State Court of Appeals strikes Albany County cyberbullying law as unconstitutional

Social media is a wonderful thing, but not when malicious teenagers get their hands on it. In this case, a high school student began bullying classmates on Facebook. As the New York Court of Appeals summarizes the case, "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." He was prosecuted under an Albany County law that prohibited cyberbullying. The New York Court of Appeals has now struck down that law as unconstitutional.

The case is People v. Marquan M., decided by the New York Court of Appeals on July 1. Under the law, cyberbullying is defined as follows:

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

The First Amendment requires that laws clearly tell the world what is illegal. Otherwise, the statute is void for vagueness. The law also cannot be overbroad, i.e, it cannot prohibit both illegal and legal behavior. These statutes that regulate speech have to be carefully drawn to withstand a constitutional challenge. I am sure the County legislators did their best here, but their best is not good enough. The law is stricken.

The Court of Appeals writes that "it is evident that Albany County create[d] a criminal prohibition of alarming breadth. The language of the local law embraces a wide array of applications that prohibit types of protected speech far beyond the cyberbullying of children. As written, the Albany County law in its broadest sense criminalizes 'any act of communicating . . . by mechanical or electronic means . . . with no legitimate . . . personal . . . purpose, with the intent to harass [or] annoy. . . another person.' 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."

In addition, the law "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.'" The problem is that

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 of Appeals recently struck down the State's Aggravated Harassment law because it also covered too much speech and was prone to abuse by prosecutors. This decision falls in line with the Aggravated Harassment ruling.