State v. Bishop

368 N.C. 869

787 S.E.2d 814

STATE of North Carolina

v.Robert BISHOP

No. 223PA15

Supreme Court of North Carolina.

Filed June 10, 2016

Roy Cooper, Attorney General, by Kimberly N. Callahan, Assistant Attorney General, for the State.

Glenn Gerding, Appellate Defender, by James R. Grant, Assistant Appellate Defender, for defendant-appellant.

Ellis & Winters LLP, Raleigh, by C. Scott Meyers ; and Eugene Volokh, pro hac vice, UCLA School of Law, for Electronic Frontier Foundation, amicus curiae.

HUDSON, Justice.

On 9 February 2012, defendant Robert Bishop was arrested and charged with one count of cyberbullying under North Carolina's cyberbullying statute, N.C.G.S. § 14–458.1. Under that statute, it is "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." N.C.G.S. § 14–458.1(a)(1)(d) (2015). On 5 February 2014, defendant was convicted on that sole charge by a jury in the Superior Court in Alamance County. On appeal, the Court of Appeals concluded that the cyberbullying statute "prohibits conduct, not speech"; that any burden on speech is "merely incidental"; and that this "incidental" burden "is no greater than necessary" to further the State's "substantial" interest in protecting children from the harmful effects of bullying and harassment. State v. Bishop , ––– N.C.App. ––––, ––––, 774 S.E.2d 337, 344–45, 349 (2015). We now conclude that N.C.G.S. § 14–458.1(a)(1)(d) restricts speech, not merely nonexpressive conduct; that this restriction is content based, not content neutral; and that the cyberbullying statute is not narrowly tailored to the State's asserted interest in protecting children from the harms of online bullying. Accordingly, we reverse the decision of the Court of Appeals and hold that the statute violates the First Amendment as applied to the states through the Fourteenth Amendment.

I. FACTS AND PROCEDURAL BACKGROUND

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."

At least two other Facebook postings with similar tone and attitude followed, all involving Price, defendant, and other commenters.

Many of the messages that ensued included comments and accusations about each other's sexual proclivities, along with name-calling and insults.

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.

On 9 February 2012, defendant was arrested and charged with one count of cyberbullying in violation of N.C.G.S. § 14–458.1. Some, but not all, of the other students involved in these discussions were also arrested or charged under the cyberbullying statute.¹

Defendant was tried and convicted in district court, after which he appealed to the Superior Court in Alamance County for a trial de novo. In the superior court, defendant filed a pretrial motion to dismiss, contending that N.C.G.S. § 14–458.1(a)(1)(d) is unconstitutional under the First and Fourteenth Amendments. After hearing the matter on 24 April, the trial court denied defendant's motion in an order entered on 17 May 2013. Defendant's case came on for trial at the 3 February 2014 criminal session of the Superior Court in Alamance County, and on 5 February, defendant was convicted by a jury of one count of cyberbullying. Defendant appealed to the Court of Appeals.

At the Court of Appeals, defendant argued, inter alia , that the cyberbullying statute, specifically N.C.G.S. § 14–458.1(a)(1)(d), restricts speech protected under the First Amendment; that this restriction is content based; and that it sweeps too broadly to satisfy the exacting demands of strict scrutiny. In a unanimous opinion, the Court of Appeals rejected those arguments. Instead, applying de novo review, that court concluded that N.C.G.S. § 14–458.1(a)(1)(d) 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. Bishop , ––– N.C. App. at ––––, 774 S.E.2d at 343. The Court of Appeals also concluded that "[t]o the extent the Cyber-bullying Statute touches upon or regulates some aspects of some speech, the burden on speech and expression is merely incidental." Id. at ––––, 774 S.E.2d at 344 (citing Hest Techs., Inc. v. State ex rel. Perdue , 366 N.C. 289, 300, 749 S.E.2d 429, 437 (2012), cert. denied , ––– U.S. ––––, 134 S.Ct. 99, 187 L.Ed.2d 34 (2013) ). And regarding that "incidental" burden, the Court of Appeals concluded that it "is no greater than necessary" because the statute "only prohibits disclosure of ‘private, personal, or sexual information pertaining to [a] minor’ on the Internet with the specific intent to intimidate or torment a minor" and "does not prohibit any other speech or communication on the Internet outside of this context." Id. at ––––, 774 S.E.2d at 344–45 (quoting N.C.G.S. § 14–458.1(a)(1)(d) ). Partly on this basis, and after rejecting several other arguments defendant raised before that court, the Court of Appeals ultimately found no error in defendant's conviction under the cyberbullying statute. See id. at ––––, 774 S.E.2d at 349. On 20 August 2015, we allowed defendant's petition for discretionary review.

II. ANALYSIS

Here, defendant again contends that the cyberbullying statute, specifically N.C.G.S. § 14–458.1(a)(1)(d), is unconstitutional under the First Amendment, as incorporated and applied to the states through the Fourteenth Amendment, because it criminalizes protected speech based on its content, and because, in doing so, the law extends well beyond the government's asserted interest in protecting children from the harms caused by online bullying. The challenged provision 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."

N.C.G.S. § 14–458.1(a)(1)(d). For the reasons that follow, we hold that section 14–458.1 restricts speech, and not just nonexpressive conduct; that the restriction created is content based, not content neutral; and that the statute's scope is not sufficiently narrowly tailored to serve the State's asserted interest in protecting children from the harms resulting from online bullying. Accordingly, we conclude that N.C.G.S. § 14–458.1(a)(1)(d) violates the First Amendment. We therefore reverse the decision of the Court of Appeals.

A. The Statute Burdens Speech, Not Just Nonexpressive Conduct.

We must first determine whether N.C.G.S. § 14–458.1(a)(1)(d) restricts protected speech or expressive conduct, or whether the statute affects only nonexpressive conduct. Answering this question determines whether the First Amendment is implicated. See, e.g. , Texas v. Johnson , 491 U.S. 397, 404, 109 S.Ct. 2533, 2539, 105 L.Ed.2d 342 (1989) (stating that conduct acquires First Amendment protection only when it "possesses sufficient communicative elements"). Yet this inquiry is not always easy or straightforward. On one hand, the Supreme Court of the United States has recognized that expressive conduct falls within the ambit of the First Amendment's protections—at least when that conduct is "inherently" expressive. Rumsfeld v. Forum for Acad. & Inst'l Rights, Inc. , 547 U.S. 47, 66, 126 S.Ct. 1297, 1310, 164 L.Ed.2d 156 (2006) ("Instead, we have extended First Amendment protection only to conduct that is inherently expressive[, such as flag burning]." (citing Johnson , 491 U.S. at 406, 109 S.Ct. at 2540 )). On the other, that Court has also long held that otherwise proscribable criminal conduct does not become protected by the First Amendment simply because the conduct happens to involve the written or spoken word. See, e.g. , United States v. Alvarez , ––– U.S. ––––, 132 S.Ct. 2537, 2544, 183 L.Ed.2d 574 (2012) (plurality opinion) (noting that "speech integral to criminal conduct" remains a category of historically unprotected speech); accord Giboney v. Empire Storage & Ice Co. , 336 U.S. 490, 502, 69 S.Ct. 684, 691, 93 L.Ed. 834 (1949) ("[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed." (citations omitted)); see also R.A.V. v. City of St. Paul , 505 U.S. 377, 389, 112 S.Ct. 2538, 2546, 120 L.Ed.2d 305 (1992) ("[W]ords can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the Nation's defense secrets) ...."); State v. Camp , 59 N.C.App. 38, 42–43, 295 S.E.2d 766, 768–69 (opining that a statute barring use of a telephone to harass another...