, beating himself in the
head, and throwing things in his room. Dillion's mother confiscated his cell
phone as punishment for being awake so late on a school night. After looking at
his phone, Dillion's mother discovered the `derogatory comments,’ which had
upset Dillion, and contacted local law enforcement. Dillion's mother brought
several print-outs of the Facebook conversations to Alamance County Sheriff's
Detective David Sykes. . . .
Detective Sykes began an investigation
and used undercover Facebook profiles to search for posts and comments in which
Dillion was mentioned. Detective Sykes testified `[w]henever [he] found anything
that appeared to have been . . . cyber-bullying [he] took a screen shot of it.’
Detective Sykes compiled a list of
names during his investigation. He went to Southern Alamance High School to
interview the students on his list on 7 February 2012. Defendant was one of the
students he interviewed. Defendant admitted he recognized some of the Facebook
comments as his posts.
On 9 February 2012, Defendant was
arrested and charged with one count of cyber-bullying under North Carolina
General Statutes § 14–458.1(a)(1)(d). The warrant alleged 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.’
Following a trial in Alamance County
District Court, Defendant appealed to the superior court for a trial de novo. A jury trial was held in Alamance County Superior Court on 3
February 2014. Defendant exercised his constitutional right not to testify on
his own behalf.
State of North
Carolina v. Bishop, 774 S.E.2d 337 (Court of Appeals of North Carolina
2015).
The Court of Appeals’ opinion goes on to describe the
evidence the prosecution introduced at Bishop’s trial:
The State introduced and published to
the jury `screen shots’ of three Facebook posts in which Defendant had
commented. Detective Sykes also read those posts into evidence at trial. Each
screen shot is discussed in turn.
The State's Exhibit 2 consisted of a
screen shot Facebook post of a text message Dillion had accidentally sent to
another classmate. Over thirty comments were added by various individuals in
reference to the original post. Defendant added the following comments: (1) `This
is excessively homoerotic in nature. Exquisite specimen;’ (2) `Anyone who would
be so defensive over Dillion can't be too intelligent;’ (3) `And you are
equally pathetic for taking the internet so seriously;’ and, (4) `There isn't a
fight. We're slamming someone on the open forum that is the internet.’
The State's Exhibit 3 contained another
screen shot Facebook post of a text message exchanged between Dillion and a
classmate. Several students commented they hated Dillion, and one asked, `Can
we just kick his ass already?’ Defendant commented, `I never got to slap him
down before Christmas Break,’ followed by a `sad face’ emotion icon. Another student
requested for someone to `tag’ Dillion, in order for him to be notified of
these posts. Defendant replied, `I'll add him.’
The State's Exhibit 4 was a third
screen shot Facebook post of text messages exchanged between Dillion and a
classmate. The original text message from the classmate included an
altered picture of Dillion and his dog. Several students posted vulgar and
derogatory comments in response, which insulted Dillion. Defendant posted
comments, including: `I heard that his anus was permanently stressed from
having awkwardly shaped penises in it’ and stated that Dillion's genitals were
`probably a triangle.’
The jury's verdict found Defendant
guilty of one count of cyber-bullying. The trial court imposed a suspended
sentence of 30 days in the custody of the Alamance County Sheriff and placed
Defendant on supervised probation for a period of 48 months. Defendant gave
notice of appeal in open court.
State of North
Carolina v. Bishop, supra (Court of Appeals).
On appeal to the state Supreme Court, Bishop argued, as he
had before the Court of Appeals, that the state’s cyberbullying statute,
specifically North Carolina
General Statutes § 14-458.1(a)(1)(d), is unconstitutional under the First
Amendment . . . because it criminalizes protected speech based on its content,
and because, in doing so, the law extends well beyond the government's asserted
interest in protecting children from the harms caused by online
bullying. The challenged provision makes it `unlawful for 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.’ North Carolina General
Statutes § 14-458.1(a)(1)(d).
State of North
Carolina v. Bishop, supra.
The Supreme Court began its analysis of Bishop’s argument by
explaining that
[w]e must first determine whether North
Carolina General Statutes § 14-458.1(a)(1)(d) restricts protected speech or
expressive conduct, or whether the statute affects only nonexpressive conduct.
