Lead Opinion
OPINION OF THE COURT
Defendant, a 16-year-old high school student, anonymously posted sexual information about fellow classmates on a publicly-
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Bullying by children in schools has long been a prevalent problem but its psychological effects were not studied in earnest until the 1970s (see Hyojin Koo, A Time Line of the Evolution of School Bullying in Differing Social Contexts, 8 Asia Pac Educ Rev 107 [2007], available at http://files.eric.ed.gov/fulltext/ EJ768971.pdf). Since then, “[b]ullying among school-aged youth” has “increasingly be[en] recognized as an important problem affecting well-being and social functioning,” as well as “a potentially more serious threat to healthy youth development” (Tonja R. Nansel et al., Bullying Behaviors among US Youth, 285 JAMA 2094 [2001], available at http:// jama.jamanetwork.com/article.aspx?articleid=193774). At its core, bullying represents an imbalance of power between the aggressor and victim that often manifests in behaviors that are “verbal (e.g., name-calling, threats), physical (e.g., hitting), or psychological (e.g., rumors, shunning/exclusion)” (id. at 2094; see Koo at 112). Based on the recognized harmful effects of bullying, many schools and communities now sponsor anti-bullying campaigns in order to reduce incidents of such damaging behaviors.
Educators and legislators across the nation have endeavored to craft policies designed to counter the adverse impact of bullying on children. New York, for example, enacted the “Dignity for All Students Act” in 2010 (see L 2010, ch 482, § 2; Education Law § 10 et seq.), declaring that our State must “afford all students in public schools an environment free of discrimination and harassment” caused by “bullying, taunting or intimidation” (Education Law § 10). In furtherance of this objective, the State prohibited discrimination and bullying on public school property or at school functions (see Education Law § 12 [1]). The Act relied on the creation and implementation of school board policies to reduce bullying in schools through the appropriate training of personnel, mandatory instruction for students on civility and tolerance, and reporting requirements (see Education Law § 13). The Act did not criminalize bullying behaviors; instead, it incorporated educational penalties such as suspension from school.
The Dignity for All Students Act did not originally appear to encompass cyberbullying, particularly acts of bullying that occur off school premises. As the ramifications of cyberbullying on social networking sites spilled into the educational environment, in 2012, the state legislature amended the Act to expand the types of prohibited bullying conduct covered by its provisions. It added a proscription on bullying that applied to “any form of electronic communication” (Education Law § 11 [8]), including any off-campus activities that “foreseeably create a risk of substantial disruption within the school environment, where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property” (Education Law § 11 [7]).
Before the addition of the 2012 amendments to the Dignity for All Students Act, elected officials in Albany County decided to tackle the problem of cyberbullying. They determined there was a need to criminalize such conduct because the “State
“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” (id. § 2).
The provision outlawed cyberbullying against “any minor or person” situated in the county (id. § 3).
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A month later, defendant Marquan M., a student attending Cohoes High School in Albany County, used the social networking website “Facebook” to create a page bearing the pseudonym “Cohoes Flame.” He anonymously posted photographs of high-school classmates and other adolescents, with detailed descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information. The descriptive captions, which were vulgar and offensive, prompted responsive electronic messages that threatened the creator of the website with physical harm.
A police investigation revealed that defendant was the author of the Cohoes Flame postings. He admitted his involvement and was charged with cyberbullying under Albany County’s local law. Defendant moved to dismiss, arguing that the statute violated his right to free speech under the First Amendment.
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Defendant contends 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 is unlawfully vague since it does not give fair notice to the public of the proscribed conduct. The County concedes that certain aspects of the cyberbullying law are invalid but maintains that those portions are severable, rendering the remainder of the act constitutional if construed in accordance with the legislative purpose of the enactment. Interpreted in this restrictive manner, the County asserts that the cyberbullying law covers only particular types of electronic communications containing information of a sexual nature pertaining to minors and only if the sender intends to inflict emotional harm on a child or children.
Under the Free Speech Clause of the First Amendment, the government generally “has no power to restrict expression because of its message, its ideas, its subject matter, or its content” (United States v Stevens, 559 US 460, 468 [2010] [internal quotation marks omitted]). Consequently, it is well established that prohibitions of pure speech must be limited to communications that qualify as fighting words, true threats, incitement, obscenity, child pornography, fraud, defamation or statements integral to criminal conduct (see United States v Alvarez, 567 US —, —,
Yet, the government unquestionably has a compelling interest in protecting children from harmful publications or materials
Challenges to statutes under the 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 (People v Barton,
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,
It is true, as the County urges, that a court should strive to save a statute when confronted with a Free Speech challenge (see e.g. People ex rel. Alpha Portland Cement Co. v Knapp,
“the statutory language would signify one thing but, as a matter of judicial decision, 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 ; see e.g. Houston v Hill,482 US 451 , 468-469 [1987]).
