Wednesday, July 9, 2014
The New York Court of Appeals recently struck down a local cyberbullying ordinance enacted by the Albany County Legislature on First Amendment overbreadth grounds. In 2010, the Albany County Legislature adopted a new misdemeanor offense — cyberbullying — defined as "any act of communicating . . . by mechanical or electronic means . . . with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person." A high school student was prosecuted under the statute after he anonymously posted photographs of his classmates and other minors with sexual captions attached to the pictures. The student pleaded guilty to one count of cyberbullying but reserved his right to raise his constitutional arguments on appeal. On appeal, the Court noted that the statute "create[d] a criminal prohibition of alarming breadth" that "criminalize[d] a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult." The county government conceeded on appeal that the ordinance was overbroad and thus limited protected free speech, but argued that the law could be saved because certain sections passed strict scrutiny review, namely the prohibitions against disseminating sexually explicit photographs, private or personal sexual information, and false sexual information with no legitimate public, personal or private purpose. Those sections were justified, the County argued, by a compelling government interest and were narrowly drawn to serve that interest. The NY Court of Appeals declined to save the non-infringing sections of the ordinance, finding that the law's text "envelops far more than acts of cyberbullying against children by criminalizing a variety of constitutionally-protected modes of expression" and that the Court could not rewrite the law without encroaching on legislative power and modifying the legislature's original intent. Read the Court's opinion in People v. Marquan M. here and Eugene Volokh's comments on the case here.