Answering this question determines whether the First Amendment is
implicated. See, e.g., Texas v. Johnson, 491 U.S. 397 (1989) (stating that conduct acquires First Amendment protection only when it `possesses
sufficient communicative elements’). Yet this inquiry is not always easy or
straightforward.
On one hand, the Supreme Court of the
United States has recognized that expressive conduct falls within the ambit of
the First Amendment's protections—at least when that conduct is `inherently’
expressive. Rumsfeld v. Forum for Academic & Institutional Rights,Inc., 547 U.S. 47 (2006) (`Instead, we have extended First Amendment
protection only to conduct that is inherently expressive[, such as flag
burning]' (citing Texas v. Johnson, supra). On the other, that
Court has also long held that otherwise proscribable criminal conduct does not
become protected by the First Amendment simply because the conduct happens to
involve the written or spoken word. See, e.g., United States v. Alvarez, 132 S. Ct. 2537 (2012) (plurality opinion) (noting
that “speech integral to criminal conduct” remains a category of historically
unprotected speech); accord Giboney v. Empire Storage & Ice
Co., 336 U.S. 490 (1949) (`[I]t has never been deemed an abridgment of
freedom of speech or press to make a course of conduct illegal merely because
the conduct was in part initiated, evidenced, or carried out by means of
language, either spoken, written, or printed’). . . ; see also R.A.V.
v. City of St. Paul, 505 U.S. 377 (1992) (`[W]ords can in some
circumstances violate laws directed not against speech but against conduct (a
law against treason, for example, is violated by telling the enemy the Nation's
defense secrets)’). . . . Against this
blurred doctrinal landscape, the line is not always bright between what is
protected by the First Amendment and what is not.
State of North Carolina
v. Bishop, supra.
The court went on to explain that,
[h]ere, however, we are satisfied
that North Carolina General Statutes § 14-458.1(a)(1)(d) applies to
speech and not solely, or even predominantly, to nonexpressive conduct. As
noted, the statute prohibits anyone, on threat of criminal punishment, from `[p]ost[ing]
or encourag[ing] others to post on the Internet [any] private, personal, or
sexual information pertaining to a minor’ `[w]ith the intent to intimidate or
torment a minor.’ North Carolina General Statutes § 14-458.1(a)(1)(d). In
contrast with the statute we upheld in Hest Techs., Inc. v. State ex
rel. Perdue, 366 N.C. 289, 749
S.E.2d 429 (2012), which proscribed operating or placing into operation `an electronic machine or device' to conduct a sweepstakes, Hest
Techs., Inc. v. State ex rel. Perdue, this statute outlawed posting
particular subject matter, on the internet, with certain intent. The statute at
issue in Hest regulated conduct, Hest Techs., Inc. v. State
ex rel. Perdue; the statute here regulates protected 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. See, e.g., Lovell v. City of Griffin, 303 U.S. 444 (1938) (`The [First Amendment] is not
confined to newspapers and periodicals. It necessarily embraces pamphlets and
leaflets. These indeed have been historic weapons in the defense of liberty, as
the pamphlets of Thomas Paine and others in our own history abundantly
attest’). . . . Such communication does not lose protection merely because it
involves the “act” of posting information online, for much speech requires an
`act’ of some variety—whether putting ink to paper or paint to canvas, or
hoisting a picket sign, or donning a message-bearing jacket. See, e.g., Cohen v. California, 403 U.S. 15 (1971) (holding that wearing a jacket with
an antiwar vulgarity constituted protected speech, not merely conduct).
Nor is such communication subject to
any lesser protection simply because it occurs online. As the United States
Supreme Court has made clear, the protections of the First Amendment extend in
full not just to the Internet, see Reno v. ACLU, 521 U.S. 844 (1997) (`[O]ur
cases provide no basis for qualifying the level of First Amendment scrutiny
that should be applied to [the Internet]’), but to all new media and forms of
communication that progress might make available. . . . Accordingly, we conclude that North
Carolina General Statutes § 14-458.1(a)(1)(d) of North Carolina's
cyberbullying statute implicates the First Amendment because that provision
restricts speech and not merely conduct.
State of North
Carolina v. Bishop, supra.
