Monday, June 27, 2016

Cyberbullying, Sexual Information Pertaining to a Minor and the First Amendment

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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