Can states criminalize posting 'personal or sexual information' about minors 'with the intent to torment'?

|The Volokh Conspiracy |

On Wednesday, Feb. 17, the North Carolina Supreme Court will hear State v. Bishop, a facial challenge to North Carolina's "cyberbullying" statute, which bans, among other things, posting "private, personal, or sexual information pertaining to a minor" with "the intent to intimidate or torment a minor." You can read the North Carolina Court of Appeals decision, which the state supreme court will be reviewing, here; you can also see more there about the unpleasant facts of this particular case, but the challenge claims that the statute is facially over-broad because it bars a substantial amount of constitutionally protected speech—the facts of this case are not directly relevant to such a facial challenge.

My student, Gianfranco De Girolamo, and I wrote a friend-of-the-court brief in this case on behalf of the Electronic Frontier Foundation, with the help of local counsel C. Scott Meyers of Ellis & Winters LLP, and I thought I'd pass it along here. Part of the brief discusses why the North Carolina Court of Appeals erred in calling the law content-neutral—the law singles out particular factual information for prohibition, and that's enough to make the law content-based, even if not viewpoint-based. You can see more about that in Part I of the brief. But here I wanted to excerpt the more interesting part, which explains why bans on publishing such information, even about minors, violate the First Amendment:

A. Speech About People Is Generally Constitutionally Protected, Even When Speech To Them May Be Restricted

The Court of Appeals erred in analogizing § 14-458.1(a)(1)(d) to telephone harassment laws. Courts have upheld telephone harassment laws, even when they are content-based, on the grounds that speech said to a person who obviously does not want to hear it lacks constitutional value. "[N]o one has a right to press even 'good' ideas on an unwilling recipient." Rowan v. U.S. Post Office Dep't, 397 U.S. 728, 738 (1970) (upholding a law allowing a person to forbid further unwanted mailings).

But § 14-458.1(a)(1)(d) bans speech about a person, including speech said to willing listeners and readers. See Eugene Volokh, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and "Cyberstalking," 107 Nw. U. L. Rev. 731, 740-51 (2013). Such speech has much greater First Amendment value than speech directed to only a single unwilling listener. Restrictions on such public speech therefore cannot be judged under the standards applied to telephone harassment laws.

As the Supreme Court held in Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971)—while upholding people's rights to publicly criticize a small businessman—there is a difference between "attempting to stop the flow of information into [one's] own household" and trying to block the flow of information about oneself "to the public." Id. at 420. Restrictions on unwanted speech to a household are constitutional. Restrictions on unwanted speech about a person are not (setting aside the existing narrow First Amendment exceptions, such as for some false defamatory statements).

B. Section 14-458.1(a)(1)(d) Is Unconstitutionally Overbroad Because It Suppresses a Great Deal of Constitutionally Protected Speech

Section 14-458.1(a)(1)(d) suppresses a broad range of constitutionally protected speech, including everyday speech that people must remain free to engage in. The breadth of § 14-458.1(a)(1)(d) keeps it from being narrowly tailored to any compelling government interest, the demanding strict scrutiny requirement applicable to content-based speech restrictions. Reed, 135 S. Ct. at 2226. And because § 14-458.1(a)(1)(d) is a content-based restriction that restricts a broad range of constitutionally protected speech, it is unconstitutional on its face. See United States v. Stevens, 559 U.S. 460, 481-82 (2010).

In banning speech about minors, § 14-458.1(a)(1)(d) bans a great deal of protected speech, mostly speech by those other minors' acquaintances, ex-girlfriends, and ex-boyfriends. Say, for instance, that a 17-year-old girl breaks up with her 17-year-old boyfriend because he cheated on her, and she posts about this on her Facebook page. That would constitute posting "private, personal, or sexual information pertaining to a minor"—the fact that the ex-boyfriend had sex with someone else.

And such speech might well be found to satisfy the "intent to … torment" requirement. The term "torment" is not defined in the statute, but the Court of Appeals has defined torment in the closely related stalking statute, N.C. Gen. Stat. § 14-277.3A, as "annoy, pester, or harass." Tyll v. Willets, 748 S.E.2d 329, 332 n.2 (N.C. Ct. App. 2013); State v. Watson, 169 N.C. App. 331, 337, 610 S.E.2d 472, 477 (2005). A prosecutor or judge might thus easily conclude that the girl posted her Facebook message with "the intent to … torment" the ex-boyfriend (by making him feel annoyed or publicly embarrassed, or by persuading her friends to stop being friends with him). Talking to her friends online about her life—explaining why she left a relationship and why she is heartbroken, and warning them away from someone she found untrustworthy—would thus potentially be a crime.

Section 14-458.1(a)(1)(d) could also be applied to speech on matters of public concern, such as discussions of an accurate statement that a teacher was having a sexual or romantic relationship with an underage student, or accurate allegations that an underage classmate had sexually assaulted someone. Likewise, speech about a student government candidate's repugnant political beliefs (e.g., support for racist groups) could potentially qualify as posting "personal … information pertaining to a minor," and thus be criminal.

