By Hanna Fox; Staff Member (Vol. 15)
Young people have an unprecedented access to technology, which grants them abundant access to the world around them, as well as to one another constantly. Technology’s increased prevalence is relevant in children’s education, entertainment, and social interactions. Though children experience many benefits from the increased use of technology, that same surge has created a new monster: cyberbullying.
The Cyberbullying Research Center defined cyberbullying as the “[w]illful and repeated harm inflicted through the use of cellphones, computers, or electronic devices.” Technology has transformed the role of the school-house bully in three ways. First, computers and phones allow a bully to access a victim outside of the school-house doors. Second, technology provides an infinitely wider audience than traditional bullying, and its effects can be devastating to children. Finally, cyberbullying can frequently be done anonymously, often times emboldening bullies to be especially cruel, and diminishing the possibility of punishment.
It is no surprise that the effects of this behavior can be devastating for adolescents. Approximately one third of middle and high school students report to have been victims of cyberbullying at some point in their lives. Many children resort to skipping school in an attempt to avoid the consequences of being targeted online by other students, and tragically some victims of cyberbullying have resorted to suicide.
Parents and school boards have turned to legislatures to remedy this pervasive issue, but the First Amendment freedom of speech provides serious hurdles to effective legislation. Legislators must ensure that in defining and addressing cyberbullying, they are choosing language and methods that are the least restrictive of the First Amendment rights held by the potential offenders. Furthermore, there are serious concerns as to whether the legislature is the appropriate authority.
State v. Bishop
Many of the First Amendment concerns were discussed in a 2016 North Carolina Supreme Court decision, State v. Bishop. In Bishop, an anti-cyberbullying statute was struck down as a content based restriction of speech which did not satisfy strict scrutiny.
A student at Southern Alamance High School posted negative pictures and comments on another student’s Facebook page, and was convicted under N.C. Gen Stat § 14-458.1, which prohibited posting “with the intent to intimidate or torment a minor, post or encourage other to post on the Internet private, personal, or sexual information pertaining to a minor.” That student subsequently challenged the constitutionality of the law on First Amendment grounds.
The North Carolina Supreme Court ultimately agreed that the statute infringed on the student’s right to free speech. In doing so, the Court emphasized that the statute could conceivably be applied to a wide variety of otherwise protected speech. Additionally, the Court expressed concern that the statute did not require that any harm result from the speech, or that the victim of comments that qualified as cyberbullying ever even be made aware that such comments existed
Though the North Carolina legislature may find more success in creating legislation that remedies the North Carolina Supreme Court’s concerns, North Carolina is one of many states that have experienced the tension between cyberbullying laws and the First Amendment. These statutes rarely survive First Amendment scrutiny when challenged.
Moving forward, states like North Carolina face the seemingly impossible task of crafting legislation within a First Amendment minefield. The legislature would have to define the conduct in such a way that both identifies the behavior to be prohibited and protects otherwise permissible speech. Additionally, they cannot create a content based restriction on speech, and must articulate grounds for schools to extend their authority over conduct that is taking place outside of school.
Some states have been successful in focusing on the harm caused by the conduct, rather than the content of the speech itself, but it remains unclear if that shift in focus will be enough to make these statutes pass constitutional muster. States have found success in choosing statutes that instead mandate that schools create cyberbullying prevention and response programs.
Alternatively, the remedy to the issue may very well fall outside of the legislature. Many studies reveal that the criminalization of “child like behavior” tends to produce more harm than good. Subjecting the bully to criminal sanctions does little to address his motives for bullying, nor does it provide any real recovery for his victim. Additionally, there is no statistical evidence that criminal sanctions deter bullying.
Many scholars instead advocate for a remediation approach to cyberbullying, thus ridding the legislature of the burden of utilizing the power of the state to chip away at First Amendment rights of students. The invalidation of N.C. Gen Stat § 14-458.1 provides North Carolina with a unique opportunity to reconsider the most effective method of addressing cyberbullying, and the best answer may be to move away from criminal sanctions all together.