Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, July 3, 2014

NY Court of Appeals Strikes Cyberbullying Law

The New York Court of Appeals has struck down a local law which criminalizes cyberbullying, holding that it still prohibits a range of speech that the First Amendment of the U.S. Constitution protects. 

In People v. Marquan M., the court held that Albany County Local Law No. 11 of 2010, § 1 criminalized not just cyberbullying, the intended problem, but also ""any act of communicating . . . by mechanical or electronic means . . . with no legitimate . . . personal . . . purpose, with the intent to harass [or] annoy. . . another person."

Said the court in part: 

On its face, the law covers communications aimed at adults, and fictitious or corporate entities, even though the county legislature justified passage of the provision based on the detrimental effects that cyberbullying has on school-aged children. The county law also lists particular examples of covered communications, such as "posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail." But such methods of expression are not limited to instances of cyberbullying — the law includes every conceivable form of electronic communication, such as telephone conversations, a ham radio transmission or even a telegram. In addition, the provision pertains to electronic communications that are meant to "harass, annoy . . . taunt . . . [or] humiliate" any person or entity, not just those that are intended to "threaten, abuse . . . intimidate, torment . . . or otherwise inflict significant emotional harm on" a child. In considering the facial implications, it appears that the provision would criminalize 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 court found that it could not sever the relevant portion in order to save the law; doing so would not still not cure the issues with its constitutionality. 

As we have recently made clear, the First Amendment protects annoying and embarrassing speech (see e.g. People v Golb, __ NY3d __, 2014 NY Slip Op 03426 [May 13, 2014]; People v Dietze, 75 NY2d at 52-53), even if a child may be exposed to it (see Brown v Entertainment Merchants Assn., 131 S Ct at 2736), so those references would also need to be excised from the definitional section. And, the First Amendment forbids the government from deciding whether protected speech qualifies as "legitimate," as Albany County has attempted to do (see Snyder v Phelps, __ US __, 131 S Ct 1207, 1220 [2011], quoting Erznoznik v Jacksonville, 422 US 205, 210-211 [1975]; cf. People v Shack, 86 NY2d at 536-537). It is undisputed that the Albany County statute was motivated by the laudable public purpose of shielding children from cyberbullying. The text of the cyberbullying law, however, does not adequately reflect an intent to restrict its reach to the three discrete types of electronic bullying of a sexual nature designed to cause emotional harm to children. Hence, to accept the County's proposed interpretation, we would need to significantly modify the applications of the county law, resulting in the amended scope bearing little resemblance to the actual language of the law. Such a judicial rewrite encroaches on the authority of the legislative body that crafted the provision and enters the realm of vagueness because any person who reads it would lack fair notice of what is legal and what constitutes a crime. Even if the First Amendment allows a cyberbullying statute of the limited nature proposed by Albany County, the local law here was not drafted in that manner. Albany County therefore has not met its burden of proving that the restrictions on speech contained in its cyberbullying law survive strict scrutiny.

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