The Supreme Court then took up the related issue of
whether this portion of the
cyberbullying statute is content based or content neutral. This central inquiry
determines the level of scrutiny we apply here. Content based speech
regulations must satisfy strict scrutiny. Such restrictions `are
presumptively unconstitutional and may be justified only if the government
proves that they are narrowly tailored to serve compelling state interests.' Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015). . . . In contrast,
content neutral measures—such as those governing only the time, manner, or
place of First Amendment-protected expression—are subjected to a less demanding
but still rigorous form of intermediate scrutiny. The government must prove that
they are `narrowly tailored to serve a significant governmental interest, and
that they leave open ample alternative channels for communication of the
information.’ McCullen v. Coakley, 134 S. Ct. 2518 (2014) (quoting Ward v. Rock Against Racism, 491 U.S. 781 (1989)).
Until recently, it was unclear how a
court should determine whether a speech restriction is content based or content
neutral. In some cases, the Supreme Court of the United States has suggested
that a reviewing court should focus on the intent behind the measure; in
others, it has emphasized the plain text of the statute and how it would
operate in practice. . . . At times, the Court suggested both emphases
within the course of a single opinion. . . .
State of North
Carolina v. Bishop, supra.
The Supeme Court’s opinion goes on to explain that,
[r]ecently, however, in Reed v.
Town of Gilbert that Court clarified that several paths
can lead to the conclusion that a speech restriction is content based and
therefore subject to strict scrutiny. This determination can find support in
the plain text of a statute, or the animating impulse behind it, or the lack of
any plausible explanation besides distaste for the subject matter or
message. In short, `[b]ecause strict scrutiny applies either when a law is
content based on its face or when the purpose and justification for the law are
content based, a court must evaluate each question before it concludes that the
law is content neutral and thus subject to a lower level of scrutiny.’ Reed v. Town of Gilbert, supra.
Here, it is clear that the
cyberbullying statute is content based, on its face and by its plain text,
because the statute `defin[es] regulated speech by [its] particular subject
matter.’ Reed v. Town of Gilbert,
supra. The provision under which defendant was arrested and prosecuted
prohibits `post[ing] or encourag[ing] others to post . . . private, personal,
or sexual information pertaining to a minor.’ North Carolina General
Statutes § 14-458.1(a)(1)(d).
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. The
State's justification for the cyberbullying statute `cannot transform [this]
facially content based law into one that is content neutral.’ Reed v. Town of Gilbert, supra, and we
therefore reverse the Court of Appeals holding to the contrary.
State of North
Carolina v. Bishop, supra.
As Wikipedia explains, “the U.S. courts have established
certain standards that they apply when a constitutional principle, such as the
First Amendment, are implicated by government action.”
In this case, since the Supreme Court found that the statute
creates a content based restriction on
protected speech, we can uphold this portion of the cyberbullying statute only
if the State can demonstrate that it satisfies strict scrutiny. To do so, the
State must show that the statute serves a compelling governmental interest, and
that the law is narrowly tailored to effectuate that interest. See,
e.g., Reed v. Town of Gilbert, supra.
That protecting children from online
bullying is a compelling governmental interest is undisputed. While the State
would normally be required specifically to “identify an ‘actual problem’ in
need of solving,” Brown v. Entertainment Merchants Association, 564 U.S. 786, 799 (2011) (quoting U.S. v. Playboy Entertainment Group 529 U.S. 803 (2000)), and to `demonstrate with clarity
that its “purpose or interest is both constitutionally permissible and
substantial”’ Fisher v. Univ. of Texas at Austin, 133S. Ct. 2411 (2013) (quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (plurality opinion)), here the State asserts, and
defendant agrees, that the General Assembly has a compelling interest in
protecting children from physical and psychological harm. We also note that the
special status of minors is a subject for which the Supreme Court of the United
States has shown a particular solicitude. That Court's long-standing
recognition that `youth is more than a chronological fact,’ Eddings v. Oklahoma, 455 U.S. 104 (1982), has led it, on one hand, to recognize a
compelling interest in the protection of minors. . . . Accordingly, in line
with these consistent and converging strands of precedent, we reaffirm that the
State has “a compelling interest in protecting the physical and psychological
well-being of minors.’
But just as the Court has shown a
particular cognizance of the vulnerabilities of minors, so too has it shown a
particular wariness of allowing strict scrutiny to become `strict in theory but
feeble in fact.’ Fisher v. Univ. of Texas at Austin, supra.
