In the grips of a nationwide panic that followed lurid media coverage of teen suicides linked to online bullying, legislators around the country stampeded to outlaw -- and at times even criminalize -- a vast range of "annoying" or "unwelcome" online speech.
North Carolina was in the lead of this lock-'em-up panic attack, and now its anti-bullying statute has been struck down as unconstitutionally overbroad.
In a unanimous opinion issued Friday, the North Carolina Supreme Court invalidated the state's 2009 cyberbullying statute, which made it a misdemeanor punishable by up to 120 days in jail to publish any "personal, private or sexual information" about a minor online with the intent to "intimidate or torment" the minor or the minor's family.
The case arose from the 2012 arrest and prosecution of a high school sophomore from Alamance County, who admitted to posting insults on a Facebook post about a classmate, including crude remarks speculating about the classmate's sexual habits.
The student, Robert Bishop, was convicted of violating the statute and sentenced to four years' probation. His attorneys challenged the conviction on the grounds that the statute violated the First Amendment.
Friday's opinion by Justice Robin E. Hudson reversed a 2015 ruling by the North Carolina Court of Appeals, which characterized the statute as a regulation only on "conduct" (that is, the act of posting) rather than on the content of speech.
The justices had no difficulty seeing through the Court of Appeals' strained attempt to salvage the statute:
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. ... 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.
Although the justices deemed the state's interest in protecting the safety of children to be a "compelling" one, the law flunked First Amendment scrutiny because it was not the "least restrictive means" of accomplishing that objective.
The statute's fatal flaw was its use of undefined terms ("intimidate," "torment," "personal," "private") that invited prosecution of teasing, jokes and gossip, even without proof that the targeted person was harmed by -- or even aware of -- the speech.
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 North Carolina opinion is the second in two years striking down an anti-bullying statute for criminalizing speech that is merely aggravating or irritating. In 2014, New York's highest court reached the same conclusion in granting the appeal of a 17-year-old prosecuted for posting sexual gossip about his schoolmates on Facebook.
Although the Bishop case challenged only North Carolina's 2009 bullying law, the ruling points to the certain unconstitutionality of a companion statute, enacted in 2012, making it a crime to post embarrassing information about school employees online. If the goal of protecting vulnerable children against online humiliation is not sufficiently compelling to justify wholesale prohibitions on speech, then protecting the reputations of government employees plainly cannot be.
Justice Hudson's assessment of the student-bullying statute applies even more forcefully to the state's attempt to protect school officials against criticism:
Civility, whose definition is constantly changing, is a laudable goal but one not readily attained or enforced through criminal laws.
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