This appeal involves a sixteen-year-old high school student that anonymously posted pictures of high school classmates and other adolescents with sexually explicit descriptions of their personal lives on Facebook. A police investigation revealed defendant Marquan M. as the poster. The defendant admitted to the online activity, and was charged under Albany County’s cyberbullying law. The defendant moved to dismiss on the grounds that the law was unconstitutionally violative of his free speech rights under the First Amendment to the United States Constitution. Albany County conceded that parts of the law was unconstitutional, but that the law was severable, and the Court could delete the violative language.
Judge Graffeo, writing for the majority, reasoned that the law was overbroad, facially unconstitutional, and was not severable. The majority found that the text of the law was so broad as to encompass speech by adults and corporate entities, although the purpose of the law was to remedy the detrimental effects of cyberbullying on school children. The majority also wrote that while it was possible for the Court to sever the offensive provisions, it would be an impermissible use of judicial authority to do so. The law would need significant modification in order to be valid, and would bear “little resemblance to the actual language of the law. Such a judicial rewrite encroaches on the authority of the legislative body that crafted the position . . . .” The majority thus held the cyberbullying law overbroad and facially invalid under the Free Speech Clause of the First Amendment as drafted.
Judge Smith, writing for the dissent, reasoned that the violative provisions of the law could be severed, and the remainder of the law would be constitutionally valid. The dissent agreed that the terms of the law were vague and overbroad but insisted that crossing them out was preferable. The dissent thought that the majority focused too much on poor draftsmanship of the law, and should have focused on what the dissent thought was the crux of the case: whether Albany County could constitutionally prohibit certain kinds of communication—namely, cyberbullying. The dissent would answer this question in the affirmative, arguing that while the First Amendment protects extremely obnoxious forms of speech, speech that is designed to inflict serious emotional injury is only permitted when directed at matters of public concern; here, there was only “private rage or spite.”
994 N.Y.S.2d 554 (N.Y. 2014)