The People v. Marquan M. / County of Albany

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This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 139

The People &c.,

Respondent,

v.

Marquan M.,

Appellant.

_______________________________

County of Albany,

Intervenor-Respondent.

Corey Stoughton, for appellant.

Thomas Marcelle, for intervenor-respondent County of

Albany.

Advocates for Children of New York et al., amici

curiae.

GRAFFEO, J.:

Defendant, a 16-year-old high school student,

anonymously posted sexual information about fellow classmates on

a publicly-accessible internet website. He was criminally

prosecuted for "cyberbullying" under a local law enacted by the

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Albany County Legislature. We are asked to decide whether this

cyberbullying statute comports with the Free Speech Clause of the

First Amendment.

I

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

Pacific Educ Rev 107 [2007]). 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

U.S. Youth, 285 Journal of the Am Med Assn 2094 [2001]). 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, supra 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

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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.

Despite these efforts, the problem of bullying

continues, and has been exacerbated by technological innovations

and the widespread dissemination of electronic information using

social media sites. The advent of the internet with "twenty-four

hour connectivity and social networking" means that "[b]ullying

that begins in school follows students home every day" and

"bullying through the use of technology can begin away from

school property" (L 2012, ch 102, § 1). Regardless of how or

where bullying occurs, it "affects the school environment and

disrupts the educational process, impeding the ability of

students to learn and too often causing devastating effects on

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students' health and well-being" (id.; see e.g. American

Psychiatric Assn, Resolution on Bullying Among Children & Youth

[2004]). The use of computers and electronic devices to engage

in this pernicious behavior is commonly referred to as

"cyberbullying" (see e.g. Education Law § 11 [8]; L 2012, ch 102,

§ 1; Simone Robers et al., Indicators of School Crime & Safety:

2012, at 44, Natl Ctr for Educ Statistics, U.S. Depts of Educ &

Justice [2013]). Unlike traditional bullying, victims of

cyberbullying can be "relentlessly and anonymously attack[ed]

twenty-four hours a day for the whole world to witness. There is

simply no escape".1

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"

1

Naomi Harlin Goodno, How Public Schools Can

Constitutionally Halt Cyberbullying, 46 Wake Forest L Rev 641,

641 (2011).

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(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

Legislature ha[d] failed to address th[e] problem" of "non-

physical bullying behaviors transmitted by electronic means"

(Albany County Local Law No. 11 of 2010, § 1). In 2010, the

Albany County Legislature adopted a new crime -- the offense of

cyberbullying -- which was defined 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"

(id. § 2)

The provision outlawed cyberbullying against "any minor or

person" situated in the county (id. § 3).2 Knowingly engaging in

this activity was deemed to be a misdemeanor offense punishable

by up to one year in jail and a $1,000 fine (see id. § 4). The

2

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" (Albany County Local Law No. 11 of 2010, § 2).

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statute, which included a severability clause (see id. § 7),

became effective in November 2010.

II

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.

After City Court denied defendant's motion, he pleaded guilty to

one count of cyberbullying but reserved his right to raise his

constitutional arguments on appeal. County Court affirmed,

concluding that the local law was constitutional to the extent it

outlawed such activities directed at minors, and held that the

application of the provision to defendant's Facebook posts did

not contravene his First Amendment rights. A Judge of this Court

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granted defendant leave to appeal (21 NY3d 1043 [2013]).

III

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

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Alvarez, __ US __, 132 S Ct 2537, 2544 [2012]; Brown v

Entertainment Merchants Assn., __ US __, 131 S Ct 2729, 2733

[2011]; People v Dietze, 75 NY2d 47, 52 [1989]). Outside of such

recognized categories, speech is presumptively protected and

generally cannot be curtailed by the government (see United

States v Alvarez, 132 S Ct at 2543-2544; Brown v Entertainment

Merchants Assn., 131 S Ct at 2734; United States v Stevens, 559

US at 468-469).

Yet, the government unquestionably has a compelling

interest in protecting children from harmful publications or

materials (see Reno v American Civil Liberties Union, 521 US 844,

875 [1997]; see also Brown v Entertainment Merchants Assn., 131

S Ct at 2736; see generally Bethel School Dist. No. 403 v Fraser,

478 US 675, 682 [1986]). Cyberbullying is not conceptually

immune from government regulation, so we may assume, for the

purposes of this case, that the First Amendment permits the

prohibition of cyberbullying directed at children, depending on

how that activity is defined (see generally Brown v Entertainment

Merchants Assn., 131 S Ct at 2735-2736, 2741; cf. United States v

Elonis, 730 F3d 321 [3d Cir 2013] [affirming conviction premised

on threatening Facebook posts], cert granted __ US __ [June 16,

2014]). Our task therefore is to determine whether the specific

statutory language of the Albany County legislative enactment can

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comfortably coexist with the right to free speech.3

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, 8 NY3d 70, 75 [2006]).

This type of facial challenge, which is restricted to cases

implicating the First Amendment, requires a court to assess the

wording of the statute -- "without reference to the defendant's

conduct" (People v Stuart, 100 NY2d 412, 421 [2003]) -- to decide

whether "a substantial number of its applications are

unconstitutional, judged in relation to the statute's plainly

legitimate sweep" (United States v Stevens, 559 US at 473

[internal quotation marks omitted]). A law that is overbroad

cannot be validly applied against any individual (see People v

Stuart, 100 NY2d at 421, citing Tribe, American Constitutional

Law § 12-32, at 1036 [2d ed 1988]). In contrast, a statute is

seen by the courts as vague if "it fails to give a citizen

adequate notice of the nature of proscribed conduct, and permits

arbitrary and discriminatory enforcement" (People v Shack, 86

NY2d 529, 538 [1995]). Hence, the government has the burden of

demonstrating that a regulation of speech is constitutionally

3

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.

