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New York’s top court strikes down cyberbullying law

New York’s top court strikes down cyberbullying law

Local law as drafted “is overbroad and facially invalid under the Free Speech Clause of the First Amendment.”

The New York Court of Appeals on Tuesday ruled that a local law intended to protect children from cyberbullying violated the Free Speech Clause of the First Amendment because it was too broad.

From the Wall Street Journal:

New York’s top court struck down a law that made cyberbullying a crime, in what had been viewed as a test case of recent state and local statutes that target online speech.

The New York Court of Appeals, in a 5-2 ruling, held on Tuesday that the 2010 Albany County law prohibited a vast swath of speech “far beyond the cyberbullying of children,” in violation of the First Amendment.

The court’s ruling could stand as a guidepost for other state high courts hearing challenges to such laws, as well as for states and localities considering criminal penalties for cyberbullying, legal experts said. Besides Albany, four other New York counties and more than a dozen states, including Louisiana and North Carolina, have similar laws.

The 2010 law defined cyberbullying against “any minor or person” to mean “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.”

Writing for the majority, Judge Victoria Graffeo said, in part, “…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.”

In his dissent, Judge Robert Smith indicated certain provisions of the law – such as vague terms like “hate mail” – “can be readily severed from the rest of the legislation and that what remains can, without any strain on its language, be interpreted in a way that renders it constitutionally valid.”

The case stemmed from the 2011 arrest of a Cohoes High School student in Albany County, New York who had been charged under the county’s new cyberbullying law. The student had created a Facebook page in 2010 under the pseudonym “Cohoes Flame” on which he anonymously posted photographs of classmates, “with detailed descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information,” according to a court document.

The defendant argued that the statute violated his right to free speech under the First Amendment. He ultimately pleaded guilty to one count of cyberbullying after his motion to dismiss was denied, but, according to the court document, reserved his right to raise the constitutional arguments on appeal.

It was argued, not only in court but in many media articles as well, that the law as written was too broad. As Eugene Volokh points out, it also “wasn’t limited to offensive speech to a person, but included offensive speech about people.”

While the court’s majority praised the intent of the cyberbullying law, it emphasized the broad nature of the statute and further stated in its ruling:

There is undoubtedly general consensus that defendant’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, defendant 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 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. We therefore hold that 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.

There are some additional details that more specifically point out issues in the language of the law, so be sure to read the whole decision.

The problem of cyberbullying is one that I’ve addressed previously at Legal Insurrection and is not an easy black and white issue. As was pointed out in this court ruling and in previous discussions on the matter, the vehicle of the internet has complicated the problem of bullying in general. (Though I always caution, the internet or social media itself is not to blame, it is the people using that vehicle of communication that own the blame).

Bullying of course is not a new problem; it pre-dates the internet and social media. But it used to be that victims exposed to true bullying had some escape when not at school or the primary location where the bullying was occurring. However, the internet now places children in a situation where there may be no escape from the bullying. It can occur around the clock, every day, before an audience that is far larger than just those in the immediate physical vicinity. Even if a victim voluntarily takes action to remove him/herself from the internet or to ignore the postings in an attempt to escape the bullying, this does not necessarily stop the postings from occurring and propagating.

However, the other side of the issue is that cyberbullying can be difficult to specifically categorize. Words and their meaning can be subjective, so how does one determine when something rises to the level of cyberbullying? Even the term “cyberbullying” is overused and abused in many instances. How often even as adults, for instance, have we seen vigorous political debate on social media wrongly described as “cyberbullying” or “harassment”? While I have seen real instances of disturbing cyberbullying of children that warrant some sort of intervention, I have also seen instances of “someone said something I didn’t like on the internet” reported as cyberbullying as well. It all starts to get into slippery slope territory.

Even when new laws are crafted to address cyberbullying, would minors really understand them? Would their parents understand them? Would it be clear where the line is drawn before their words and actions are considered a crime? And if not, would those laws truly serve as a deterrent?

