Bullying has been around forever, but the internet and social media can raise it to new levels of torment.
Did the authors of the First Amendment mean to protect it?
The N.C. Supreme Court thinks so. In a unanimous ruling last week, it found that the state’s cyber-bullying law “violates the First Amendment’s guarantee of the freedom of speech.”
The decision — troubling in some respects — reverses lower-court decisions and throws out the 2014 conviction of Robert Bishop, a former student at Southern Alamance High School.
Bishop was one of several students charged with harassing classmate Dillion Price with comments and photos posted on Facebook. State law, enacted in 2009, made it a felony 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.”
Bishop was convicted and given a suspended sentence. His conviction was upheld on appeal when the N.C. Court of Appeals rejected his First Amendment argument, concluding that the law prohibited conduct rather than speech.
Not so, said the Supreme Court in an opinion penned by Justice Robin Hudson. While telephone harassment is an example of conduct not protected by the First Amendment, she wrote, “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.”
Modern forms of communication don’t change the principle that speech is thus protected, the court added.
In this case, it was the content of the speech, not his action of posting messages, that resulted in Bishop’s conviction. Although the state has a compelling interest in protecting minors from harm, the cyber-bullying law is not narrowly tailored to address that interest and isn’t the least-restrictive means the state could use to achieve its purpose, the court said. It doesn’t even require that any real harm must be done before criminal penalties can be assessed.
The court’s protection of free speech is important. Its ruling serves as a guardian of individual rights against the power of government. In this case, one young person’s indiscretions could burden him with a criminal record for offenses that, in times past, would have been dismissed as simple bad behavior.
Still, cyber-bullying can have serious impacts on young, vulnerable victims. In rare cases, it’s driven children to suicide.
Unlike old-fashioned bullying, cyber-bullying is conducted in private, even anonymously. If anything, it’s more cowardly and more capable of inflicting pain because victims can feel isolated and beset upon by unknown tormentors.
The legislature had good intentions when it tried to create a law to protect minors from this kind of harassment. It should try again to craft a law that provides at least some protection without abridging freedom of speech. Last week’s ruling wasn’t necessarily the last word.
