{"id":3617,"date":"2015-09-25T12:01:33","date_gmt":"2015-09-25T16:01:33","guid":{"rendered":"http:\/\/ncjolt.org\/?p=3617"},"modified":"2020-06-04T20:53:35","modified_gmt":"2020-06-04T20:53:35","slug":"north-carolinas-cyber-bullying-law-has-cleared-its-first-constitutional-hurdle-but-the-future-of-the-law-is-still-uncertain","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/north-carolinas-cyber-bullying-law-has-cleared-its-first-constitutional-hurdle-but-the-future-of-the-law-is-still-uncertain\/","title":{"rendered":"North Carolina\u2019s Cyber Bullying Law Has Cleared Its First Constitutional Hurdle, But The Future of the Law is Still Uncertain"},"content":{"rendered":"

Late one night, Alamance county mother Angela Kelly entered her son\u2019s room and found him distraught.\u00a0 Her teenage son Dillon was crying, beating himself in the head, and throwing things in his room.\u00a0 As punishment for staying up late, Angela confiscated Dillon\u2019s phone \u2013 and discovered that his classmates had been using Facebook to publicly mock and threaten him.\u00a0 \u00a0She contacted the Alamance County Sheriff\u2019s Department and brought several print-outs of the comments to Sheriff\u2019s Detective David Sykes.
\nOn February 9th<\/sup>, 2011 one of Dillon\u2019s classmates, Robert Bishop, was arrested and charged with a violation of N.C. Gen. Stat. \u00a7 14-458.1<\/a>, North Carolina\u2019s \u201cCyber Bullying Law\u201d.\u00a0 At trial, the State introduced screen shots of three Facebook posts that the defendant had commented on.\u00a0 The posts contained all the hallmarks of the high school bully; on a screenshot of a text message sent by Dillon, the defendant and others had commented that Dillon was \u201cexcessively homoerotic\u201d and called those who came to his defense \u201cequally pathetic.\u201d A second Facebook post introduced by the State contained an altered photograph of Dillon and his dog, and was accompanied by several comments insinuating that Dillon engaged in bestiality.\u00a0 Finally, in a separate Facebook Post, Dillon\u2019s classmates expressed regret that they had not been able to \u201cslap him down\u201d before the Christmas break. Bishop \u201ctagged\u201d Dillon in the image, presumably to ensure that Facebook would notify Dillon that image had been posted and he was being ridiculed.
\nRobert Bishop received a suspended 30 day sentence accompanied by 48 months of supervised probation.\u00a0 Mr. Bishop, now 18, appealed his sentence, arguing that N.C. Gen. Stat. \u00a7 14-458.1<\/a> is an overbroad criminalization of speech.\u00a0\u00a0 In essence, the Overbreadth Doctrine<\/a> holds that certain statutes must be struck down because of their ham-handed construction. While an \u201coverbroad\u201d statute may be properly applied to the defendant\u2019s speech, it is so broadly construed that it will prevent others from engaging in speech that is in fact constitutionally protected.
\nIn assessing whether a particular law should be deemed unconstitutionally overbroad, a court will look to whether the law advances a \u201csubstantial governmental interest.\u201d \u00a0 Laws not found to advance such interests will be struck down on the theory that they will chill protected speech<\/a>. Here, the North Carolina Court of Appeals found that the protection of children from the \u201cpsychological and emotional harm of cyber-bullying\u201d constituted a substantial government interest.
\nNot all state cyber bullying laws have received such judicial accommodation.\u00a0 In 2014, the New York Court of appeals struck down an Albany County cyber bullying law<\/a> on the grounds that the statute, which aimed to punish those who use \u201celectronic or mechanical means\u201d to \u201cattempt to inflict significant emotional harm on another person\u201d was over-inclusive and could be construed to apply to adults or even corporate entities.
\nN.C. Gen. Stat. \u00a7 14-458.1<\/a> has not suffered a similar fate, largely because the scope of the statute is more tightly constrained.\u00a0 The statue requires that the defendant have a specific intent, and that the communications fit a prescribed range of content \u2013 the \u201cdisclosure of private, personal or sexual information pertaining to a minor. \u201c While legislators are often known for their inarticulate statutory construction<\/a>, it appears that the North Carolina General Assembly has done an admirable job of producing a statute devoid of the usual opacity.
\nStatutory accuracy aside, critics have argued that North Carolina\u2019s Cyberbullying law is not only unconstitutional, but that it is unsound public policy<\/a> and the North Carolina Supreme Court will soon weigh in on the issue. While the Court is not required to accept an appeal from a unanimous decision by the Court of Appeals, the Supreme Court granted discretionary review on August 20th<\/sup>. \u00a0Although North Carolina\u2019s Cyber bullying law has passed it\u2019s first adjudicatory test, the constitutional validity of the law is, as yet, uncertain.
\nWhile it would be understandable to see recent cyber bullying laws as a prime example of legislation by anecdote<\/a>, the phenomenon is in fact widespread<\/a>.<\/p>\n

Cyber bullying is a concern that begs societal redress. The question, however, is whether the issue is within the ambit of our legal, educational or family systems.<\/p><\/blockquote>\n

Within the next couple months, the North Carolina Supreme Court will have provided its answer.
\nFor additional discussion of cyber-bullying statues and attendant free speech concerns, please see \u201cShould Anti-Cyberbullying Laws Be Created?<\/a>\u201d and \u201cThe Best Intentions: A Constitutional Analysis of North Carolina\u2019s Anti-Cyberbullying Statue.<\/a>\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

Late one night, Alamance county mother Angela Kelly entered her son\u2019s room and found him distraught.\u00a0 Her teenage son Dillon was crying, beating himself in the head, and throwing things in his room.\u00a0 As punishment for staying up late, Angela confiscated Dillon\u2019s phone \u2013 and discovered that his classmates had been using Facebook to publicly …<\/a><\/p>\n","protected":false},"author":1,"featured_media":3618,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/3617"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=3617"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/3617\/revisions"}],"predecessor-version":[{"id":7303,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/3617\/revisions\/7303"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media\/3618"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=3617"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=3617"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=3617"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}