Ruled law regulated speech, not just criminal conduct
By David Donovan
The Daily Record Newswire
RALEIGH — A North Carolina law intended to combat the bullying of minors via the internet has been struck down by the state’s Supreme Court. The decision was a sharp reversal—after a Court of Appeals panel had unanimously upheld the law, the Supreme Court unanimously struck it down.
The statute, passed in 2009, had made it “unlawful for any person to use a computer or computer network to … post or encourage others to post on the Internet private, personal, or sexual information pertaining to a minor … with the intent to intimidate or torment a minor.”
Robert Bishop was convicted in February 2014 of violating that law over social media posts he made while he was a student at Southern Alamance High School. In Facebook posts, Bishop included altered photos of another student and copies of text messages that student had sent. He and other students then made vulgar comments on the posts disparaging the targeted student.
Last year the Court of Appeals ruled that the law did not violate the First Amendment because it was not directed at prohibiting speech, but instead prohibited an intentional and specific conduct of intimidating or tormenting a minor.
But on June 10 the Supreme Court took a different view of the law, ruling first that the law regulated speech, not just criminal conduct. Writing for the court, Justice Robin Hudson ruled that speech is no less entitled to protection simply because it takes place on the internet.
Having decided that the law restricted the exercise of free speech, the Supreme Court delved into issues that the Court of Appeals had not felt compelled to reach and decided that the state had not met its burden of proving that the law satisfied the doctrine of strict scrutiny—that the statute served a compelling governmental interest, and was narrowly tailored to serve that interest.
The justices agreed that protecting children from online bullying was a compelling interest of the state, but found that the law was too sweeping in its breadth to survive constitutional scrutiny. The court noted 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.
Crucially, several key terms in the law were impermissibly vague, the court ruled.
“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,’” Hudson wrote. “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 court went on to find that “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.”
Eugene Volokh, a UCLA law professor and one of the country’s best-known First Amendment scholars, wrote a friend-of-the-court brief opposing the law on behalf of the Electronic Frontier Foundation. Volokh argued that the Supreme Court had the better side of the argument in finding that the law was impermissibly broad in its scope.
“The law was billed as a ban on bullying, but bullying is not a well-defined term. I think a lot of members of the legislature haven’t fully figured out what they’re trying to ban,” Volokh said. “Here they define it as revealing any private, personal or sexual information about a minor with the intent to intimidate or torment that minor.
“But if I’m talking about friends of mine and what they’re doing, I’m revealing personal information. And any time someone talks about their love life, they’re revealing information about their partners. They tried to limit the law by restricting it to speech that is intended to torment, but ‘torment’ is also not a well-defined term.”
