Appeals Court Deems North Carolina Cyberbullying Law Constitutional

The court found that the cyberbullying law prohibits “intentional and specific” conduct, not the content or ideas expressed in online statements.

by Michael D. Abernethy, Times-News / June 18, 2015
080747, photos of Sam Hernandez for cyber-bullying story by Suzanne Dowling, 07-16-08 Bryan Hester

(TNS) — The North Carolina Court of Appeals ruled Tuesday that the state’s cyberbullying law doesn’t limit freedom of speech and upheld a guilty verdict in the state’s first cyberbullying trial, which was held in Alamance County in 2014.

The court found that the cyberbullying law prohibits “intentional and specific” conduct, not the content or ideas expressed in online statements.

“Any effect the statute has on speech or expression is merely incidental,” the opinion says.

Robert Bishop, 19, of Walking Stick Lane, Liberty, was found guilty of contributing to a string of hateful social media posts by Southern Alamance High School students targeting a classmate. He was placed on 48 months’ probation and ordered not to be on social media websites for one year.

Bishop appealed on grounds that the state’s cyberbullying law is overbroad and vague, and criminalizes speech that’s protected under the First Amendment. Bishop’s appellate attorney also argued that the trial judge erred in allowing certain evidence at trial and should have dismissed the case.

The cyberbullying law prohibits the use of 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.”

The Court of Appeals ruled that the law protects minors from being tormented.

“It was not the content of Defendant’s Facebook comments that led to his conviction of cyberbullying,” the opinion says. “Rather, his specific intent to use those comments and the Internet as instrumentalities to intimidate or torment (a student) resulted in a jury finding him guilty under the Cyberbullying Statute. The Cyberbullying Statute is not directed at prohibiting the communication of thoughts or ideas via the Internet. It prohibits the intentional and specific conduct of intimidating or tormenting a minor. This conduct falls outside the purview of the First Amendment.”

The opinion also states that not all speech is protected by the First Amendment, and that laws that burden free speech are allowed under certain circumstances. Specifically, the court found that some speech can be restricted “if there is a substantial government interest unrelated to the suppression of free expression; and if the incidental restriction on restriction on alleged First Amendment freedoms is no greater than is essential.”

The court noted that other states’ and areas’ cyberbullying laws have been overbroad and restricted too much speech, including a New York law that prohibited “any act of communicating” by electronic means to harass “any person” — not just children, as in North Carolina’s law.

The panel, Judges John Tyson, Martha Geer and Donna Stroud, also found the trial judge, Alamance County Senior Resident Superior Court Judge Wayne Abernathy, didn’t err during the trial by allowing certain statements and testimony into evidence.

Bishop was represented in arguments by attorneys Staples Hughes and James R. Grant.

Bishop could appeal the decision to the N.C. Supreme Court.

©2015 Times-News (Burlington, N.C.), Distributed by Tribune Content Agency, LLC.