N.C. court strikes down ban on posting 'personal or sexual information' about minors 'with the intent to torment'

|The Volokh Conspiracy |

A North Carolina statute makes it a crime—"cyber-bullying"—to, among other things, "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 a minor." "Torment" isn't defined in the statute, but the state argued that it means "to annoy, pester, or harass."

Yesterday, the North Carolina Supreme Court unanimously held that the statute violates the First Amendment (reversing a contrary North Carolina Court of Appeals decision).

1. The court began by concluding that the law restricts speech, and not just (as the government argued) "conduct." That is surely correct: Posting material online is as much "speech" as distributing it in leaflets, or writing it in a newspaper. (Some might argue that this should be seen as "press" rather than "speech," but modern First Amendment law basically treats the two interchangeably.) Though the lower court concluded that the law "regulates conduct, not speech, and specifically that the statute 'punishes the act of posting or encouraging another to post on the Internet with the intent to intimidate or torment' a minor," the state supreme court disagreed:

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.

2. The court then held that the law is a content-based restriction, and thus subject to the most demanding level of First Amendment scrutiny. That too is surely correct—the law punishes speech because of what the speech communicates (even though the lower court had held the contrary). "The statute criminalizes some messages but not others, and makes it impossible to determine whether the accused has committed a crime without examining the content of his communication."

3. And the court concluded that the law couldn't pass this demanding scrutiny:

The State itself contends that we should define "torment" broadly to reference conduct intended "to annoy, pester, or harass." The protection of minors' mental well-being may be a compelling governmental interest, but it is hardly clear that teenagers require protection via the criminal law from online annoyance . . . .

The State would then define "personal" as "of or relating to a particular person," or "concerning a particular person and his or her private business, interests, or activities." . . . 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. . . .

Reading the motive and subject matter requirements in tandem here does not sufficiently narrow the extensive reach of the cyberbullying statute. . . . [The statute] 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.

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." . . . The statute prohibits a wide range of online speech—whether on subjects of merely puerile interest or on matters of public importance. . . .

"It is rare that a regulation restricting speech because of its content will ever be permissible." Certainly, [this provision] of the cyberbullying statute is not."

That seems quite right to me: As my student Gianfranco De Girolamo and I argued in a friend-of-the-court brief in this case on behalf of the Electronic Frontier Foundation,

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." 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.

Many thanks, by the way, to local counsel C. Scott Meyers of Ellis & Winters LLP, for all his help with the brief.