Alamance case was first to test the law

The N.C. Supreme Court found the state’s anti-cyberbullying law violates the U.S. Constitution in the case of a Liberty man convicted in 2014.

Robert Bishop was 18 when he was convicted of cyberbullying Feb. 5, 2014, in Alamance County Superior Court. He was sentenced to 48 months’ probation and ordered not to be on Facebook or other social networking sites for a year. He appealed.

In the opinion State vs. Bishop, released Friday, the high court found the state statute on cyberbullying restricts speech based on its content and is not “narrowly tailored” to serve the state’s interest in protecting minors from harm. The court called it so broad it could “essentially criminalize posting any information about any specific minor if done with the requisite intent,” the opinion reads.

BISHOP’S WAS THE first jury trial in Alamance County under the state’s cyberbullying law.

Evidence in his 2014 trial showed Bishop and a group of Southern Alamance High School students contributed to a string of hurtful and derogatory Facebook posts about a classmate in late 2011 and early 2012. One of the teens posted manipulated photos of the classmate and screenshots of text messages between Bishop and the student to the social networking site. Bishop was one of a number of teenagers who commented on the photos.

Bishop was appealing a guilty verdict from Alamance County District Court. Other defendants in the case were found guilty or pleaded guilty in District Court and had their cases dismissed after serving a year’s probation on deferred prosecution, court documents showed.

The case went from Alamance County Superior Court to the N.C. Court of Appeals, which unanimously found the law prohibits “conduct, not speech” — that is the act of posting — and restrictions on speech were incidental to restricting that conduct and were no greater than necessary to further the state’s interest in protecting children from the harm of harassment and bullying.

THE SUPREME COURT, however, found the statute making it illegal to post or encourage others to post “private, personal or sexual information pertaining to a minor” online with the intent to “intimidate or torment a minor” violated the First Amendment protection of free speech as applied to the states under the 14th Amendment.

Since the statute restricts particular subject matter, according to the N.C. Supreme Court opinion, it restricts some postings based on their content, so it does restrict speech. In fact, the state could not determine whether a crime had been committed without reading the content of online postings.

The U.S. Supreme Court has generally allowed restrictions on speech only when they are “narrowly tailored” to meet an important government interest. While the N.C. Supreme Court agreed that protecting children from cyberbullying is important, the law is not the least restrictive way to do it. It is written so broadly, the court found, that the victim doesn’t even have to know about the bullying, and by using “personal” information about a minor as a criterion, it basically makes it illegal to post information about a particular child if the state thinks the intent is there.

“The statute prohibits a wide range of online speech,” the court writes, “whether on subjects of merely puerile interest or on matters of public importance — and all with no requirement that anyone suffer any actual injury.”