Why North Carolina’s New Law Making It a Crime for Students to Bully Teachers Online Is Deeply Troubling From a First Amendment Standpoint

Posted in: Constitutional Law

On December 1, North Carolina passed a law that widened the scope of its anti-cyberbullying statute, which protects minors, to also protect teachers and other school employees.

As the First Amendment Center reported, the North Carolina ACLU is now contemplating a possible challenge to the law, which may be the first of its kind in the United States.  Accordingly, the North Carolina ACLU is seeking persons who have been affected by the new law, and thus could be possible plaintiffs in a lawsuit challenging it.

The North Carolina Law’s Provisions

Specifically, the North Carolina law criminalizes targeting a teacher or other school employee by: (1) building a fake online profile or website; (2) posting private, personal, or sexual information; (3) tampering with their online networks, data or accounts; (4) signing them up to a pornographic website; or (5) making any statement, whether true or false, that is likely to provoke someone else to stalk or harass them.

The penalties for violations of these provisions could be up to 60 days in jail and a $1000 fine, and would apply to violators as young as sixteen, as sixteen-year-olds are treated as adults under North Carolina law.

In this column, I’ll argue that the North Carolina law is Draconian in imposing criminal, rather than civil, penalties, and that some of its provisions would still violate the First Amendment even if only civil, and not criminal, penalties were imposed.

Rather than resort to criminal law, or even to civil tort law to punish erring students, schools should address this kind of conduct with their own tools—by warning and then suspending or expelling students, if to do so is truly necessary.  Moreover, in the case of a student’s sparking a genuine disruption, in class or out of it (with Facebook posts and pages arguably counting as out-of-class speech), schools can always invoke the key Supreme Court school-speech precedent, about which I’ve written frequently here on Justia’s Verdict: Tinker v. Des Moines Independent Community School District.

The North Carolina Law’s Criminal Penalties Are Draconian and Unnecessary

One of the most striking aspects of the North Carolina law is its imposition of criminal penalties for all of the violations that it lists.  The violations at issue, however, range all the way from the serious to the relatively minor, and some of these violations would have been better addressed with existing civil penalties, or no penalty at all.

I’ll consider each violation in turn:

First, there’s the provision forbidding building a fake profile or website for a teacher or other school employee.  Here, there should be an exception for parody sites, and for certain other sites that make it clear that they are not actually the real sites of school employees.  Parody is clearly First-Amendment-protected, and even a site that is not parodic, but that still makes it obvious that it is not the school employee’s real site, should also be First-Amendment-protected.

Second, there’s the provision forbidding posting private, personal, or sexual information of the school employee. Here, tort law—not criminal law—would be much more appropriate.  Such postings, under tort law, may be the subject of civil suits for the tort of intentional infliction of emotional distress (IIED).  The risk of parents’ having to pay money damages here should be enough; criminal punishment is not necessary. And, indeed, such punishment might backfire, with a jail term providing a “school for crime” when it comes to a prior prankster who would not otherwise have escalated to serious criminal activity.

Third, there’s the provision forbidding tampering with school employees’ online networks, data, or accounts.  Current state and federal law already forbids such conduct, so this provision—while otherwise unobjectionable—is likely redundant.

Fourth, there’s the provision forbidding signing a school employee up to a pornographic website.  Here, too, current law already covers this, as it cannot be accomplished without a form of impersonation.

Fifth and finally, there’s the prohibition on making any statement, whether true or false, that is likely to provoke someone else to stalk or harass a school employee.

This prohibition is incredibly broad, and will certainly be struck down in court, for several reasons, including these two:

First, this supposed crime has no foreseeability element, so that an innocent person could easily be caught up in its web.

Second, this supposed crime ignores the fact that only very rarely, if ever, can true statements be penalized, consistent with the First Amendment, despite what their consequences ultimately might be.

Except in Extreme Instances, Teachers Do Not Need the Kind of Protection From Non-Physical Bullying That Students Do

More generally, I believe that the North Carolina legislature should not have extended the same anti-bullying law that it enacted to protect minors (and thus, the lion’s share of public-high-school students) to reach their teachers, and other school employees, as well.

That’s because teachers are much better-protected than students are, when it comes to school bullying, and protecting teachers too avidly may mean incurring too high a First Amendment cost.

Criminal penalties imposed to protect teachers may not only silence bullies, but also silence student critics—by making them worry, for instance, about whether an Op Ed in the school newspaper that focuses on a particular teacher, or set of teachers, will now be seen as a criminal offense.

When it comes to bullying, teachers—unlike many students—have excellent options: They can throw bullies out of their classes. They can make a call to the bully’s parents to see if they will discipline their child.  They can ask the school administration to expel the bully, typically with a teacher’s union representative by their side, advocating their point of view.  And in milder bullying cases, the teacher may be able to convince the bullying student to see reason, or may simply have the maturity to laugh off, say, a juvenile Facebook page featuring a caricature of the teacher, and go about his or her day.

In sum, teachers have recourse to solutions and resources that are out of the reach of students, and for that reasons, the law should not treat them in the same way.  Such a false parallel will only lead to the further watering down of students’ First Amendment rights.