United States: Facebook, Cyberbullying and the First Amendment – Susan Brenner

27 07 2014

BulliesA “15-year-old high school student” who was “prosecuted for ‘cyberbullying’ under a local law enacted by the Albany County Legislature” pleaded guilty to one count of cyberbullying and then challenged his conviction on appeal.  People v. Marquan M., 2014 WL 2931482 (Court of Appeals of New York 2014).  In his appeal, Marquan M. claimed the statute violated the  First Amendment. People v. Marquan M., supra.

Before the Court of Appeals took up that issue, it outlined the origins and purposes of the legislation at issue in the appeal:

`[B]ullying among school-aged youth’ has `increasingly be[en] recognized as an important problem affecting well-being and social functioning’. . . . (Tonja R. Nansel Bullying Behaviors Among U.S. Youth, 285 Journal of the Am Med Assn 2094 [2001] ). . . . [B]ullying represents an imbalance of power between the aggressor and victim that often manifests in behaviors that are `verbal (e.g., name-calling, threats), physical (e.g., hitting), or psychological (e.g., rumors, shunning/exclusion)’ (id. at 2094. . . ). . . .

Educators and legislators . . . have endeavored to craft policies designed to counter the adverse impact of bullying on children. New York . . . enacted the `Dignity for All Students Act’ in 2010 (see L 2010, ch 482, § 2; Education Law §§ 10 et seq)., declaring that our State must `afford all students in public schools an environment free of discrimination and harassment’ caused by `bullying, taunting or intimidation’ (EducationLaw § 10). In furtherance of this objective, the State prohibited discrimination and bullying on public school property or at school functions (see Education Law § 12[1]). . . .

[T]he problem of bullying . . . has been exacerbated by technological innovations and the widespread dissemination of electronic information using social media sites. . . . The use of computers and electronic devices to engage in this pernicious behavior is commonly referred to as `cyberbullying’ (see e.g. Education Law § 11[8]. . . .

The Dignity for All Students Act did not originally appear to encompass cyberbullying, particularly acts of bullying that occur off school premises. As the ramifications of cyberbullying on social networking sites spilled into the educational environment, in 2012, the State Legislature amended the Act [by adding] a proscription on bullying that applied to `any form of electronic communication’ (Education Law § 11[8]), including any off-campus activities that `foreseeably create a risk of substantial disruption within the school environment, where it is foreseeable the conduct . . . might reach school property’ (Education Law § 11[7]).

Before the addition of the 2012 amendments to the Dignity for All Students Act, elected officials in Albany County decided to tackle the problem of cyberbullying. They determined there was a need to criminalize such conduct because the `State Legislature ha[d] failed to address th[e] problem’ of `non-physical bullying behaviors transmitted by electronic means’ (Albany County Local Law No. 11 of 2010, § 1). In 2010, the Albany County Legislature adopted a new crime`– the offense of cyberbullying — which was defined 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’. (id. § 2)

The provision outlawed cyberbullying against `any minor or person’ situated in the county (id. § 3). Knowingly engaging in this activity was . . . a misdemeanor punishable by up to one year in jail and a $1,000 fine (see id. § 4). The statute . . . became effective in November 2010.

People v. Marquan M., supra.

A month after the Albany County cyberbullying law went into effect, Marquan M., a

student attending Cohoes High School in Albany County, used the social networking website `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.

A police investigation revealed [Marquan M.] was the author of the Cohoes Flame postings. He admitted his involvement and was charged with cyberbullying under Albany County’s local law. [Marquan M.] moved to dismiss, arguing that the statute violated his right to free speech under the 1st Amendment. After the City Court denied [his] motion, he pleaded guilty to one count of cyberbullying but reserved his right to raise his constitutional arguments on appeal. County Court affirmed, concluding the local law was constitutional to the extent it outlawed such activities directed at minors, and held that the application of the provision to [his] Facebook posts did not contravene his 1st Amendment rights. A Judge of this Court granted defendant leave to appeal. . . .

People v. Marquan M., supra.  (As Wikipedia explains, “in most cases,” appeals to the New York Court of Appeals are “by permission.”)

On appeal, Marquan M. renewed his 1st Amendment argument, claiming the county’s

cyberbullying law violates the Free Speech Clause of the 1st Amendment because 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. The County concedes that certain aspects of the . . . law are invalid but maintains those portions are severable, rendering the remainder of the act constitutional if construed in accordance with the legislative purpose of the enactment. Interpreted in this restrictive manner, the County asserts that the cyberbullying law covers only particular types of electronic communications containing information of a sexual nature pertaining to minors and only if the sender intends to inflict emotional harm on a child or children.

People v. Marquan M., supra.

