Tagged: bullying

NY Court of Appeals Holds Unconstitutional a Law Prohibiting Cyberbullying

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

The internet’s opportunities for communication can be, and in most cases are, beneficial. But some persons may maliciously utilize such opportunities to expose others to embarrassment, and the harm inflicted can be extremely damaging, especially when such communications expose minors to severe embarrassment relating to sexual matters. Such communications have come to be termed “cyber-bullying.”

With instances of cyber-bullying increasing, public authorities have responded with varying measures, including criminalization, in an effort to curb such communications. But because the communications at issue are speech, their restriction must survive constitutional review under the First Amendment’s free speech clause.

New York State has a prior history of protecting minors against the damaging effects of sexual communications. In New York v. Ferber, 458 U.S.747 (1982), the U.S. Supreme Court unanimously upheld, against a Free Speech challenge, a New York statute prohibiting persons from knowingly promoting a sexual performance by a child under the age of 16 by distributing material which depicted such a performance (reversing a decision of the N.Y. Court of Appeals).

On July 1, 2014, by a 5-2 vote the N.Y. Court of Appeals struck down as violating the First Amendment a law against cyber-bullying enacted by the Albany County legislature. On appeal, the County conceded that there was wording in the law that was constitutionally overbroad, but argued that, pursuant to accepted severability practice utilized in constitutional interpretation, the Court could sever the offending words and leave in place the remaining portions of the law as constitutionally valid and thus affirm the misdemeanor conviction of an Albany County high-school student who anonymously posted on Facebook photographs and detailed information about the alleged sexual practices and predilections of his classmates.

Thus, the key issue on appeal was the application of proper judicial employment of the severability doctrine, which allows a court to excise unconstitutional elements of a law in order to preserve constitutionally valid elements that may sustain conviction for the crime charged. While the Court majority acknowledged that some elements of the law’s text could be appropriately severed, other portions could not, without leaving in place other issues potentially raising further First Amendment problems.

Judge Robert Smith, in a dissenting opinion joined by Judge Pigott, stated that, with application of Albany County’s concessions for excision, the law passed constitutional muster. On Judge Smith’s reading of the applicable precedents, the defendant’s “speech designed to inflict serious emotional injury is protected only” if the defendant’s Facebook posting was “directed at a matter of public concern,” which was clearly not present in the case before the Court.

Cases:

New New York Legislation Against Cyberbullying

BY: Jessica Piperis

Bullying has been prevalent on school grounds even before the idea of the Internet or social media ever came into being. Today, bullying doesn’t stop at the playground: it follows children home by lurking on Facebook, Twitter, Instant Message, and the like. It seems never to go away and children are completely surrounded, twenty four hours a day, seven days a week.  One can imagine how overwhelming this type of pressure must feel.

On July 9, 2012, Governor Andrew Cuomo signed a new piece of legislation with the aim of combating cyberbullying in schools. Section 13 of New York State’s Education Law is meant to “strengthen a school’s response to harassment and bullying” according to Cuomo’s released press statement. This new law contains three provisions to help protect students: (1) schools are required to act in cases of cyberbullying even if it happens off school grounds; (2) school districts are required to create protocols that deal with cyberbullying; and (3) current school employees, as well as future employees are required to have training in identifying and preventing cyberbullying. The new law creates a platform for schools to raise awareness within schools through policies and procedures.

While this new piece of legislation purports to take a legal stand against cyberbullying, in reality it fails to prevent actual cyberbullying. That is, while the law requires educators to take action against cyberbullying, it only requires action after the bullying has already occurred.  It thus fails to address the issue of educating all students and especially those students who are participating in cyberbullying.  Education can and should begin at a very young age within the school system and should include the education of parents.  And, in order to create real deterrence, it may be necessary to create cyberbullying as a crime.

To be sure, the new law is a step in the right direction and it shows that the legislature has begun to tackle a difficult, but very real issue. However, the legislature has failed to make any real change by creating this law because it does not address the issue beyond the realm of the educational system.

Section 13 of New York State’s Education Law will go into effect July 1, 2013.