We’ve all heard terrible stories about kids bullying other kids online. Often the victims internalize the abuse and feel bad about themselves. Some kids are able to rise above it, but in the worst cases, cyber bullying can lead to drug and alcohol abuse or self-harm. There have been numerous cases of suicide following cyber bullying. For an overview of the challenges teens and kids are facing online, nobullying.com and stopbullying.gov are good places to start.
North Carolina’s Take on Cyber Bullying
Knowing there was a problem, our North Carolina state government decided to do something about it. But evidently not in the right way. The state’s statute says that it is 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.
Seems clear enough, right? Wrong! In last year’s case of State v. Bishop, the North Carolina Supreme Court found that the law was unconstitutionally vague, and tossed out the defendant’s conviction. Where does that leave the victims of cyber bullying? Not in great shape. Here’s how it happened:
State v. Bishop
Back in 2014, a group of boys in Alamance County thought it would be a good idea to post to Facebook a bunch of insulting and demeaning pictures and comments that accused a classmate of unusual sexual proclivities. His mother walked into his room one day and found him crying, throwing things and hitting himself in the head. When she took a look at his phone, she saw the source.
Several boys were arrested and pled guilty, but Robert Bishop went to trial, where a jury convicted him. Bishop appealed.
Bishop said the NC cyber bullying statute was unconstitutional because it governed speech, not conduct. Under the First Amendment, when the government regulates speech, it has to show that any law it passes is narrowly tailored to meet a compelling governmental interest. That is why it’s OK to make it illegal to yell “FIRE!!” in a crowded theater. People could be killed by a stampede, and regulating a warning about fires is pretty specific (“narrowly tailored”) to the situation. But most of the time, regulation of speech is frowned upon in our country.
It took a while for Bishop’s case to make its way to the NC Supreme Court. But when it did, the Court agreed with him, and his conviction was tossed. The Supreme Court said that while the state’s goal in protecting children from cyber bullying was compelling, there was no doubt about it, this statute was not written well enough to be used because it was too broad and vague to be enforceable.
Why the Court Said That the Statute Was Unconstitutional
- First, the Court said the law went far beyond what was in the state’s legitimate interest. For example, the terms “intimidate” and “torment” are not defined. The state had told the court that those terms should be “interpreted to mean” annoy, pester or harass. But who was going to do the interpreting if it wasn’t in the statute?
- Second, the Court found it troubling that “private, personal or sexual information” was not defined either. When a law lacks definition, too much is left up to the discretion of law enforcement, district attorneys, and juries, which is not acceptable when speech is criminalized.
- Finally, the Court did not like the fact that there was no requirement in the law that the victim of the online posting suffer injury or even that they are aware that the posting had been made. This may have been the most important point.
North Carolina & Cyber Bullying’s Current Status
So where does that leave the victims of cyber bullying in our state? We are hopeful the legislature will go back to the drawing board because cyber bullying is a growing and serious problem in our state and ought to be punished. In the past, our Supreme Court held that a law making it a crime to use a telephone to harass another person was constitutional. So it is possible to draw up an appropriate law, it’s just that no one has done it yet.
If your child has been a victim of school bullying, contact us for a consultation.