Why the Cyberbullying Statute in NC was Declared Unconstitutional
A recent opinion by the North Carolina Supreme Court declared the cyberbullying statute unconstitutional. The decision affects both those charged with and convicted of a cyberbullying crime and those who have been victims.
Cyberbullying Laws in NC: The History
In 2009 the North Carolina General Assembly enacted a cyberbullying law that, among other provisions, makes it illegal for “any person to use a computer or computer network to… [w]ith the intent to intimidate or torment a minor[,] [p]ost or encourage others to post on the Internet private, personal or sexual information pertaining to a minor.” N.C.G.S. § 14-458.1(a)(1)(d).
Since that time, the ability to connect with someone and, if misused, bully or harass someone, is easier than ever. Between 2009 and 2016, social media networks such as Facebook have experienced enormous growth and new social media networks, such as Instagram and Snapchat, have been invented.
In June 2016, in State v. Bishop, the North Carolina Supreme Court declared the above-quoted subsection of the cyberbullying statute unconstitutional. In 2011, a young man posted on Facebook a photo of a sexually themed text message sent to him accidentally by a male classmate . After that, other classmates and acquaintances of the young man who sent the text, including Robert Bishop, engaged on Facebook with comments including name-calling, insults and accusations about each other’s sexual orientation.
In February 2012, Bishop was arrested and charged with one count of cyberbullying for his participation in the online harassment and was later convicted. Bishop appealed, saying that portion of the cyberbullying statute violated his freedom of speech, which is protected under the First Amendment of the U.S. Constitution. The North Carolina Court of Appeals affirmed the conviction, but the North Carolina Supreme Court agreed with the defendant and reversed it.
What Does It Change?
The North Carolina Supreme Court stated:
“We now conclude that N.C.G.S. § 14-458.1(a)(1)(d) restricts speech, not merely non expressive conduct; that this restriction is content based, not content neutral; and that the cyberbullying statute is not narrowly tailored to the State’s asserted interest in protecting children from the harms of online bullying.”
- Overturned the ruling of the first cyberbullying case in North Carolina, the State v. Bishop.
- Requires state legislators to better define laws related to cyberbullying so they protect minors but do not violate any other rights.
- Reaffirms the distinction between “content based” and “content neutral” laws. If a law is content based, which the cyberbullying statute is, it is presumed to violate freedom of speech because it requires police officers and other investigators to review the content of the expression to determine if a law has been broken. A content neutral law regulates the time, manner or place of expression but not the content of that expression. A content based speech regulation will overcome the presumption of unconstitutionality only if the government proves that the regulations are “narrowly tailored” to serve “compelling” state interests. In contrast, the level of scrutiny for a content neutral regulation is lower – it must be narrowly tailored to serve significant government interests.
- Means for the state of North Carolina, minors who are harassed online are still protected through harassment laws, but not necessarily for bullying occurring on social media websites such as Facebook, Snapchat or Twitter.
How the Cyberbullying Ruling Affects Parents of Minors
For parents of minors in North Carolina, the reversal of the law demonstrates a twofold lesson:
- Encourage your children to think before they post. While they do have the freedom of speech, their posts can be harmful to other people. They may not be charged with a crime for cyberbullying, but the statements can do irreversible harm. Whether or not a law exists, there have been numerous cases of cyberbullying driving minors to self-harm or commit suicide.
- Talk to your children about thinking before they react. If your children feel they are the victim of cyberbullying, they may be protected under other laws, such as harassment laws. In most cases of harassment, it is better to seek the advice of a lawyer than to retaliate.
What Parents Can Do About Cyberbullying
Cyberbullying can be prevented, from both the victim’s and the perpetrator’s sides, with help from the parents. Regardless of the laws – which continue to evolve as technology changes – attentive adults can guide children through the right and wrong ways to engage with their peers online.
If you are the parent of a child that does not use social media, now is the time to think about when you will allow your child to create social media accounts. Ask yourself: What age would my child be responsible enough to use social media? You should also consider the age restrictions imposed by the social media sites. Facebook, Twitter, Instagram and Snapchat all require a person to be at least 13 years old to join.
Many children begin their social media accounts while they are young. If your child already has social media profiles, be sure to monitor them and tell your child you will be doing it. Supervision for children doesn’t stop in the classroom, on the playground or while you’re present in real life. It should carry over to your children’s online presence, too. Knowing there is an adult watching may be enough reason for children to consider their actions and words toward others.
Get in Contact with a Lawyer if You’ve Been Harassed
The lawyers at Wilson, Reives & Silverman can help you fully understand your rights as a victim of harassment. We are here to advocate for and defend your rights. If you need legal help moving forward with your harassment case, call us today at (919) 636-6203 to make an appointment at our Sanford location.