State v. Bishop. According to a North Carolina Supreme Court opinion handed down last week, the state’s anti-cyberbullying statute is unconstitutional under the First Amendment.

N.C.G.S. § 14-458.1 makes it “unlawful for any person to use a computer or computer network to . . . [p]ost or encourage others to post on the Internet private, personal, or sexual information pertaining to a minor” “[w]ith the intent to intimidate or torment a minor.”

The threshold issue before the Court was whether the statute criminalizes conduct or speech. If you are a follower of First Amendment cases, this is a familiar issue. If the statute criminalizes conduct, not speech, the degree of scrutiny the statute faces is much lower.

The opinion concludes that the statute at issue prohibits speech:

Against this blurred doctrinal landscape, the line is not always bright between what is protected by the First Amendment and what is not. Here, however, we are satisfied that N.C.G.S. § 14-458.1(a)(1)(d) applies to speech and not solely, or even predominantly, to nonexpressive conduct.

. . .

As the United States Supreme Court has made clear, the protections of the First Amendment extend in full not just to the Internet, but to all new media and forms of communication that progress might make available. Accordingly, we conclude that N.C.G.S. § 14-458.1(a)(1)(d) of North Carolina’s cyberbullying statute implicates the First Amendment because that provision restricts speech and not merely conduct.

[Citations omitted].

Then, relying on Reed v. Town of Gilbert, ___ U.S. ___, ___, 135 S. Ct. 2218, 2226 (2015), the opinion further concludes that the statute is content-based. The plain language of the statute regulates certain speech based on particular subject matter. Because the statute criminalizes some messages but not others, it is content based.

Statutes that regulate speech based on content are subject to strict scrutiny – they must be narrowly tailored  to serve a compelling government interest.

There was no dispute that protecting children from online bullying is a compelling government interest. To show that the statute is narrowly tailored to that interest, the state has to show that the statute is the least restrictive means of addressing the issue.

The opinion analyzes the statute and decides that, for a number of reasons, the state has not met this burden. First, the statute contains no injury or awareness requirement. Second, the intent requirement – which prohibits the intent to “torment” – is too broad, according to the Court. Protection of minor’ mental well-being is a compelling interest, but protecting them from annoyance is less clear. Third, the undefined terms of “private,” “personal” and “sexual” are vague enough that a prohibition on “personal” information would “essentially criminalize posting any information about any specific minor if done with the requisite intent.” [Emphasis in opinon]. Finally, the mens rea requirement brings no clarity to the statute.

In sum, however laudable the State’s interest in protecting minors from the dangers of online bullying may be, North Carolina’s cyberbullying statute “create[s] a criminal prohibition of alarming breadth.” Even under the State’s interpretation of N.C.G.S. § 14-458.1, the statute prohibits a wide range of online speech—whether on subjects of merely puerile interest or on matters of public importance—and all with no requirement that anyone suffer any actual injury. In general, “[i]t is rare that a regulation restricting speech because of its content will ever be permissible.” Certainly, N.C.G.S. § 14-458.1(a)(1)(d) of the cyberbullying statute is not.

[Citations omitted]