from the good-intentions,-horrible-laws dept
New York's highest court has just struck down a cyberbullying law that went (as many do) past the point necessary and started walking all over First Amendment-protected speech. The wording of the law (particular to Albany County) defined cyberbullying in the following loose language.
1. "any act of communicating … by mechanical or electronic means,”
2. “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,”
3. ”with no legitimate private, personal, or public purpose,”Eugene Volokh points out, this wording is problematic, to say the least.
4. “with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.” As
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)[...] 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.The state's highest court found that this language was too broad and too harmful to protected speech to be allowed to continue.
Based on the text of the statute at issue, it is evident that Albany County "create[d] a criminal prohibition of alarming breadth" (United States v Stevens, 559 US at 474). The language of the local law embraces a wide array of applications that prohibit types of protected speech far beyond the cyberbullying of children. As written, the Albany County law in its broadest sense criminalizes "any act of communicating . . . by mechanical or electronic means . . . with no legitimate . . . personal . . . purpose, with the intent to harass [or] annoy. . . another person." On its face, the law covers communications aimed at adults, and fictitious or corporate entities, even though the county legislature justified passage of the provision based on the detrimental effects that cyberbullying has on school-aged children.The county (and the two dissenting judges) argued that the law could be "fixed" by tightening the language and restricting it solely to communications targeting children. All well and good, but the court wasn't inclined to believe this would fix the law, and further pointed out that separation of powers prohibit judges from rewriting laws on the fly in order to make them Constitutional again.
The county law also lists particular examples of covered communications, such as "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." But such methods of expression are not limited to instances of cyberbullying -- the law includes every conceivable form of electronic communication, such as telephone conversations, a ham radio transmission or even a telegram. In addition, the provision pertains to electronic communications that are meant to "harass, annoy . . . taunt . . . [or] humiliate" any person or entity, not just those that are intended to "threaten, abuse . . . intimidate, torment . . . or otherwise inflict significant emotional harm on" a child.
In considering the facial implications, 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.
We conclude that it is not a permissible use of judicial authority for us to employ the severance doctrine to the extent suggested by the County or the dissent. 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.The court followed this up by suggesting Albany legislators return to the drawing board and try crafting a better law with an eye on its Constitutional ramifications.
As we have recently made clear, the First Amendment protects annoying and embarrassing speech (see e.g. People v Golb, __ NY3d __, 2014 NY Slip Op 03426 [May 13, 2014]; People v Dietze, 75 NY2d at 52-53), even if a child may be exposed to it (see Brown v Entertainment Merchants Assn., 131 S Ct at 2736), 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.
It is undisputed that the Albany County statute was motivated by the laudable public purpose of shielding children from cyberbullying. The text of the cyberbullying law, however, does not adequately reflect an intent to restrict its reach to the three discrete types of electronic bullying of a sexual nature designed to cause emotional harm to children. Hence, to accept the County's proposed interpretation, we would need to significantly modify the applications of the county law, resulting in the amended scope bearing little resemblance to the actual language of the law. 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.The problem with many cyberbullying bills is exactly what was pointed out by the state court: the haste to do something "laudable" as a reaction to a problem tends to result in bad laws, badly written. Legislators are more concerned with moving forward quickly and eliminating possible loopholes than with addressing free speech concerns and end up roughly shoving aside Constitutional rights in their hurry to "fix" the problem.
Even if the First Amendment allows a cyberbullying statute of the limited nature proposed by Albany County, the local law here was not drafted in that manner.
This is only one of several problematic cyberbullying laws. Several are already in place (the state of New York has its own) and others are on their way. Very few of these will be able to survive the strict scrutiny of the court, but it generally takes a prosecutor's attempt to wield the newly-crafted, terrible-all-over law before it reaches the attention of those able to declare them unconstitutional. This usually means someone has spent a lot of time and money fighting charges resulting from a law that should never have been passed in the first place.