In all these cases, a prosecutor or a judge could conclude that the speaker was intending to "torment," in the sense of annoying or embarrassing, the subject of the speech. As a result, speakers may well be reluctant to post such constitutionally protected speech, for fear of criminal liability. No government interest can justify a law that so broadly restricts people's speech about their lives and the lives of people in their social circle.

C. Section 14-458.1(a)(1)(d)'s Overbreadth Is Exacerbated by Its Focus on the Speaker's Motivation

Section 14-458.1(a)(1)(d) punishes a wide range of speech that may be said to be in part motivated by an intent to annoy and thus to "torment." But it also threatens to chill speech even by people who are confident that their intentions are pure, and in no way include any intent to annoy.

As the Court noted in FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007), a case dealing with a statute that similarly punished speech based on the speaker's supposed intentions, "[n]o reasonable speaker would choose to [engage in speech potentially covered by the statute] if its only defense to a criminal prosecution would be that its motives were pure. An intent-based standard 'blankets with uncertainty whatever may be said,' and 'offers no security for free discussion.'" Id. at 468 (Roberts, C.J., lead op.); id. at 492 (Scalia, J., concurring in part and in the judgment) (similarly concluding that "test[s] that [are] tied to … a court's perception[] of . . . intent" are "ineffective to vindicate the fundamental First Amendment rights" of those against whom the intent-based law is applied).

Like the law in Wisconsin Right to Life, § 14-458.1(a)(1)(d) will often chill reasonable speakers from publishing accurate information even with good intentions. Faced with the risk of criminal punishment for publishing accurate information with the "intent to torment," people would often not speak for fear that their motives would be found (even wrongly) to be impure. And that is especially so because the intent to annoy often goes hand in hand with the intent to criticize or condemn someone who you think has wronged you, or has otherwise done something bad. Judges and prosecutors might thus assume that speakers who are complaining about people who mistreated them are acting out of a desire to annoy, even if the speakers' true goals are simply to inform friends about how the speakers are feeling. And speakers, knowing this difficulty in untangling motives, might keep silent for fear of being misjudged and thus facing criminal prosecution.

Moreover, human judgment about others' unstated motives often subconsciously turns on personal feelings about the people involved. When someone harshly criticizes someone we like, it is human nature to infer that the critic is deliberately trying to torment. Speakers know this, and will often be deterred by the reasonable concern that prosecutors or judges might assume the worst about them. Say the cheating ex-boyfriend is a popular high school football star from a politically well-connected family in a small town, and the ex-girlfriend who publicly berates him is not particularly well-liked (perhaps because she is from a lower-class background, or because of her own sexual history, or even because of her religion). She might well worry that a prosecutor and the judge will assume that she must have had the "intent … to torment"—even if they would assume better motives if the same statements were made by a girl who belonged to their own social circle.

This is why, in cases such as Wisconsin Right to Life, the Supreme Court refused to uphold laws that punished accurate statements (or expressions of opinion) that were said with a supposedly improper purpose. See supra, p. 10. And just last year, Texas's highest criminal court similarly rejected the view that speech could lose First Amendment protection because of its supposedly malign intent. Ex parte Thompson, 442 S.W.3d 325, 338 (Tex. Ct. Crim. App. 2014).

In that case, a Texas statute banned photographing people without their consent in public places—even when the photograph only captured what was normally visible to the public—when the photograph was taken with the intent to arouse or gratify sexual desire. The Texas court held that the statute violated the First Amendment, because bad intentions (so long as they are not intentions "to do something that … would be unlawful and outside First Amendment protection, such as the intent to threaten or intimidate") "cannot remove from the ambit of the First Amendment conduct that is otherwise protected expression." Id. Likewise, here, otherwise protected speech about one's life, one's exes, and one's acquaintances cannot lose First Amendment protection simply because a prosecutor and a judge view it as intended to annoy and thus to "torment."

The Supreme Court has recognized that whether a speech restriction is "narrowly tailored" to a compelling interest must be evaluated by considering not just what speech the restriction is meant to cover, but also by considering the "threat of censoring speech that, in fact, falls outside the statute's scope." Reno v. ACLU, 521 U.S. at 867, 879. Such a chilling effect tends to "silence[] some speakers whose messages would be entitled to constitutional protection," which "provides further reason for insisting that the statute not be overly broad." Id. And for the reasons given above, this statute is indeed too broad to be narrowly tailored to any compelling government interest.

Note that the brief didn't discuss any analogy with the "disclosure of private facts" tort (one branch of the "invasion of privacy" tort) because that analogy hasn't come up in the case—likely because North Carolina is one of the states that doesn't recognize the tort, in part because of free speech concerns.