The Best Intentions: a Constitutional Analysis of North Carolina’s New Anti-cyberbullying Statute

• Jurisdiction: North Carolina,United States
• Citation: Vol. 11 No. 2009
• Publication year: 2009

Michael R. Gordon⁰

Cyberbullying, which is bullying using technology and/or the Internet, is a new phenomenon that has devastating effects as demonstrated by the suicide of Megan Meier as a result of cyberbullying over MySpace. To address the problem, the 2009 North Carolina General Assembly passed and the governor signed HB 1261, "Protect Our Kids/Cyber Bullying Misdemeanor," which criminalizes a large set of behaviors. This Recent Development analyzes the constitutionality based on existing First Amendment jurisprudence, including the Brandenburg v. Ohio imminent lawlessness test and the Watts v. United States true threat test. Most of the provisions of the new law fall short of these tests and are thus likely unconstitutional. As a result of vagueness as well as undefined and confusing terms in the law, it also may have a chilling effect on the exercise of free speech.

I. Introduction

In its 2009 session, the North Carolina General Assembly tackled the issue of cyberbullying. While the term "cyberbullying" has many definitions,¹ it is most commonly thought of as the internet analog to the bullying that takes place in schools and playgrounds.² However, because cyberbullying extends to locations outside the school, including anywhere that a child has access to a computer or cell phone, it has a much wider reach than old-fashioned bullying.³ To address the effects of cyberbullying, the North Carolina General Assembly passed an Act,⁴ House Bill 1261 ("HB 1261"), the short title of which is "Protect Our Kids/Cyber Bullying Misdemeanor," which criminalizes certain types of behavior that it classifies as cyberbullying.⁵ in the same legislative session, the General Assembly also passed the School Violence Prevention Act⁶ to cut down on traditional bullying in public schools.⁷ The passage of these two laws in the same legislative session demonstrates a clear intent on the part of the General Assembly to protect North Carolina's children.

This Recent Development will demonstrate that, unfortunately, HB 1261 has a severe danger of chilling free expression for minors and adults alike. If traditional First Amendment jurisprudence is applied to the internet and state law, HB 1261 is likely to be found an unconstitutional restriction on free speech. Part ii of this Recent Development defines the term "cyberbullying," explains why the issue is so problematic from a social and political aspect, shows the widespread effects of cyberbullying, and gives real-life examples of cyberbullying. Part iii describes HB 1261 as it was passed by the North Carolina General Assembly and some of the changes that were made throughout the legislative process. Finally, Part IV of this Recent Development attempts to answer the constitutional questions posed by the new law.

II. What Is Cyberbullying?

The American public became aware of cyberbullying due to an incident in Missouri involving an adult, Lori Drew, who pretended to be a male peer of a middle school student, Megan Meier.⁸ Drew's false identity⁹ pursued a relationship with Meier, then abruptly broke off the relationship, stating that "the world would be a better place without" her.¹⁰ That same day, Meier committed suicide.¹¹ The local community and the nation as a whole was angered that Drew's behavior was not criminal.¹² Interestingly, despite the fact that this case is constantly cited as a prime example of cyberbullying, Drew's behavior does not qualify as cyberbullying under most definitions because the person bullying was an adult.¹³ This is a critical example of why any law or policy attempting to deal with the problem of cyberbullying needs a clear definition of the term to avoid being under-inclusive and over-inclusive.

Unfortunately, defining the term "cyberbullying" is difficult as there is no single definition for cyberbullying.¹⁴ The Centers for Disease Control and Prevention ("CDC"), the government agency tasked with "protecting health and promoting quality of life,"¹⁵ provides one potential definition of cyberbullying. The CDC defines "electronic aggression," which includes cyberbullying, as "[a]ny type of harassment or bullying (teasing, telling lies, making fun of someone, making rude or mean comments, spreading rumors, or making threatening or aggressive comments) that occurs through email, a chat room, instant messaging, a website (including blogs), or text messaging."¹⁶ The director of the Center for Safe and Responsible Internet Use provides a similar second definition of cyberbullying, which is "the use of electronic technologies to engage in repeated and/or extensively disseminated acts of cruelty towards others."¹⁷ In contrast, a third definition of cyberbullying, provided by the website Stopcyberbullying.org, defines cyberbullying as "a child, preteen, or teen [being] tormented, threatened, harassed, humiliated, embarrassed or otherwise targeted by another child, preteen, or teen using the Internet, interactive and digital technologies or mobile phones."¹⁸ What is notable about this definition is that it limits cyberbullying to acts committed by children against children; it does not include, for example, students creating websites to harass teachers or administrators.¹⁹

