"Cyber-bullying" and other forms of online harassment are a serious problem. But as we have explained in the past, it is a challenge to craft laws or policies that address the harms caused by online harassment without unduly restricting speech or invading people’s privacy. New York tried and failed. And North Carolina's anti-bullying statute also goes too far. The North Carolina statute is currently being challenged in court, and on Monday, EFF filed an amicus brief urging the North Carolina Supreme Court to throw out the incredibly overbroad law for violating the First Amendment.
The statute at issue in the case, State v. Bishop, makes it a crime for someone to use a computer to, “[w]ith the intent to intimidate or torment a minor[,] . . . [p]ost or encourage others to post on the Internet private, personal, or sexual information pertaining to a minor.” Under this broad language, it would be a crime for a high school student to post a message on Facebook stating that she recently broke up with her 15-year-old boyfriend because he cheated on her. Such a post would fall into the category of “private, personal, or sexual information” about the ex-boyfriend, a minor.
A student was charged and convicted with violating the statute. The student appealed his conviction, arguing that the statute violated the First Amendment of the U.S. Constitution. But the North Carolina Court of Appeals upheld the anti-bullying law, reasoning that the statute was a restriction on conduct, not speech, and that it was motivated by a content-neutral purpose. The student appealed this decision to the state’s supreme court.
As we explain in our amicus brief to the North Carolina Supreme Court, the court of appeal’s reasoning is plainly wrong.
First, the law clearly restricts speech—i.e., the publication of information on sites such as Twitter or Facebook—not just conduct. As we say in our brief, “Posting something online is an ‘act’ only in the sense that all speech involves acts: putting ink on paper, opening one’s mouth, carrying a sign.” If posting something on Twitter is not speech, then nothing is.
Second, the law restricts communication of particular kinds of facts or statements and is therefore a clear content-based restriction on speech. That this content-based law may have been motivated by a well-meaning purpose does not transform it into a content-neutral one—a fact that the U.S. Supreme Court recently made clear in Reed v. Town of Gilbert.
Courts are supposed to look very carefully at content-based regulations of speech. Such regulations are presumptively invalid, unless the government can prove that the regulation was narrowly tailored and necessary to achieve a compelling government interest. In other words, the government must satisfy strict scrutiny—the most stringent standard of judicial review in the United States. As the Supreme Court stated in Reed, “a law that is content-based on its face is subject to strict scrutiny regardless of the government’s benign motive[ or] content-neutral justification.”
The government should have applied the strict scrutiny standard to North Carolina’s content-based anti-bullying statute. And because the statute is dramatically overbroad and bans a wide range of protected speech, the government could never meet this standard. We hope the North Carolina Supreme Court agrees with us and throws out the court of appeals’ dangerous ruling.
Special thanks to UCLA law professor Eugene Volokh and his students in the Scott & Cyan Banister First Amendment Clinic and local counsel C. Scott Meyers of Ellis & Winters LLP for their work on this brief.