The Bully Pulpit and The First Amendment

A North Carolina “cyber bullying” statute prohibits the use of 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” with “the intent to intimidate or torment a minor.”  

A North Carolina high school student named Robert Bishop was convicted under that statute for posting several online comments about a classmate named Dillion Prince.  It appears that a text message Prince had sent another classmate had found its way to Facebook.  It’s not clear what the text message said, but it triggered over 30 comments.   

Bishop added several comments, including:  1) “This is excessively homoerotic in nature. Exquisite specimen;” (2) “Anyone who would be so defensive over Dillion can’t be too intelligent;” (3) “And you are equally pathetic for taking the internet so seriously;” and, (4) “There isn’t a fight. We’re slamming someone on the open forum that is the internet.”  

On another occasion, and in response to another text message from Dillion posted on Facebook, more comments appeared.  One commenter said “Can we just kick his ass already?”  Bishop responded:  “I never got to slap him down before Christmas Break,” followed by a “sad face” emotion icon. Another student requested for someone to “tag” Dillion, in order for him to be notified of these posts. Defendant replied, “I’ll add him.”   

On another occasion, Bishop commented about Dillion as follows:  “I heard that his anus was permanently stressed from having awkwardly shaped penises in it” and stated that Dillion’s genitals were “probably a triangle.”  

Okay, so the evidence establishes that Robert Bishop is a punk.  Slam dunk, open and shut.  But to the great relief of an overwhelmingly large percentage of teenage boys, being a punk is not a crime.  But did Bishop really violate the statute? And even if he technically did, what about the First Amendment?  

Let’s address question 1.  There’s no question that Bishop used a computer and that Prince is a minor.  And let’s put aside Bishop’s motivation for a minute.  There were three occasions of alleged cyber bullying here.  And as to the first two, it’s tough to see where any of Bishop’s comments are particularly “private, personal or sexual.”  The third comment is crude, but it’s so over the top, it seems like it would be considered “hyperbolic”  — that is, not to be taken seriously.   

And what about Bishop’s motivation?  Again, he’s a punk, but did any of his comments pose a direct threat to Prince?  Was Bishop trying to induce Prince to do or not do something? That’s usually a feature of “intimidation.”  And “torment” is a strong word, but also vague.  Is the fact that Prince feels tormented sufficient to establish Bishop’s motive?  Is that all it takes?  Does a conviction ride on how thin skinned the target happens to be?   

In upholding the North Carolina statute,  the appellate court concluded that the statute did not punish Bishop based on the content of his speech, but rather punished his conduct.  It compared the cyber bullying statute to the North Carolina statute prohibiting telephone harassment. It cited to a previous decision upholding that statute, because that statute was directed at “using telephones to annoy, offend, terrify or harass others and not directed at prohibiting the communication of thoughts or ideas.”   

I’m not so sure about that comparison.  A telephone is by its nature intrusive – it rings and forces action, typically answering.  So if a person called 100 times a day just to tell you you’re great, you might still be annoyed.  The content of the message really doesn’t matter.  It’s like graffiti.  No matter how much I support The Cincinnati Reds, I wouldn’t want someone to spray paint “Go Reds” on my car.   

But cyber bullying is not intrusive in the same manner as telephone harassment.  And the telephone harassment statute did not address the content of the call.  In my example above the person who called me 100 times a day just to tell me I’m great could be charged with telephone harassment.  But if the person posted how great I was 100 times on their Facebook page, there would be no liability under the cyber bullying statute, simply because that message isn’t “personal, private or sexual.”   

The point is, the content of the message matters.  And if that’s the case, the North Carolina cyber bullying statute violates the First Amendment.  Even though Robert Bishop is still a punk.