One month after Albany County passed its anti-cyberbullying law, an anonymous teenager obligingly posted “Cohoes Flame” — a Facebook page of photos of his classmates along with crude “descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information.” An investigation revealed the teen’s identity; he was arrested and charged with a misdemeanor under the new law. But — even though the posts were intended to cause emotional harm — the new cyberbullying law was so broad that it was held unconstitutional in People v. Marquan M., decided Tuesday by the New York Court of Appeals.
The People tried to rescue the law by claiming, despite its broad language, that it could be severed to apply only to “(1) sexually explicit photographs; (2) private or personal sexual information; and (3) false sexual information with no legitimate public, personal or private purpose.” Apparently, the People believed those categories — unlike, say, depictions of extreme violence or hate speech — could be criminalized. Of course, the first category might constitute child pornography and therefore already be criminal. But revealing private information or even making up false sexual information has rarely been held to be unprotected by the First Amendment. In any case, the court disagreed that the law could be parsed out that way: “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.” It was therefore overbroad and unconstitutional.