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Cyberbullying And The First Amendment Freedom Of Speech Clause


cyberbullying and freedom of speech clause best appeals convictions

People v.  Marquan

2014 NY Slip Op 04881

Court Of Appeals

Decided on July 1, 2014

Summary: Defendant, a 15 year-old high school student, posted sexual information about fellow classmates on the Internet. He was prosecuted criminally for “cyberbullying” under Albany County’s local law No. 11 in Albany City Court. Defendant moved to dismiss his conviction arguing that the statute violated his right to free speech rights under The U.S Constitution’s First Amendment. The City Court denied that motion and Defendant pleaded guilty to one count of cyberbullying. Defendant reserved his right to raise these Constitutional arguments on appeal.

The Albany County Court affirmed and held that the Local Law was Constitutional to the extent that it outlawed such activities directed at minors. The County Court found that the County Law did not infringe upon his First Amendment Rights. The County Court granted Defendant leave to appeal to The Court Of Appeals. Defendant argues that Albany County’s cyberbullying law violates the Free Speech Clause of the First Amendment because it is overbroad in that it includes a wide array of protected expression, and, that it does not give notice to the public of the proscribed conduct.

The Court Of Appeals held that although the First Amendment may not give Defendant 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. The Court held that Albany County’s Local Law No. 11 is overbroad and facially invalid under the Free Speech Clause of the First Amendment. The Court Of Appeals reversed the order of the County Court and reversed the conviction.

See Also: The Brady Rule And Civil Suits Against Police Officers

Issue: Whether Albany County’s Local Law No.11 is unconstitutionally overbroad

Holding: Yes. The New York Court Of Appeals held that Albany County’s Local Law No.11 is overbroad and facially invalid under the Free Speech Clause of the First Amendment.  The Government generally does not have the power to restrict expression because of its message, its ideas, its subject matter, or its content.  The Court Of Appeals held that prohibitions of pure speech may be limited if they qualify as fighting words, true threats, incitement, obscenity, child pornography, fraud, defamation, or statements integral to criminal conduct.

Cyberbullying is not conceptually immune from Government regulation. The County admits that the text of the statute is too broad and that certain aspects of its contents encroach on recognized areas of protected free speech. The Court of Appeals held that the law imposes a restriction on the content of protected speech under the First Amendment. It is invalid unless the County can demonstrate that it passes strict scrutiny, that is, unless it is justified by a compelling Government’s interest and is narrowly drawn to serve that interest.

The New York Court of Appeals held that Defendant’s language in the Facebook post by posting photographs of students with detailed descriptions was reasonably protected and cannot be limited by the Government.

Facts: Defendant, Marquan, a student at Cohoes High School in Albany County, used the social networking website “Facebook” to create a page where he anonymously posted photographs of his classmates. Defendant posted detailed descriptions of their alleged sexual practices and predilections, sexual partners, and other personal information. A Police investigation revealed that Defendant was the author of the ‘Cohoes Flame’ postings. Defendant was charged with “cyberbullying” under Albany County’s Local Law No.11.  Defendant moved to dismiss his conviction arguing that the statute violated his right to free speech under the First Amendment.

The City Court denied that motion and Defendant pleaded guilty to one count of cyberbullying but reserved his right to raise his constitutional arguments on appeal. The Albany County Court affirmed and held that the local law was constitutional to the extent that it outlawed such activities directed at minors, and Defendant’s Facebook posts were within his First Amendment Rights. The County Court granted leave to appeal to The Court Of Appeals.

Defendant argues that Albany County’s cyberbullying law violates the Free Speech Clause of the First Amendment because it is overbroad in that it includes a wide array of protected expression, and it does not give notice to the public of the proscribed conduct.

The New York Court Of Appeals held that although the First Amendment may not give Defendant 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. The Court held that Albany County’s Local Law No. 11 is overbroad and facially invalid under the Free Speech Clause of the First Amendment. The Court Of Appeals reversed the order of the County Court and dismissed the accusatory instrument.

Legal Analysis: The New York Court Of Appeals reversed and held that Albany County’s Local Law No. 11 is overbroad and facially invalid under the Free Speech Clause of the First Amendment. The Local Law criminalizes any act of communicating by mechanical or electronic means with no purpose and with the intent to harass or annoy another person. The law includes every conceivable form of electronic communication. Albany County admits that the text of their statute is too broad and that certain aspects of its content encroach on recognized areas of protected speech under the First Amendment.

A First Amendment analysis begins with an examination of the text of the challenged legislation since it is impossible to determine whether a statute reaches too far without first knowing what the statute covers. A law that is overbroad cannot be validly applied against any individual challenges to statutes under the Free Speech Clause. Challenges to statutes under thre 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 First Amendment.

             Based on the statute at issue, The New York Court Of Appeals found that it was evident that Albany County created a criminal prohibition of alarming breadth and the language of the local law embraces a wide array of applications that prohibit types of protected speech far beyond cyberbullying of children.

             What remains 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:

A)   sexually explicit photographs

B)   private or personal sexual information, or,

C)   false sexual information with no legitimate public, personal or private purpose

The New York  Court of Appeals held that the departure from a textual analysis is appropriate only if the statutory language is ‘fairly susceptible’ to an interpretation that satisfies applicable First Amendment requirements. Special concerns arise in the First Amendment context; such excessive judicial revision of an overbroad statue may lead to vagueness problems because the statutory language would signify one thing but, as a matter of judicial revision, would stand for something entirely different. Under those circumstances, persons of ordinary intelligence reading the law could not know what it actually meant. People v. Dietze, 75 NY2D at 53. 

       The New York Court of Appeals concluded that the First Amendment protects annoying and embarrassing speech, even if a child may be exposed to it. The First Amendment also forbids the Government from deciding whether protected speech qualifies as legitimate as the Albany County local law attempted to do.

          It is undisputed that the statute was motivated by the laudable public purpose of shielding children from cyberbullying. The text of the local law does not propose an Internet to restrict to the three discrete types of electronic bullying of a sexual nature designed to cause emotional harm to children. 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.

          Albany County did not meet its burden of proving that the restrictions on speech contained in its cyberbullying Local Law No.11 survive ‘strict scrutiny’. The Court reversed the County Court’s conviction and dismissed the accusatory insrtument.


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