N.C. outlaws fake social media profiles of school officials

NORTH CAROLINA — Less than a month after the Supreme Court’s ruling upholding the right to make false claims, North Carolina has made it illegal for students to make fake social media profiles mocking school administrators.

Changes to the School Violence Prevention Act signed into law July 15 prohibit students from making fake accounts or posting real or doctored photos of school employees with the intent to “intimidate” or “torment.”

Students who violate the law can be charged with a class two misdemeanor, punishable by up to a $1,000 fine and 30 days probation for a first offense.

Some have questioned the new law’s constitutionality, given that several terms are not defined in the legislation.

The American Civil Liberties Union of North Carolina opposed the bill, but was only successful in getting the line “with the intent to embarrass” removed from the original proposal.

“We did have concerns when it was running through the legislature because of the fact that we did think that it would chill speech,” North Carolina ACLU Policy Director Sarah Preston said. “And we thought at the very least that the terms ‘torment’ and ‘intimidate’ ought to be defined in the law.”

Sen. Tommy Tucker (R-Mecklenburg), the bill’s sponsor, did not return multiple phone calls seeking comment.

However, Rep. Rick Glazier (D-Cumberland), who sponsored the original School Violence Prevention Act, said the new bill was a direct response to issues schools were dealing with. Social media bullying and harassment issues were interfering with educational opportunities for students and, “for adults, it created an intimidating atmosphere that made it impossible for them to do their jobs,” Glazier said.

State Rep. Sarah Stevens (R-Surry), who co-chaired both the House subcommittee and the joint conference committee that approved the bill, was surprised to hear of the opposition.

In fact, the bill passed unanimously in the state Senate and only Rep. Phillip Haire (D-Haywood) voted against the bill in the House.

The North Carolina School Boards Association originally requested the change because without it the law was not covering issues that schools were encountering, Stevens said.

“You have other speech that incites to the point that it’s not protected by the First Amendment,” Stevens said. “Intimidation and torment, I would think, are not protected because, in essence, intimidation and torment can be to the level of willful conduct and can be criminal in nature, so now we have created a crime that says these are.”

The NCSBA was concerned with parts of the existing 2009 anti-bullying law, but assistant legal counsel Janine Murphy could not confirm which parts they wanted changed. She said the bill made significant changes to the School Violence Prevention Act, but would not comment further, deferring questions to Director of Governmental Relations Leanne Winner, who was out of town.

Though opposition from the ACLU resulted in some changes to the bill, “intimidate” and “torment” remain undefined despite concern about the broad range of meanings for those words.

“We actually thought the word ‘torment’ should probably come out, and if they wanted to include ‘intimidate’ they should use similar definitions to what is in stalking statutes for ‘harassment,’” Preston said. “So then you would be actually be putting somebody in fear of injury, or death, or assault, that kind of thing, and that would be different from just lying about a person.”

The word “intimidate” is not formally defined anywhere in North Carolina law.

“I think it’s going to be up to a court to decide that,” Stevens said. “Well, in North Carolina we do have a definition of ‘torture, torment and cruelly,’ which is included under cruelty to animals, so at least it’s been defined once.”

The state animal cruelty law defines the words, including torment, as, “any act, omission, or neglect causing or permitting unjustifiable pain, suffering, or death.”

Glazier has his own idea of what ‘torment’ means in this context.

“Tormenting to me is to actively, in a designed, premeditated way, seek to deliberately cause pain, whether that’s psychiatric pain or physical pain,” he said.

Glazier said the legislature went out of its way it ensure the law was constitutional.

School discipline for student speech on the Internet has raised First Amendment concerns across the country. In 2011, the 3rd U.S. Circuit Court of Appeals – which does not cover North Carolina – ruled that two students had a constitutional right to create fake MySpace profiles mocking their principals.

On June 28, the U.S. Supreme Court decided in United States v. Alvarez that even false speech is constitutionally protected – in that case, lying about receiving military decorations.

“I think that the First Amendment is not an absolute, and I think when you rise to the level of creating torment or intimidation, I just don’t think that’s going to be a problem,” Stevens said. “To be lying is one thing, but when you’re lying with the intent to hurt someone, again, you’re lying about your credentials, you may have gotten hired, but who did you really hurt in all this? It’ll be interesting.”

By Nikki McGee, SPLC staff writer

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