North Carolina’s Cyber Bullying Law Has Cleared Its First Constitutional Hurdle, But The Future of the Law is Still Uncertain

September 25, 2015

Late one night, Alamance county mother Angela Kelly entered her son’s room and found him distraught.  Her teenage son Dillon was crying, beating himself in the head, and throwing things in his room.  As punishment for staying up late, Angela confiscated Dillon’s phone – and discovered that his classmates had been using Facebook to publicly mock and threaten him.   She contacted the Alamance County Sheriff’s Department and brought several print-outs of the comments to Sheriff’s Detective David Sykes.
On February 9th, 2011 one of Dillon’s classmates, Robert Bishop, was arrested and charged with a violation of N.C. Gen. Stat. § 14-458.1, North Carolina’s “Cyber Bullying Law”.  At trial, the State introduced screen shots of three Facebook posts that the defendant had commented on.  The posts contained all the hallmarks of the high school bully; on a screenshot of a text message sent by Dillon, the defendant and others had commented that Dillon was “excessively homoerotic” and called those who came to his defense “equally pathetic.” A second Facebook post introduced by the State contained an altered photograph of Dillon and his dog, and was accompanied by several comments insinuating that Dillon engaged in bestiality.  Finally, in a separate Facebook Post, Dillon’s classmates expressed regret that they had not been able to “slap him down” before the Christmas break. Bishop “tagged” Dillon in the image, presumably to ensure that Facebook would notify Dillon that image had been posted and he was being ridiculed.
Robert Bishop received a suspended 30 day sentence accompanied by 48 months of supervised probation.  Mr. Bishop, now 18, appealed his sentence, arguing that N.C. Gen. Stat. § 14-458.1 is an overbroad criminalization of speech.   In essence, the Overbreadth Doctrine holds that certain statutes must be struck down because of their ham-handed construction. While an “overbroad” statute may be properly applied to the defendant’s speech, it is so broadly construed that it will prevent others from engaging in speech that is in fact constitutionally protected.
In assessing whether a particular law should be deemed unconstitutionally overbroad, a court will look to whether the law advances a “substantial governmental interest.”   Laws not found to advance such interests will be struck down on the theory that they will chill protected speech. Here, the North Carolina Court of Appeals found that the protection of children from the “psychological and emotional harm of cyber-bullying” constituted a substantial government interest.
Not all state cyber bullying laws have received such judicial accommodation.  In 2014, the New York Court of appeals struck down an Albany County cyber bullying law on the grounds that the statute, which aimed to punish those who use “electronic or mechanical means” to “attempt to inflict significant emotional harm on another person” was over-inclusive and could be construed to apply to adults or even corporate entities.
N.C. Gen. Stat. § 14-458.1 has not suffered a similar fate, largely because the scope of the statute is more tightly constrained.  The statue requires that the defendant have a specific intent, and that the communications fit a prescribed range of content – the “disclosure of private, personal or sexual information pertaining to a minor. “ While legislators are often known for their inarticulate statutory construction, it appears that the North Carolina General Assembly has done an admirable job of producing a statute devoid of the usual opacity.
Statutory accuracy aside, critics have argued that North Carolina’s Cyberbullying law is not only unconstitutional, but that it is unsound public policy and the North Carolina Supreme Court will soon weigh in on the issue. While the Court is not required to accept an appeal from a unanimous decision by the Court of Appeals, the Supreme Court granted discretionary review on August 20th.  Although North Carolina’s Cyber bullying law has passed it’s first adjudicatory test, the constitutional validity of the law is, as yet, uncertain.
While it would be understandable to see recent cyber bullying laws as a prime example of legislation by anecdote, the phenomenon is in fact widespread.

Cyber bullying is a concern that begs societal redress. The question, however, is whether the issue is within the ambit of our legal, educational or family systems.

Within the next couple months, the North Carolina Supreme Court will have provided its answer.
For additional discussion of cyber-bullying statues and attendant free speech concerns, please see “Should Anti-Cyberbullying Laws Be Created?” and “The Best Intentions: A Constitutional Analysis of North Carolina’s Anti-Cyberbullying Statue.