Speech? Or Crime? A Look at North Carolina’s New Cyberbullying Law

Posted on Nov 30, 2012

In the 1969 Supreme Court case of Tinker v. Des Moines School District, Justice Abe Fortas delivered the option of the Court. “First Amendment rights,” he wrote, “applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.”

And yet free expression has been constantly under attack in the nearly 50 years since that decision was announced. A few weeks ago, the libertarian magazine Reason points out that one of the latest assaults came just in time for the new school year in North Carolina. While people across the United States have viewed peer bullying in school with growing concern in recent years, the newly enacted Law 2012-149 makes it a crime for a student to “cyberbully” a teacher.

Does this “crime” have any victims?

The new North Carolina law makes each instance of cyberbullying a school employee a class 2 misdemeanor—equivalent to simple assault or resisting arrest, according to Reason. The potential punishment extends up to 60 days in jail or a $1,000 fine. The law takes effect December 1.

It’s not immediately clear what outbreak of crime this measure is intended to block. It’s true that American society has become less tolerant of student-on-student bullying, and there is growing awareness that verbal bullying (including online bullying) can be just as damaging as physical bullying. But if teachers have been excessively bullied by teenagers in North Carolina, that certainly hasn’t been prominently mentioned in the news.

The state—and here, we mean both law enforcement and school officials, who all serve as agents of the government—is in a very difficult place when it sets itself up in judgment of what citizens of any age can say or write. Our free speech rights are precious and essential to democracy. The state government cannot squelch those rights simply by saying “this is now a criminal offense” to some kinds of communication it disapproves of. That sort of action tends to suppress the free exchange of ideas for adults as well as children.

There already is a legal cure when someone goes too far in malicious criticism of a teacher or anyone else: a libel lawsuit. In the meantime, we shouldn’t use the threat of a criminal record to force children to restrain their computer use. In the long run, that will only increase skepticism about adult motives.

The North Carolina juvenile crime lawyers at Speaks Law Firm in Wilmington fully expect this law to be overturned—sooner or later—on constitutional grounds. Until then, any potential client who believes that the criminal law is being used to suppress the exercise of his or her fundamental civic rights can reach us toll free at 877-593-4233.


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R. Clarke Speaks
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Trial Lawyer and Founder of Speaks Law Firm, P.C.