N.Y. High Court Rejects Local Law Against Cyberbullying

By Mark Walsh — July 02, 2014 2 min read
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New York state’s highest court has struck down a local law that made “cyberbullying” a crime, and threw out the conviction of a high school student who had posted photographs of his classmates on Facebook with vulgar descriptions of their alleged sexual practices.

The New York Court of Appeals ruled 5-2 that the cyberbullying law passed by Albany County in 2010 was overbroad and facially invalid under the First Amendment of the U.S. Constitution.

“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,” Judge Victoria A. Graffeo wrote for the majority in The People v. Marquan M.

The state high court said the county law as written was much too broad to survive First Amendment scrutiny, covering communications aimed at adults and corporations, “even though the county legislature justified passage of the provision based on the detrimental effects that cyberbullying has on school-aged children.”

Graffeo said the court could not accept the county’s request that it interpret the law as only applying to three types of electronic communications sent with the intent to inflict emotional harm on a child: sexually explicit photographs; private or personal sexual information; and false sexual information with no legitimate purpose.

That would give the law a scope not recognizable by the text, and that would mean people would not know what constituted speech that violated the law, she said.

The case involved a 15-year-old high school student at Cohoes (N.Y.) High School who was charged with making the sexually vulgar posts about some of his classmates and other teenagers. The student pleaded guilty to one count of cyberbullying but reserved his right to appeal on free speech grounds.

“There is undoubtedly general consensus that defendant’s Facebook communications were repulsive and harmful to the subjects of his rants,” the majority said. “Unlike traditional bullying, which usually takes place by a face-to-face encounter, defendant used the advantages of the Internet to attack his victims from a safe distance, 24 hours a day, while cloaked in anonymity.”

Still, because it invalidated the law on its face, the New York high court did not rule on whether the student’s speech was protected or whether Albany County’s proposed limiting interpretation would have passed muster.

The court noted that New York state amended its school anti-bullying law in 2012 to encompass cyberbullying, including any off-campus activities that “foreseeably create a risk of substantial disruption within the school environment, where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property.” The court’s ruling on the Albany County law does not address whether the state law passes muster.

The dissenters said the local law could have been salvaged by accepting the country’s proposed limiting principles and by crossing out a few words in the law’s broad definition.

“I think the majority makes too much of what it sees as flaws in the draftsmanship of the cyber-bullying law,” the dissent says.

“Speech designed to inflict serious emotional injury is protected only when ... the speech is directed at a matter of public concern,” such as the protests of military funerals aimed at U.S. policy on Iraq, which were upheld by the U.S. Supreme Court in Snyder v. Phelps, the dissent added. The student’s speech in this case would not have met that standard, it said.

A version of this news article first appeared in The School Law Blog.