24 N.Y.3d 1 (2014)

A cyberbullying law that is overbroad, encompassing a wide array of protected speech beyond the cyberbullying of children, violates the First Amendment’s Free Speech Clause.

Summary

This case concerns the constitutionality of Albany County’s cyberbullying law. Defendant, a high school student, anonymously posted sexual information about classmates on Facebook and was criminally prosecuted under the local law. The New York Court of Appeals held that the law was facially invalid under the First Amendment because it was overbroad, criminalizing a variety of constitutionally-protected modes of expression beyond the cyberbullying of children. The court reasoned that the law’s reach extended to communications aimed at adults and fictitious entities, and included various forms of electronic communication intended to harass or annoy, not just those intended to inflict significant emotional harm on children.

Facts

Defendant Marquan M., a 16-year-old high school student in Albany County, created a Facebook page under the pseudonym “Cohoes Flame.” He posted photographs of classmates with vulgar descriptions of their alleged sexual practices and personal information. A police investigation revealed that defendant was the author of the postings. He admitted his involvement and was charged with cyberbullying under Albany County’s local law.

Procedural History

Defendant moved to dismiss the charge, arguing that the cyberbullying statute violated his First Amendment right to free speech. The City Court denied the motion. Defendant pleaded guilty to one count of cyberbullying, reserving his right to raise his constitutional arguments on appeal. The County Court affirmed the conviction, concluding the law was constitutional as applied to minors. The New York Court of Appeals granted defendant leave to appeal.

Issue(s)

Whether Albany County’s cyberbullying law violates the Free Speech Clause of the First Amendment because it is overbroad and unlawfully vague.

Holding

No, because 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.

Court’s Reasoning

The Court of Appeals began by recognizing that while the government generally cannot restrict expression based on its message or content, it has a compelling interest in protecting children from harmful materials. The court acknowledged that cyberbullying is not conceptually immune from government regulation. However, the specific language of the Albany County law was too broad. The law criminalized “any act of communicating…by mechanical or electronic means…with no legitimate…personal…purpose, with the intent to harass [or] annoy…another person.” This encompassed a wide array of protected speech, beyond cyberbullying of children. The court noted that the law covered communications aimed at adults and fictitious entities, not just children. It also included every conceivable form of electronic communication, intended to “harass, annoy…taunt…[or] humiliate,” not just those intended to inflict significant emotional harm on children.

The court rejected the County’s argument to sever the offending portions of the statute to save it, stating, “the doctrine of separation of governmental powers prevents a court from rewriting a legislative enactment through the creative use of a severability clause when the result is incompatible with the language of the statute.” Modifying the statute to the extent suggested would result in an amended scope that bore little resemblance to the actual language of the law, leading to vagueness. The court stated, “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.” The court concluded that Albany County failed to meet its burden of proving that the restrictions on speech in its cyberbullying law survived strict scrutiny. As the court said, “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.”