North Carolina Appeals Court upholds cyberbullying conviction over claims of First Amendment violations

NORTH CAROLINA — The North Carolina Court of Appeals recently upheld a criminal conviction of cyberbullying against a high school student who posted multiple lewd comments about a classmate on Facebook.

Robert Bishop, then a 16-year-old student at Southern Alamance High School, was convicted of one count of cyberbullying under North Carolina general statute § 14-458.1(a)(1)(d) in response to multiple comments he posted about former classmate Dillion Price on Facebook during the 2011-12 school year.

The statute, passed in 2009, makes it a crime for 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.

Bishop, according to a brief filed by counsel, challenged his conviction on the grounds that the statute is an “unconstitutionally overbroad” criminalization of protected speech — speech that does not encompass the narrow categories of speech denied First Amendment protection, defined as: fighting words, incitement, obscenity, and true threats.

Bishop argued that North Carolina’s statute is not content-neutral as generally required by the First Amendment — it identifies and punishes communications that relate to “private, personal, or sexual information” pertaining to a minor. Meanwhile, the state argued that the statute does not punish the communication of thoughts or ideas, and that because the act of using the Internet to “intimidate and torment” is not constitutionally protected, the statute is not overbroad, according to the brief filed by the state.

The appeals court determined that the statute was not content-based, as Bishop would not have been convicted without proof of intent to intimidate or torment Price. The statute regulates conduct, not speech, and any effects on speech are “merely incidental” and no greater than necessary, said the court.

The intersection of free speech and safety on social media has been a topic of conversation for years, but recent controversies have thrust the issue into the spotlight. The Supreme Court recently heard another appeal based on First Amendment grounds in Elonis v. United States — although that case ended with a ruling in favor of the defendant. Anthony Elonis, an aspiring Pennsylvania rapper who posted violent lyrics on Facebook regarding his estranged wife, co-workers, a kindergarten class, and state and federal law enforcement, was convicted under a federal threat statute before the Court reversed his conviction. The Court determined that a person can be convicted for online threat speech only with proof of awareness that the speech will be received as threatening by the target.

North Carolina’s statute itself is part of a “worrying trend” that the Foundation for Individual Rights in Education has seen over the past several years — that cyberbullying has been prohibited without defining what cyberbullying is, said Will Creeley, vice president of legal and public advocacy for FIRE. Officials add cyberbullying to lists of prohibited behaviors, as if the definition of cyberbullying was “self-evident,” he said.

Case headed to the N.C. Supreme Court

“The opinion is frustrating, for, I think, a number of reasons, not the least of which is the court seems to dismiss the defendant’s First Amendment claims without appropriate consideration of the wide reach of the statute,” Creeley said.

Creeley believes that the court did not fully consider the breadth of the statute in question, conducting only a “cursory review” of the statute’s reach.

“I think the court had an opinion in mind and appears to have worked backward to justify it,” said Creeley. He added that the court may not have been able to see past the “instant facts” of the case — the vulgarity of Bishop’s speech toward Price.

Bishop’s comments included disparaging remarks about Price, including remarks related to sexual practices. He also expressed regret that he did not get to “slap him [Price] down” before Christmas break.

The charge was filed after Alamance County Sheriff’s Detective David Sykes began an investigation into the allegations of cyberbullying after Price’s mother discovered the derogatory comments when she confiscated Price’s phone and contacted law enforcement.

Bishop was sentenced to a suspended sentence of 30 days in the custody of the Alamance County Sheriff and placed on supervised probation for a period of 48 months.

The appellant will seek review of the decision in the North Carolina Supreme Court, Staples Hughes, North Carolina’s Appellate Defender, said in an email.

Cyberbullying policies called ‘redundant’

Creeley said he’s worried that this ruling may lead to other prosecutions of online speech that might threaten First Amendment interests.

The U.S. Supreme Court properly defined student-to-student harassment in Davis v. Monroe County Board of Education, said Creeley. In that 1999 decision, the court ruled that damages could be sought for harassment only when it was so “severe, pervasive, and objectively offensive” that the target couldn’t receive full educational benefits.

Even though state policies against cyberbullying may have the best of intentions behind them, he said that these provisions are often written without sufficient concern for First Amendment rights, and can be used by administrators to censor unwanted speech.

“It’s too easy, in our experience, to wield the ‘cyberbullying’ [policies] against speech that people in power simply don’t like,” he said.

Cyberbullying is also prohibited under anti-harassment policies, making separate anti-cyberbullying provisions redundant, Creeley said.

Creeley predicts a chilling effect on student speech as a result of policies like the one in North Carolina.

“If you can’t tell what is and isn’t prohibited, it’s smart to just keep your mouth shut, and that’s the chilling effect that the First Amendment prohibits,” Creeley said.