A more useful definition of cyberbullying has been suggested by one researcher, who has broken down the definition of cyberbullying into four distinct elements: "(1) the behavior is deliberate, not accidental; (2) the behavior is repeated, not just a one-time incident; (3) harm occurs—from the perspective of the target; and, (4) it is executed using the benefit of technology."²⁰ This framework gives helpful guidelines for determining if certain behavior is cyberbullying. One can easily apply the definition to any behavior to determine if it falls into a category that can be considered cyberbullying without much subjectivity.²¹ It appears, therefore, that the fourth and final definition is the best definition of cyberbullying because of its ease of application.

Cyberbullying has shown itself to be a serious problem in schools. Despite the fact that cyberbullying tends to occur outside of school,²² the effects spread to the school.²³ Victims of cyberbullying are more likely to have behavioral problems in schools.²⁴ They are "significantly more likely to also report feeling unsafe at school."²⁵ Two studies published in the Journal of Adolescent Health in 2007 estimated that between 9% and 34% of children have been harassed online.²⁶ A 2006 study by the Pew Internet and American Life Project found that number to be 32%.²⁷

Despite the apparent conflict in precisely defining cyberbullying, numerous jurisdictions have enacted laws to combat the practice. one of the first laws enacted was a city ordinance in Dardenne Prairie, Missouri, the hometown of both Lori Drew and Megan Meier.²⁸ Also in response to the same case, Missouri amended its harassment statute to criminalize "recklessly frighten[ing], intimidat[ing], or caus[ing] emotional distress" to a minor.²⁹ Previously, the statute required that the conduct be purposeful.³⁰ The revised harassment statute would make Lori Drew's conduct illegal.³¹ A bill has been introduced in the U.S. Congress to criminalize cyberbullying behavior as well.³² As of November 2008, fourteen states had passed laws regarding cyberbullying.³³ All of these states required schools to address cyberbullying rather than criminalizing it.³⁴

III. North Carolina's Response to Cyberbullying

Possibly as a result of the jurisdictional and enforcement problems encountered with school-based anti-cyberbullying laws in other states, discussed in Part IV(E), infra, the North Carolina General Assembly took a different tactic in its most recent session.³⁵ The legislature enacted House Bill 1261, entitled in full as "an act protecting children of this state by making cyber-bullying a criminal offense punishable as a misdemeanor," or, in short, "Protect our Kids/Cyber Bullying Misdemeanor."³⁶

The bill adds a section to Chapter 14 of the North Carolina General Statutes, Section 14-448.1,³⁷ implying that it is related to § 14-448,³⁸ which defines the offense of computer trespass.³⁹ The bill makes it a crime to:

[b]uild a fake profile or Web site[,] [p]ose as a minor in an Internet chat room[,] [a]n electronic mail message[,] or [a]n instant message[,] [f]ollow a minor online or into an Internet chat room[,] or [p]ost or encourage others to post on the Internet private, personal, or sexual information pertaining to a minor⁴⁰

if these actions are taken "[w]ith the intent to intimidate or torment a minor."⁴¹ only two of the terms used in this first section, "Internet chat room" and "profile," are defined, and "profile" appears to be defined incorrectly.⁴² The bill amends the definitions section of Article 60 of Chapter 14 of the North Carolina General Statutes⁴³ to define the terms "Internet chat room" and "profile."⁴⁴ An "Internet chat room" is defined in such a way as to properly encompass all chat rooms and instant messages as well as services like Facebook and FriendFeed.⁴⁵ The statutory definition of "profile," however, as "a configuration of user data required by a computer so that the user may access programs or services and have the desired functionality of that computer," seems to be incorrect for the intent of the law.⁴⁶ Most likely, the legislature intended to target and outlaw the creation of fake MySpace or Facebook profiles as a result of the Megan Meier case.⁴⁷ The law, as written, however, does not include those types of profiles. Instead, the law refers to, for example, an account of a corporate or business network and the files that go along with that account.⁴⁸

The second subsection of section 1 of the Protect Our Kids law makes it illegal to, "[w]ith the intent to intimidate or torment a minor or the minor's parent or guardian[,] . . . use a computer . . . [to] [p]ost a real or doctored image of a minor on the Internet," hack into any computer system, steal...