The New York Court of Appeals in People v. Marquan M. has struck down a local law that criminalized cyberbullying. The court agreed with a high school student who had been charged under the law that the law was overbroad and therefore violated the First Amendment. The student had been charged with cyberbullying after he created a Facebook page to anonymously post photos of his classmates with offensive and graphic sexual comments.
The Albany County law defined cyberbullying as “any act of communicating… by mechanical or electronic means… with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse … or otherwise inflict significant emotional harm on another person.” Even though the court assumed that the “First Amendment permits the prohibition of cyberbullying directed at children,” the court found that the law was overbroad because it criminalized types of constitutionally protected speech that went far beyond the cyberbullying of children. The court stated that the law, as written, criminalized “any act of communicating … with no legitimate … purpose … with the intent to harass [or] annoy … another person.” The court observed that this could include telephone conversations, ham radio transmissions, or even telegrams. The court further stated that the law could criminalize speech such as an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult. The court concluded that this would violate the First Amendment, which protects annoying and embarrassing speech.
Rather than holding all regulation of cyberbullying unconstitutional, the court found only that the specific Albany County law at issue was poorly written and overbroad. According to the Cyberbullying Research Center, 20 states currently have cyberbullying laws, with others potentially in the works. Illinois expanded its school bullying prevention law in 2010 to include communications made electronically (i.e., cyberbullying). Effective June 26, 2014, the Illinois bullying prevention law also now includes a disclaimer that it is not intended to infringe upon First Amendment rights. While Illinois’ cyberbullying statute is narrower in scope than the law struck down in Marquan M., another statute more generally regulating “harassment through electronic communications” of both children and adults prohibits, among other things “[m]aking any comment, request, suggestion, or proposal which is obscene with an intent to offend” or “harassing” someone under 13 years of age. It remains to be seen whether other cyberbullying and e-harassment laws will withstand courts’ scrutiny.