Earlier this week, the New York State Court of Appeals (the state’s highest court) held Albany County’s cyberbullying law to be in violation of the First Amendment, and thus invalid. This is an important development, as laws and university policies that attempt to address cyberbullying on college campuses routinely suffer from the same defects.
The case, The People v. Marquan M. (PDF), arose when a 15-year-old high school student challenged the constitutionality of his conviction under Albany County’s cyberbullying ordinance, Albany County Local Law No. 11 of 2010. The ordinance 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.
Pursuant to Sections 3 and 4 of the ordinance, any person knowingly engaging in this behavior against “any minor or person” in Albany County was guilty of a misdemeanor offense, subject to a punishment of up to a year in jail and a $1,000 fine.
In considering the statute’s constitutionality, the Court of Appeals observed, “Based on the text of the statute at issue, it is evident that Albany County create[d] a criminal prohibition of alarming breadth.” (Quotation and citation omitted.) Striking down the law, the court explained:
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. 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.
With this analysis, the court concluded:
[T]he 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.
FIRE agrees with the court’s conclusion, and we are gratified that the New York State Court of Appeals recognized that anti-cyberbullying measures must be narrowly tailored to comply with the First Amendment. For years, FIRE has been telling college administrators that when they enact policies aimed at prohibiting harassment, bullying, or cyberbullying, they must be careful to do so in a manner that does infringe upon protected speech. I have taken that same message to countless legislators since I joined FIRE in 2012, especially with respect to the federal Tyler Clementi Higher Education Anti-Harassment Act (PDF), which also suffers from overbreadth.
For more analysis of the decision, check out UCLA School of Law Professor Eugene Volokh’s take published in The Volokh Conspiracy.