North Carolina “torments” the First Amendment
In what may be the first piece of legislation of its kind in the country, North Carolina passed a law in July, 2012* criminalizing cyberbullying by a student of any school employee. Titled the “School Violence Prevention Act,” the law prohibits online bullying of teachers by students including those who have been suspended or expelled. Violation of the law is a class two misdemeanor which carries a penalty of up to sixty days in jail, a $1,000 fine and probation. Laws that criminalize student-on-student cyberbullying exist in approximately a dozen states.
The law, in part, reads (emphasis added in bold by AsktheJudge):
§ 14‑458.2. Cyber‑bullying of school employee by student; penalty.
(b) Except as otherwise made unlawful by this Article, it shall be unlawful for any student to use a computer or computer network to do any of the following:
(1) With the intent to intimidate or torment a school employee, do any of the following:
a. Build a fake profile or Web site.
b. Post or encourage others to post on the Internet private, personal, or sexual information pertaining to a school employee.
c. Post a real or doctored image of the school employee on the Internet.
d. Access, alter, or erase any computer network, computer data, computer program, or computer software, including breaking into a password‑protected account or stealing or otherwise accessing passwords.
e. Use a computer system for repeated, continuing, or sustained electronic communications, including electronic mail or other transmissions, to a school employee.
(2) Make any statement, whether true or false, intending to immediately provoke, and that is likely to provoke, any third party to stalk or harass a school employee.
(3) Copy and disseminate, or cause to be made, an unauthorized copy of any data pertaining to a school employee for the purpose of intimidating or tormenting that school employee (in any form, including, but not limited to, any printed or electronic form of computer data, computer programs, or computer software residing in, communicated by, or produced by a computer or computer network).
(4) Sign up a school employee for a pornographic Internet site with the intent to intimidate or torment the employee.
(5) Without authorization of the school employee, sign up a school employee for electronic mailing lists or to receive junk electronic messages and instant messages, with the intent to intimidate or torment the school employee.
(c) Any student who violates this section is guilty of cyber‑bullying a school employee, which offense is punishable as a Class 2 misdemeanor.
The intent of the law is to protect teachers from students who mock them in cyberspace and damage their reputations. This is an admirable goal. However, the lack of clarity in this particular law will undoubtedly lead to legal challenges and drawn-out litigation. Until that happens, it may be a good thing for teachers and administrators to be able to tell their students that cyberbullying is against the law in North Carolina and that there are serious consequences for violators. That should keep most students in line and respectful. But the small percent of students who either don’t know about this law or think their digital messages aren’t covered by the law will proceed to post their content. Then, when disciplined by the school or prosecuted by the state, the statute may fail to pass the constitutional test when confronted by the First Amendment’s free speech protections.
The key words in this law are “With the intent to intimidate or torment . . .” in line (b)(1). Neither “intimidate” or “torment” are defined. What one person may consider to be intimidation and torment may not reach that level by another. Thus, a judge or jury is left with assessing the facts of the case and determining whether they measure up to whatever one considers to be intimidation or torment. North Carolina has other criminal laws that encompass threats, harassment, intimidation and stalking. The legality of this additional law remains to be seen. In the meantime, students are put on notice that thoughtless posts that are intended to impose “extreme pain or anguish of body or mind”** on a school employee will be dealt with in the criminal or juvenile justice system.
One mitigating provision authorizes the court to treat the offender through a diversion program. If successfully completed, the juvenile’s record is cleared.
In September, 2012, a bill was introduced in the Michigan legislature making it a misdemeanor to cyberbully. If passed, the bill calls for penalties including 93 days in jail, a $1,000 fine, a mental health evaluation and counseling. (HB 5935).
Other states have passed non-criminal laws addressing bullying and cyberbullying at school. See the work of the Cyberbullying Research Center by Professors Justin Patchin and Sameer Hinduja. School discipline has been imposed and challenged in federal court on the basis of the First Amendment. The courts across the country have split – some upholding the school’s discipline, others supporting the free speech rights of students. As of yet, the U.S. Supreme Court has not addressed the issue of student internet free speech. Not it has another opportunity to do so since student speech that “torments” a teacher is a crime.
In September, 2012, the South Australian Education Department reported that teachers are targeted by cyberbullies including parents of students. A survey of over 1200 teachers indicated that 12% of those who participated in the study reported being targeted by bullies. Comments considered threatening, harassing and intimidating were noted but few reported to the police. A memo went out to all educators regarding the subject and encouraging action through appropriate channels.
*North Carolina Statute 14-458.2 (2012) effective Dec. 1, 2012.
**torment – Webster’s Collegiate Dictionary (Eleventh Edition, 2011)