This is why I personally struggle with my own feelings on this issue every time it comes up. I don’t know what the solution is, but I believe that above all else, it is the culture that must change. Parents, most of all, have got to be engaged. They need to monitor what their kids are doing online and instill values in their children not to bully others.

I think cases like this one decided Tuesday in NY present a good opportunity for society to continue the discussion about how to address these sorts of issues. Because in the end, it will ultimately impact us all.

[Featured image: Wikimedia Commons]


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PersonFromPorlock | July 2, 2014 at 10:14 am

Again, I want to propose a ‘points system’ for legislators where they accumulate ‘points’ for passing laws later found to be unconstitutional. After a certain number have been accumulated, they are immediately barred from any and all government positions for at least several years.

Something similar might be applied to judges, as well. Misinterpret the Constitution and you’re on the slippery slope to private employment.

Hey, neither of these groups has had any problem with points systems for drivers!

“The 2010 law defined cyberbullying against “any minor or person….to mean any act of…..disseminating embarrassing…or sexual…with no legitimate…purpose…with the intent to…annoy…taunt….

The fine legislators actually thought that was a reasonable definition ? One justiciable under law ?

‘Taunting or annoying’ would be crimes ?

Every discussion board, blog, and ‘comments section’ on the Internet would have to be shut down ! A few million personal websites, too !

And 2 out of 7 Judges agreed ???? Wowser.

    I guess we have twin 5-year-old felons in my neighborhood then.

    “You’re ugly and your mother dresses you funny!”
    “Well YOU stink like toe fungus!!!”

    Book ’em both, Dano.

Slippery slope, indeed.

This stuff isn’t “bullying”, it’s taunting. Annoying, yes. Bullying, no.

In the classical era, bullying was chasing after the smaller kids and beating them up. It had the great virtue that it was obvious to even casual observers. No need for laws, lawyers, panels of judges; diagnosis was easy, even if remedies could prove elusive.

Taunting was verbal. It didn’t become bullying until it developed into a physical attack, however minor (such as surreptitious tripping, knocking off eyeglasses “by accident”, etc).

Obviously, bullying of this physical sort can’t be done remotely, so the concept of “cyber bullying” would have been a non-starter.

Now that the concept has been watered down so severely, physically harmless taunting or harassment counts as bullying. That still doesn’t mean that it’s a problem requiring heavy-handed intervention by the State.

An obvious analogy is the routine copying of a portion of a copyrighted item borrowed from the library, purely for personal reference after the item’s return. In the good old days, that didn’t have a name. Now it’s denounced as “piracy”. And that’s absurd. Things are getting crowded on that slippery slope.

Chronically puffing up harmless activity, or even annoying vicissitudes, into imaginary criminal status worthy of State-administered punishment is an obvious symptom of a totalitarian society.

In this particular case, the alarm bells all went off when I saw “hate mail” and “with no legitimate private, personal, or public purpose”. Gadzooks, it looks like county schools are taking a field trip to Animal Farm.

Political activists love the concept of “hate mail” or indeed “hate” anything, because anything critical of their “cause” they can denounce as “hate”. And, with the aid of laws like this one, when what they call “hate” can be codified as a crime, they can invoke the legal apparatus of the state to silence their opponents. It would be brilliant, were it not so obvious. There’s actually nothing wrong with hate. I hate boatloads of things – totalitarians, communists, fascists, racists, sexists, mosquitos, TV shows about vampires, etc – and am not generally considered a criminal, at least until the State decides to define me as one.

The line about “no legitimate … purpose” is potentially disastrous. It should never be up to the State to decide what is “legitimate”. That is what defines a “free” society. Give up even the illusion of a free society if the State can decide what has a legitimate purpose. A car which can possibly exceed the posted speed limit? Unrestricted internet access? Firearms? Elective surgery? A subscription to National Review? Hah. No legitimate purpose.

“present a good opportunity for society to continue the discussion about how to address these sorts of issues.”

How about this: Sticks and stones may break my bones but words will never hurt me. (My mom taught me that a long time ago and it is ever true today.)