N.Y. Court strikes down overbroad anti-cyberbullying law

By Erin Ayers on July 8, 2014

?????The New York Court of Appeals struck down a local law meant to criminalize cyberbullying, saying that it violated the 16-year-old defendant’s freedom of speech, but acknowledging the need to protect minors from the emotional harm caused by bullying.

While New York State has an anti-bullying statute, the Dignity for All Students Act, it did not pertain to cyberbullying until an amendment was passed in 2012. Albany County officials, feeling that a solution was needed for cyber acts, passed a local law in 2010 that outlawed “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, 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.” It specified that this misdemeanor crime would be punishable by up to one year in jail or a $1,000 fine.

Defendant Marquan M. was prosecuted under the law for anonymously posting photographs and alleged sexual information about his fellow classmates on Facebook. He pleaded guilty to cyberbullying, but reserved the right to contest the law’s constitutionality. A lower court decided the law was constitutional as it applied to activities directed at minors and found that the application of that provision to Marquan’s Facebook posts didn’t violate his First Amendment free speech rights. He appealed, stating that the law is “overbroad in that it includes a wide array of protected expression, and is unlawfully vague since it does not give fair notice to the public of the proscribed conduct.”

The New York Court of Appeals agreed that Albany County had created a law “of alarming breadth” that could conceivably apply to nearly every form of communication, even those well outside the sphere of cyberbullying. The Court also noted, however, that preventing cyberbullying is a valid public policy goal.
“Cyberbullying is not conceptually immune from government regulation, so we may assume, for the purposes of this case, that the First Amendment permits the prohibition of cyberbullying directed at children, depending on how that activity is defined,” stated the Court. “Our task therefore is to determine whether the specific statutory language of the Albany County legislative enactment can comfortably coexist with the right to free speech.”

In order to find the statute applicable, the Court noted that it would have to essentially rewrite the law in a “creative” fashion in order to strip away the unconstitutional portions and maintain the applicable part – that which prohibits cyberbullying against minors. The County suggested in its defense of the law that the relevant portion is severable from the rest. A dissenting justice of the Court agreed with this interpretation, stating that key to prohibiting certain forms of speech is that they are meant “to inflict significant emotional harm.”
The majority of the Court disagreed.

“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,” said the Court. “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.”

The Court did not make its decision without asserting that the Marquan M.’s actions were reprehensible, emphasizing the damaging nature of cyberbullying and bullying of others in general.
“There is undoubtedly general consensus that defendant’s Facebook communications were repulsive and harmful to the subjects of his rants, and potentially created a risk of physical or emotional injury based on the private nature of the comments,” the Court said. “He identified specific adolescents with photographs, described their purported sexual practices and posted the information on a website accessible world-wide. Unlike traditional bullying, which usually takes place by a face-to-face encounter, defendant used the advantages of the internet to attack his victims from a safe distance, twenty-four hours a day, while cloaked in anonymity.”

The New York Civil Liberties Union defended Marquan M. and the group applauded the decision.
“The solution to cyberbullying isn’t criminalizing children’s speech,” said NYCLU Executive Director Donna Lieberman. “New York needs to follow the Dignity Act and find other constructive ways to deal with bullying. Arresting children for what they say or write won’t create safe, nurturing schools. It takes a positive educational approach, not jail or handcuffs, to teach children how to treat each other with decency and respect.”


Erin is the managing editor of Advisen’s Front Page News. She has been covering property-casualty insurance since 2000. Previously, Erin served as editor-in-chief of The Standard, New England’s Insurance Weekly. Erin is based in Boston, Mass. Contact Erin at [email protected].