The Washington PostDemocracy Dies in Darkness

New York’s highest court strikes down cyber-bullying law

Albany County (New York) made it a crime to engage in “cyber-bullying” against “any minor or person”; cyber-bullying was defined as (bullets and numbered items added):

  1. “any act of communicating … 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,”
  2. ”with no legitimate private, personal, or public purpose,”
  3. “with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.”

This wasn’t limited to offensive speech to a person, but included offensive speech about people; and it wasn’t limited to speech that falls within a First Amendment exception (such as threats, or knowing defamatory falsehoods). As I’ve argued before, including about a similar proposed Suffolk County ordinance and other proposed laws, this sort of law is far too broad and vague, and is indeed unconstitutionally overbroad. This is clearest about “hate mail,” but is also true about other items as well. Note, for instance, that the ordinance criminalizes “disseminating … personal … information” — even if it’s not “false” or “sexual” — about any person, if it’s done “with the intent to … annoy …, abuse, [or] taunt” and “with no legitimate private, personal, or public purpose,” whatever that might mean.

I’m therefore happy to report that New York’s highest court just struck down the ordinance, even as limited to minors (People v. Marquan M. (N.Y. July 1, 2014) (5-to-2)). Here’s an excerpt from the majority (paragraph break added):

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.
As we have recently made clear, the First 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 First Amendment forbids the government from deciding whether protected speech qualifies as “legitimate,” as Albany County has attempted to do.

The two dissenting judges would have upheld the law, by striking out “or person” (thus limiting to minors), removing the “embarrassing … photographs” and “hate mail,” and defining “no legitimate private, personal, or public purpose” as “the absence of expression of ideas or thoughts other than the mere abuse that the law proscribes.”

But they didn’t explain how factfinders would distinguish “mere abuse” from, say, a Facebook post — or an e-mail to a friend — angrily condemning (1) an ex-boyfriend who cheated on you, or (2) the girl whom he cheated with, or (3) the classmate whom you saw cheating on a test. All three examples might qualify as “disseminating private, personal, … or sexual information,” “with the intent to … inflict significant emotional harm” in the form of shame or feeling of social ostracism. The question then is whether a factfinder would find these as “mere abuse,” something that strikes me as pretty hard to predict in a situation like this.

For more on this issue, see my One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyberstalking,” 107 Nw. U. L. Rev. 731 (2013). Thanks to Keith Kaplan for the pointer.