93 N.C. L. Rev. Addendum 179 (2015)
Criminalization of online speech raises significant First Amendment concerns. Under the First Amendment, the government may not restrict speech based on its content unless it falls into an exception or is narrowly tailored to serve a compelling state interest. States also may not pass laws that criminalize a substantial amount of protected speech or that do not clearly define what types of speech are forbidden. As many commentators have pointed out, cyberbullying laws often violate these principles by criminalizing broad swaths of online speech based only on writers' intent or the effect of the speech on victims.
These arguments got their first day in court in People v. Marquan M., which marked the first time a court has struck down a cyberbullying provision on constitutional grounds. In Marquan M., the New York Court of Appeals struck down an Albany County law criminalizing cyberbullying on the grounds that the statutory language was overbroad and vague. The court declined merely to sever the offending portions of the law because it found that the statutory language as written was not "fairly susceptible to an interpretation that satisfies applicable First Amendment requirements." Therefore, it was beyond the court's power to rewrite the statute.
If the reasoning used in Marquan M. is applied to other criminal cyberbullying statutes, several statutes that currently exist are likely to be found unconstitutional, including North Carolina's. Because these statutes criminalize online speech in very general ways, like Albany County's did, it will be difficult for courts and legislators to rewrite them in a way that is both constitutional and comprehensive in addressing bullying. When the offending speech is removed from the statutes, much of the deterrence the statutes are meant to create goes with it. This Recent Development argues that if states choose to pass criminal cyberbullying statutes after Marquan M., the legislation should be narrow and carefully drafted. It further argues that instead of passing laws criminalizing cyberbullying in all contexts, states should enact laws codifying a specific definition of cyberbullying and then require public schools to adopt policies in line with that definition. While this solution also has problems, such as enforcement difficulties and the question of to what extent schools can regulate out-of-school behavior, such laws are much less likely to violate the First Amendment because they usually fall within the student-speech exception to the Amendment.