No matter how many times agenda-driven lawprofs cried that the First Amendment didn’t protect speech that made people sad, and mean curmudgeon lawyers replied bullshit, there was little question that eventually, the vague laws enacted to protect feelings from harsh words would reach the courts and their constitutionality would be determined. That happened in North Carolina, where the state’s cyberbullying law was considered in State v. Bishop.
As was the case in New York, the North Carolina Supreme Court held that the law failed.
As one would expect, the facts are nasty and reflect the sort of hateful conduct that makes one wonder what is wrong with people.
During the 2011-2012 school year, defendant and Dillion Price were students at Southern Alamance High School. Starting in the fall of 2011, some of Price’s classmates began to post negative pictures and comments about Price on Facebook, including on Price’s own Facebook page. In September 2011, a male classmate posted on Facebook a screenshot of a sexually themed text message Price had inadvertently sent him. Below that post, several individuals commented, including Price and defendant. Price accused the posting student of altering or falsifying the screenshot and threatened to fight him over the matter; defendant commented that the text was “excessively homoerotic” and accused others of being “defensive” and “pathetic for taking the [I]nternet so seriously.”
What used to happen on the playground now plays out on Facebook, which means everybody gets to see it and pile on. It’s not that kids are any less cruel today, but that their cruelty travels farther and faster than ever before. Yay, internet.
Late one night in December 2011, Price’s mother found him very upset in his room, crying, throwing things, and hitting himself in the head. She saw on his cellphone some of the comments and pictures that his classmates had posted. Fearing for his well-being and concerned that Price might harm himself, Price’s mother contacted the police, who used undercover Facebook accounts to view the Facebook postings and take screenshots of postings relevant to the investigation.
There is no parent who can’t feel Price’s mother’s pain, to see her son so distraught as to be hitting himself in the head. This is noted not to Gertrude, but to emphasize a point. That people may have the right to be cruel does not mean that being so is an acceptable choice. And flowing downhill, every parent should pay attention to what his kid is doing online, whether on the giving or receiving end of speech. The government may have no authority to impair free speech, but a parent does, even if it means you have to take the screen away from your perfect lil darling. Want to eliminate a lot of problems, dad? Do your frigging job as parent.
And the North Carolina Supreme Court did its job as protector of our constitutional rights.
The description of the proscribed subject matter is similarly expansive. The statute criminalizes posting online “private, personal, or sexual information pertaining to a minor.” Id. Again, these terms are not defined by the statute. The State has suggested that we interpret this language by defining “private” to mean “[s]ecluded from the sight, presence, or intrusion of others,” or “[o]f or confined to the individual.”
The State would then define “personal” as “[o]f or relating to a particular person,” or “[c]oncerning a particular person and his or her private business, interests, or activities.” And it would define “sexual” as “[o]f, relating to, involving, or characteristic of sex, sexuality, the sexes, or the sex organs and their functions,” or “[i]mplying or symbolizing erotic desires or activity.” While all of these definitions are broad, the State’s proposed definition of “personal” as “[o]f or relating to a particular person” is especially sweeping. Were we to adopt the State’s position, it could be unlawful to post on the Internet any information “relating to a particular [minor].” Such an interpretation would essentially criminalize posting any information about any specific minor if done with the requisite intent.
Notably, this isn’t a general criminal law precluding bullying of anyone and everyone, but a law that criminalized online posting of “private, personal, or sexual information pertaining to a minor.” While many are all hinky about poor Hulk Hogan’s privacy and sexual information, this isn’t about clowns who pretend to be wrestlers and go on air to talk about their sexual prowess and conquests, but minors. Kids. Children. Surely, there is a far superior concern for the welfare of children than of clowns in bandanas?
Of course there is a legitimate state concern for the protection of kids, but that doesn’t mean that the vagaries of sweeping speech prohibitions get a free pass because it feels wrong, terrible, to see children hurt.
But can’t a mens rea requirement solve that problem? After all, this is where law prof Danielle Citron differs from Mary Anne Franks on the constitutionality of their beloved anti-revenge porn laws, where the former asserts that a mens rea component is necessary, while the latter shrieks that it would be a loophole that would allow evil people to get away.
Finally, we note that, while adding a mens rea requirement can sometimes limit the scope of a criminal statute, reading the motive and subject matter requirements in tandem here does not sufficiently narrow the extensive reach of the cyberbullying statute. Even under the State’s proposed construction of the statutory terms, N.C.G.S. § 14-458.1(a)(1)(d) could criminalize behavior that a robust contemporary society must tolerate because of the First Amendment, even if we do not approve of the behavior. Civility, whose definition is constantly changing, is a laudable goal but one not readily attained or enforced through criminal laws. (Emphasis added.)
And that, to the sad tears of disreputable academics, is the answer. The question isn’t whether bad things happen, or whether anyone gets hurt by the cruel conduct of others. They do. The question is whether, under our Constitution, criminal laws can be crafted that can address the pain without violating the Constitution.
Perhaps such a law can be crafted, but thus far, no one has been able to come up with one. All the sad stories told in support of criminalization of speech don’t change the reality that the law cannot always cure every bad thing people do. This isn’t because speech can’t hurt or isn’t bad, but because hurtful speech is the price of the First Amendment.
H/T Jim Tyre