The Court of Appeals prefaced its analysis of his argument by explaining that under

the Free Speech Clause of the 1st Amendment, the government generally `has no power to restrict expression because of its message, its ideas, its subject matter, or its content’ (U.S. v. Stevens, 559 U.S. 460 [2010]. . . . Consequently, it is well established that prohibitions of pure speech must be limited to communications that qualify as fighting words, true threats, incitement, obscenity, child pornography, fraud, defamation or statements integral to criminal conduct (see U.S. v. Alvarez, 132 S.Ct. 2537 [2012]; Brown v. Entertainment Merchants Assn.,131 S.Ct. 2729 [2011]. . . . Outside of such recognized categories, speech is presumptively protected and generally cannot be curtailed by the government (see U.S. v. Alvarez, supra. . . ).

Yet, the government unquestionably has a compelling interest in protecting children from harmful publications or materials (see Reno v. American Civil Liberties Union, 521U.S. 844 [1997]. . . . Cyberbullying is not conceptually immune from government regulation, so we may assume, for the purposes of this case, that the 1st Amendment permits the prohibition of cyberbullying directed at children, depending on how that activity is defined (see generally Brown v. Entertainment Merchants Assn., supra. . . .  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.

People v. Marquan M., supra.

The Court of Appeals then outlined the specific legal issues involved in this case:

Challenges to statutes under the Free Speech Clause are usually premised on the overbreadth and vagueness doctrines. A regulation of speech is overbroad if constitutionally-protected expression may be `chilled’ by the provision because it facially “prohibits a real and substantial amount of” expression guarded by the 1st Amendment (People v. Barton, 8 N.Y.3d 70 [2006]). This type of facial challenge, which is restricted to cases implicating the 1st Amendment, requires a court to assess the wording of the statute — without reference to the defendant’s conduct’ (People v. Stuart, 100 N.Y.2d 412 [2003]) — to decide whether `a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep’ (U.S. v. Stevens, supra quotation marks omitted]).

A law that is overbroad cannot be validly applied against any individual (see People v. Stuart, 100 N.Y.2d at 421, 765 N.Y.S.2d 1. . . . [A] statute is seen . . . as vague if `it fails to give a citizen adequate notice of the nature of proscribed conduct, and permits arbitrary and discriminatory enforcement’ (People v. Shack, 86 N.Y.2d 529 [1995]). Hence, the government has the burden of demonstrating that a regulation of speech is constitutionally permissible (see U.S. v. Playboy Entertainment Group, 529 U.S. 803 [2000]).

People v. Marquan M., supra.  Wikipedia has a good entry on the overbreadth doctrine, if you would like to know more about it.  It also has a good entry on the vagueness issue.

The court then took up the Albany County cyberbullying statute, finding that

[b]ased on the text of the statute . . ., it is evident Albany County `created a criminal prohibition of alarming breadth’ (U.S. v. Stevens, supra). 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. The 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 . . . are not limited to . . . 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 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.

People v. Marquan M., supra.

The Court of Appeals then noted that Albany County “admitted” the text of

statute is too broad and that certain aspects of its contents encroach on recognized areas of protected free speech. Because the law `imposes a restriction on the content of protected speech, it is invalid unless’ the County `can demonstrate that it passes strict scrutiny — that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest’ (Brown v. Entertainment Merchants Assn., supra.). For this reason, the County asks us to sever the offending portions and declare that the remainder of the law survives strict scrutiny.

What remains, in the County’s view, is a tightly circumscribed cyberbullying law that includes only three types of electronic communications sent with the intent to inflict emotional harm on a child: (1) sexually explicit photographs; (2) private or personal sexual information; and (3) false sexual information with no legitimate public, personal or private purpose.

People v. Marquan M., supra.

The court then noted that the County was correct when it pointed out that courts “should strive to save a statute when confronted with a Free Speech challenge,” but found it was

not a permissible use of judicial authority for us to employ the severance doctrine to the extent suggested by the County. . . . It is possible to sever the portion of the cyberbullying law that applies to adults and other entities because this would require a simple deletion of the phrase `or person’ from the definition of the offense. But doing so would not cure all of the law’s constitutional ills. . . . [T]he 1st Amendment protects annoying and embarrassing speech . . ., even if a child may be exposed to it . . .,  so those references would also need to be excised from the definitional section. And, the 1st Amendment forbids the government from deciding whether protected speech qualifies as `legitimate,’ as Albany County has attempted to do (see Snyder v. Phelps, 131 S.Ct. 1207 [2011], quoting Erznoznik v.Jacksonville, 422 U.S. 205 [1975]. . . .

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 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 the1st 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.

People v. Marquan M., supra.

Finally, the court explained that there is

undoubtedly general consensus that [Marquan M.’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, [Marquan M.] 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 1st Amendment may not give [him] 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.

People v. Marquan M., supra.

The Court of Appeals therefore held that “Albany County’s Local Law No. 11 of 2010 — as drafted — is overbroad and facially invalid under the Free Speech Clause of the 1st Amendment.”  People v. Marquan M., supra.

If you would like to read more about the case, check out the news stories you can find here and here.  As the second article notes, some of the Court of Appeals judges filed a dissenting opinion.  This article provides more information about the opinion and what the local legislators may do, as well as about the underlying conduct.

This post originally appeared on the CYB3RCRIM3 blog and is reproduced with permission and thanks.


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