Criminal Cyberbullying Statute Violates First Amendment–New York v. Marquan
Albany County enacted a criminal cyberbulling statute, which defined cyberbulling 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. [pdf]
Marquan M., a high school student in Albany County, created a Facebook page using a pseudonym.
He posted photographs of his classmates with “detailed descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information.” His postings were sufficiently offensive that the court notes that he received threats. He was charged under the cyberbullying statute and pled guilty while reserving the right to appeal.
On appeal, even the county conceded that parts of the statute were unconstitutional. Nevertheless, the county argued that the statute could be blue-penciled to apply only to communications containing the sexual details of minors that are intended to inflict emotional harm.
The court says that the speech in question does not fall under any of the well-recognized First Amendment exceptions. On the other hand, it notes that “cyberbulling is not conceptually immune from government regulation.” The difficulty is coming up with a statutory definition that comports with the First Amendment and determining how the Albany statute compares with this definition.
The court says that the statute fares poorly. It prohibits communications that are intended to “harass or annoy . . . with no legitimate personal purpose.” This could cover communications aimed at adults or corporations—i.e., it was not limited to communications aimed at minors. The law also is quite broad regarding the types of communications that are covered—a private phone call, ham radio transmission, or even a telegram could fall under the statute:
the provision would criminalize a broad spectrum of speech outside the popular understanding of cyberbulling, including for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult.
The court rejects the county’s argument that the court should narrow the statute to limit to (1) explicit photographs; (2) private or personal sexual information; and (3) “false sexual information.” While the court could narrow the statute significantly by limiting its application to minors, this wouldn’t solve all of the problems with the statute. Among other things, annoying and embarrassing speech is protected, even when directed at minors. The legislature also cannot be in the business of determining what is “legitimate” speech.
A dissenting judge says that the prohibition of speech made with “no legitimate purpose” has been previously upheld by New York courts. As to the “annoy” and “embarrass” aspects of the statute, the court says these are merely illustrative ways in which someone can demonstrate their intent to cause emotional harm. Thus, the dissenting judges say that mere annoyance or embarrassment is not covered, unless there is intent to cause “significant emotional harm.” Citing Snyder v. Phelps, the dissent says that speech that causes emotional harm is only protected when it is directed at a matter of public concern.
The Albany County drafters obviously overreached, or perhaps were just careless. There’s a lot wrong with that statute: (1) it applies to pure speech and does not require a course of conduct; (2) although intended to be limited to minors, the statute applies to speech directed at anyone; and (3) the inclusion of verbs such as annoy, taunt, and torment.
Perhaps the legislature will try again by limiting the statute in the ways highlighted by the court. That would raise a few questions. First, can the state limit speech that is directed at minors and that is intended to cause “significant emotional harm”? (Some statutes and cases specify “serious” emotional harm.) Second, do the enumerated examples of sexual-oriented content work as a proxy for what speech is most egregious (or ‘harmful’) in this context? Third, should the state tie the speech to the school grounds in some way? These are tough questions, and I don’t envy any legislature that has to grapple with them.
The big challenge is, of course, distinguishing between taunts and banter between friends (which in the old days may take place in a phone conversation, and now very likely involves an app) and among groups, and something more serious. Albany County seemed to have a leaning towards sexual-themed content. Even their three categories of sexual-related speech seem over-inclusive, and would capture statements that traditionally have been tolerated in schools and as between minors (e.g., a true statement that two individuals had a relationship; someone ranting about his or her ex-boyfriend).
This brings to mind the parallels between attempts to tackle revenge porn and attempts to deal with bullying. Both laws seek to proscribe speech that causes serious emotional harm, but both types of statutes face the same challenge of how to delineate this speech narrowly. Setting the uncertainty of whether the First Amendment reaches pure expression that causes emotional distress aside, there are two possible approaches: (1) carving out certain types of content as per se causing emotional distress, or (2) drafting a statute that covers any content that intends to and actually causes such distress. Neither approach is particularly satisfying, but it remains to be seen whether courts prefer one over the other.
There’s also the question of whether the legislature should tackle the question of “cyber” bullying separate from traditional bullying. Even the majority cites to reasons why cyberbullying is unique, but I wasn’t totally persuaded that cyberbullying is often perpetrated by far-flung strangers, versus friends in the community. To the extent there are rules to combat traditional bullying, shouldn’t those rules apply to cyberbullying as well? And to the extent there are no such rules, this points to a possible under-inclusiveness problem.
(There’s also the question of whether certain types of bullying is more harmful–i.e., bullying based on race, gender, religion, sexual orientation, etc. There are some First Amendment hurdles to singling these out as well.)
Given the definitional challenges, I don’t see much of a justification for criminal penalties in this context. As we’ve seen in numerous grey area cases we’ve blogged about, stalking and cyberbullying statutes tend to be applied in ways that don’t often make sense, particularly when it comes to minors. (See, e.g., Pennsylvania v. Cox; In re Kaleb K.) Do we really want to further add to the arsenals of prosecutors here?