The State must show not only that a challenged content based measure
addresses the identified harm, but that the enactment provides `the least
restrictive means’ of doing so. McCutcheon v. FEC, 134 S. Ct. 1434 (2014) (plurality opinion). . . .
State of North
Carolina v. Bishop, supra.
The North Carolina Supreme Court then took up the issue in
this case, explaining that
[w]ith these principles in mind, we now
turn to sub-subdivision 14-458.1(a)(1)(d) of the cyberbullying statute. . . .
The central question then becomes whether this language embodies the least
restrictive means of advancing the State's compelling interest in protecting
minors from this potential harm.
We hold that it does not. At the
outset, it is apparent that the statute contains no requirement that the
subject of an online posting suffer injury as a result, or even that he or she
become aware of such a posting. In addition, as to both the motive of the
poster and the content of the posting, the statute sweeps far beyond the
State's legitimate interest in protecting the psychological health of minors.
Regarding motive, the statute prohibits anyone from posting forbidden content
with the intent to `intimidate or torment’ a minor. However, neither
`intimidate’ nor `torment’ is defined in the statute, and the State itself contends
that we should define `torment’ broadly to reference conduct intended `to
annoy, pester, or harass.’ The protection of minors' mental well-being may
be a compelling governmental interest, but it is hardly clear that teenagers
require protection via the criminal law from online annoyance.
The description of the proscribed
subject matter is similarly expansive. The statute criminalizes posting online
`private, personal, or sexual information pertaining to a minor.’ . . . Again,
these terms are not defined by the statute. The State has suggested that we
interpret this language by defining `private’ to mean `[s]ecluded from the
sight, presence, or intrusion of others,” or “[o]f or confined to the
individual.’ The State would then define `personal’ as `[o]f or relating to a
particular person,’ or `[c]oncerning a particular person and his or her private
business, interests, or activities.’ And it would define `sexual’ as `[o]f,
relating to, involving, or characteristic of sex, sexuality, the sexes, or the sex
organs and their functions,’ or `[i]mplying or symbolizing erotic desires or
activity.’ While all of these definitions are broad, the State's proposed
definition of `personal’ as `[o]f or relating to a particular person’ is
especially sweeping. Were we to adopt the State's position, it could be
unlawful to post on the Internet any information `relating to a particular
[minor].’ Such an interpretation would essentially criminalize posting any information
about any specific minor if done with the requisite intent.
State of North
Carolina v. Bishop, supra (emphasis in the original).
The court therefore held that,
while adding a mens rea requirement can
sometimes limit the scope of a criminal statute, reading the motive and subject
matter requirements in tandem here does not sufficiently narrow the extensive
reach of the cyberbullying statute. Even under the State's proposed
construction of the statutory terms, North Carolina General Statutes § 14-458.1(a)(1)(d)
could criminalize behavior that a robust contemporary society must tolerate
because of the First Amendment, even if we do not approve of the behavior.
Civility, whose definition is constantly changing, is a laudable goal but one
not readily attained or enforced through criminal laws.
In sum, however laudable the State's
interest in protecting minors from the dangers of online bullying may be, North
Carolina's cyberbullying statute `create[s] a criminal prohibition of alarming
breadth.’ U.S. v. Stevens, 559 U.S. 460 (2010). . . . Even under
the State's interpretation of North Carolina General Statutes § 14-458.1, the
statute prohibits a wide range of online speech—whether on subjects of merely
puerile interest or on matters of public importance—and all with no requirement
that anyone suffer any actual injury. In general, `[i]t is rare that a
regulation restricting speech because of its content will ever be permissible.’ Brown
v. Entertainment Merchants Association, supra (quoting United States
v. Playboy Entm't Grp., 529 U.S. at 818, 120 S. Ct. at 1889).
Certainly, North Carolina General Statutes §14-458.1(a)(1)(d) of the
cyberbullying statute is not.
State of North
Carolina v. Bishop, supra.
The Supreme Court therefore held that
North Carolina General Statutes §14-458.1(a)(1)(d) restricts
speech, not merely nonexpressive conduct; that this restriction is content
based; and that it is not narrowly tailored to the State's asserted interest in
protecting children from the harms of online bullying. As such, the statute
violates the First Amendment's guarantee of the freedom of speech. We therefore
reverse the decision of the Court of Appeals finding no error in defendant's
conviction for cyberbullying.
State of North Carolina
v. Bishop, supra.
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