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
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. 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. Albany County therefore has not met its burden of proving that the restrictions on speech contained in its cyberbullying law survive strict scrutiny.
Accordingly, the order of County Court should be reversed and the accusatory instrument dismissed.
Notes
. Naomi Harlin Goodno, Houi Public Schools Can Constitutionally Halt Cyberbullying, 46 Wake Forest L Rev 641, 641 (2011).
. The term “person” was broadly defined to include “any natural person, individual, corporation, unincorporated association, proprietorship, firm, partnership, joint venture, joint-stock association, or other entity or business organization of any kind” (Local Law No. 11 [2010] of County of Albany § 2).
. We offer no opinion on whether cyberbullying should be a crime or whether there are more effective means of addressing this societal problem outside of the criminal justice system.
. Contrary to the dissent’s position, People v Shack (
Dissenting Opinion
(dissenting). Albany County has conceded that certain provisions of its Cyber-Bullying law are invalid. It seems to me that those provisions 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 operative provision of the law says simply: “No person shall engage in cyber-bullying against any minor or person in the County of Albany.” The County does not defend the law as it applies to adults, and the majority acknowledges that we may consider the statute as if the words “or person” were deleted (majority op at 11). But the majority finds irreparable constitutional flaws in the definition of Cyber-Bullying, which is as follows:
“ ‘CYBER-BULLYING’ shall 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*13 harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.”
The County concedes that the words “embarrassing” and “hate mail” are “vague and thus unenforceable” (brief of intervenor-respondent Albany County [County Brief] at 8 n 4). It argues, correctly I think, that these terms can be dealt with in the same way as the reference to “person” in the operative section: simply by crossing them out. Once these deletions are made, I see nothing in the law that renders it unconstitutional.
The majority, it seems, is troubled by two other aspects of the definition of “Cyber-Bullying”: the requirement that the forbidden communications be made “with no legitimate private, personal, or public purpose”; and the series of verbs — “harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate”— that precedes the words “or otherwise.” Neither requires us to invalidate the law.
I grant that the words “no legitimate . . . purpose” are not remarkable for their precision. We have twice held, however, that they are clear enough to withstand a constitutional challenge for vagueness (People v Shack,
“the phrase ‘no purpose of legitimate communication’ . . . notwithstanding its subjective quality, would be understood to mean the absence of expression of ideas or thoughts other than threats and/or intimidating or coercive utterances.” (86 NY2d at 538 .)
Similarly here, the phrase “no legitimate purpose” should be understood to mean the absence of expression of ideas or thoughts other than the mere abuse that the law proscribes.
It is true, as the majority says (majority op at 11 n 4) that the criminal conduct at issue in Shack and Stuart was different from the conduct at issue here — but that does not make the words “no legitimate purpose” any more or less vague. The majority is also correct in saying that “the First Amendment
As for the list of verbs beginning with “annoy” and ending with “humiliate,” it is fair to read them, as the County urges, as “a non-exhaustive list of ways that the wrongdoer may formulate his or her intent to inflict emotional harm on the victim” (County Brief at 8). In other words, the acts within the scope of the Cyber-Bullying law — disseminating sexually explicit photographs or private, personal, false or sexual information— are prohibited only where they are intended to “inflict significant emotional harm” on the victim, and the verbs merely serve as examples of ways in which significant emotional harm may be inflicted. That is not the only possible way to read the text of the law, but it is a perfectly reasonable way — indeed, the word “otherwise” seems to signal that the verbs preceding it are only illustrative. So read, the law does not prohibit conduct intended to harass, annoy, threaten or the like unless the actor specifically intended “significant emotional harm.” I do not find such a prohibition to be unconstitutionally vague or overbroad.
In short, I think the majority makes too much of what it sees as flaws in the draftsmanship of the Cyber-Bullying law. The crux of the case, in my view, is whether Albany County constitutionally may do what it is trying to do — to prohibit certain kinds of communication that have no legitimate purpose and are intended to inflict significant emotional injury on children. The answer to this question is not self-evident. The First Amendment protects some extremely obnoxious forms of speech, including insults offered to a dead soldier at his funeral (Snyder v Phelps, 562 US —,
“Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private*15 concern, as determined by all the circumstances of the case. . . . [Restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest” (562 US at —,131 S Ct at 1215 ; see also Hustler Magazine, Inc. v Falwell,485 US 46 , 53 [1988] [speech about a “public figure” is constitutionally protected even if uttered with intent to cause emotional distress because regulation of emotionally harmful speech about public figures would chill debate on public matters]).
It is thus clear that the emotional abuse involved in Snyder would not have been constitutionally protected if, like Marquan’s remarks about his fellow students, it had referred to no matter of public importance and had been uttered purely out of private rage or spite. And the victims of the abuse in Snyder were adults; in that respect, the present case is a fortiori. The Albany County Cyber-Bullying law is valid.
Order reversed and accusatory instrument dismissed.