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permissible (see United States v Playboy Entertainment Group, 529

US 803, 816-817 [2000]; cf. People v Davis, 13 NY3d 17, 23

[2009]).

A First Amendment analysis begins with an examination

of the text of the challenged legislation since "it is impossible

to determine whether a statute reaches too far without first

knowing what the statute covers" (United States v Williams, 553

US 285, 293 [2008]). In this regard, fundamental principles of

statutory interpretation are controlling. Chief among them is

the precept that "clear and unequivocal statutory language is

presumptively entitled to authoritative effect" (People v Suber,

19 NY3d 247, 252 [2012]; see e.g. People v Williams, 19 NY3d 100,

103 [2012]).

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 (see id. at 473-474; People v Barton,

8 NY3d at 75). 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

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county legislature justified passage of the provision based on

the detrimental effects that cyberbullying has on school-aged

children. 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.

The County admits that the text of the statute is too

broad and that certain aspects of its contents encroach on

recognized areas of protected free speech. Because the law

"imposes a restriction on the content of protected speech, it is

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invalid unless" the County "can demonstrate that it passes strict

scrutiny -- that is, unless it is justified by a compelling

government interest and is narrowly drawn to serve that interest"

(Brown v Entertainment Merchants Assn., 131 S Ct at 2738). For

this reason, the County asks us to sever the offending portions

and declare that the remainder of the law survives strict

scrutiny. What remains, in the County's view, is a tightly

circumscribed cyberbullying law that includes only three types of

electronic communications sent with the intent to inflict

emotional harm on a child: (1) sexually explicit photographs;

(2) private or personal sexual information; and (3) false sexual

information with no legitimate public, personal or private

purpose.

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, 230 NY 48, 62-63 [1920], cert denied 256 US 702 [1921]).

But departure from a textual analysis is appropriate only if the

statutory language is "fairly susceptible" to an interpretation

that satisfies applicable First Amendment requirements (People v

Dietze, 75 NY2d at 52; see e.g. United States v Stevens, 559 US

at 481). The doctrine of separation of governmental powers

prevents a court from rewriting a legislative enactment through

the creative use of a severability clause when the result is

incompatible with the language of the statute (see e.g. People v

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Dietze, 75 NY2d at 52-53; Reno v American Civil Liberties Union,

521 US at 884-885). And special concerns arise in the First

Amendment context -- excessive judicial revision of an overbroad

statute may lead to vagueness problems because

"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. City of

Houston, Texas 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 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.

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 (see Snyder v Phelps, __ US __,

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131 S Ct 1207, 1220 [2011], quoting Erznoznik v Jacksonville, 422

US 205, 210-211 [1975]; cf. People v Shack, 86 NY2d at 536-537).4

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

4

Contrary to the dissent's position, People v Shack (86

NY2d 529 [1995]) and People v Stuart (100 NY2d 412 [2003]) are

distinguishable because they addressed statutes that criminalized

conduct -- repeated telephone harassment and stalking -- without

regard to the content of any communication. Here, however, the

Albany County law facially allows law enforcement officials to

charge a crime based on the communicative message that the

accused intends to convey, as evidenced by the fact that

defendant was prosecuted because of the offensive words he wrote

on Facebook.

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the restrictions on speech contained in its cyberbullying law

survive strict scrutiny.

* * *

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.

Accordingly, the order of County Court should be

reversed and the accusatory instrument dismissed.

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People v Marquan M.

No. 139

SMITH, J. (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 13). 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 harass, annoy, threaten, abuse,

taunt, intimidate, torment, humiliate, or

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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, 86 NY2d 529, 538 [1995]

[holding valid a prohibition on the making of a telephone call

"with intent to harass, annoy, threaten or alarm another person .

. . with no purpose of legitimate communication"]; People v

Stuart, 100 NY2d 412, 428 [2003] [holding valid an anti-stalking

statute prohibiting a described course of conduct when engaged in

"for no legitimate purpose"]). We said in Shack:

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"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."

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 14 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

forbids the government from deciding whether protected speech

qualifies as 'legitimate'" (majority op at 13), but this begs the

central question of what speech is "protected" and what is not.

The Cyber-Bullying law prohibits a narrow category of valueless

and harmful speech when the government proves, among other

things, that the speaker had no legitimate purpose for engaging

in it. The speech so prohibited is not protected speech.

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

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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 ___, 131 S Ct 1207 [2011]) and

horrifyingly violent video games marketed to teenagers (Brown v

Entertainment Merchants Assn., 564 US ___, 131 S Ct 2729

[2011]). But Snyder itself makes clear that speech designed to

inflict serious emotional injury is protected only when, as in

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Snyder, the speech is directed at a matter of public concern:

"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 concern, as

determined by all the circumstances of the

case . . . . [R]estricting speech on purely

private matters does not implicate the same

constitutional concerns as limiting speech on

matters of public interest"

(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. Opinion by

Judge Graffeo. Chief Judge Lippman and Judges Read, Rivera and

Abdus-Salaam concur. Judge Smith dissents in an opinion in which

Judge Pigott concurs.

Decided July 1, 2014

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