Bullying is bad, but free speech is important. That’s the (extremely simplified) gist of People v. Marquan M., a Court of Appeals Decision dated July 1, 2014. The court, in an opinion authored by Judge Graffeo, held that an Albany Law aimed at prohibiting “cyberbullying” was unconstitutional.
The facts, according to the court:
[Defendant], a student attending Cohoes High School in Albany County, used [Facebook] to create a page bearing the pseudonym “Cohoes Flame.” He anonymously posted photographs of high-school classmates and other adolescents, with detailed descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information. The descriptive captions, which were vulgar and offensive, prompted responsive electronic messages that threatened the creator of the website with physical harm.
Defendant was criminally prosecuted under Albany Local Law No. 11 of 2010 which adopted a new crime of “cyberbullying”. Section 2 of that law defined “cyberbullying” as
any act of communicating or causing a communication to be sent by mechanical or electronic means, including 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.
Under the statute, which became effective in November of 2010, knowingly engaging in this activity was a misdemeanor offense punishable by up to one year in jail and a $1,000 fine.
Defendant challenged the statute on First Amendment grounds, arguing that “it 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.”
After reviewing the applicable law, the Court struck the law down, reasoning that it amounted to “a criminal prohibition of alarming breadth” that “embraces a wide array of applications that prohibit types of protected speech far beyond the cyberbullying of children.” In addition, it refused to salvage part of the law under the “severance” doctrine as argued by the county, noting that “the First Amendment protects annoying and embarrassing speech … even if a child may be exposed to it.”
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.
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. 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. Although the First Amendment may not give defendant the right to engage in these activities, the text of Albany County’s law envelops far more than acts of cyberbullying against children by criminalizing a variety of constitutionally-protected modes of expression. We therefore hold that Albany County’s Local Law No. 11 of 2010 — as drafted — is overbroad and facially invalid under the Free Speech Clause of the First Amendment.
The Court therefore reversed the lower court’s decision and dismissed the accusatory instrument.
Judge Smith dissented, arguing that the provisions of the law that the county conceded are invalid “can be readily severed from the rest of the legislation”, and that the remaining provisions of the law “can, without any strain on its language, be interpreted in a way that renders it constitutionally valid.”