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Albany County Cyberbullying Criminal Statute Overly Broad

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a dissent, determined that a statute passed by the Albany County Legislature, aimed at criminalizing cyberbullying, was too vague and broad to survive strict scrutiny under the First Amendment:

Based on the text of the statute at issue, it is evident that Albany County “create[d] a criminal prohibition of alarming breadth”… . 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 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.  People v Marquan M, 2014 NY Slip Op 04881, CtApp 7-1-14

 

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