Criminal Cyberbullying Statute Violates First Amendment–New York v. Marquan

8 12 2014

Albany County enacted a criminal cyberbulling statute, which defined cyberbulling 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. [pdf]

Marquan M., a high school student in Albany County, created a Facebook page using a pseudonym.


He posted photographs of his classmates with “detailed descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information.” His postings were sufficiently offensive that the court notes that he received threats. He was charged under the cyberbullying statute and pled guilty while reserving the right to appeal.

On appeal, even the county conceded that parts of the statute were unconstitutional. Nevertheless, the county argued that the statute could be blue-penciled to apply only to communications containing the sexual details of minors that are intended to inflict emotional harm.

The court says that the speech in question does not fall under any of the well-recognized First Amendment exceptions. On the other hand, it notes that “cyberbulling is not conceptually immune from government regulation.” The difficulty is coming up with a statutory definition that comports with the First Amendment and determining how the Albany statute compares with this definition.

Case citation: People v. Marquan M., 2014 WL 2931482 (N.Y. Ct. App. July 1, 2014)


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