The First Amendment or Regulating Cyber-bullying — Do We Have to Choose?

As long as schools have been around, bullying has existed. Now that the internet and social media are prevalent in the lives of children still learning right and wrong, they’ve become another means by which bullying can happen.

But that whole free speech concept on which our country was founded makes enacting laws to regulate cyber-bullying more challenging than it appears.

Cyber-bullying, or using social media to spread malicious or false information about others, is just one of the newest problems school administrators have to deal with as a result of students’ increased use of technology. And, although the relationships are formed at school, cyber-bullying doesn’t stop when the bell rings.

The advent of the internet with “twenty-four hour connectivity and social networking” means that “[b]ullying that begins in school follows students home every day” and “bullying through the use of technology can begin away from school property.” People v. Marquan M., 2014 WL 2931482 (N.Y. 2014).

At issue in Marquan M. was Albany County’s cyber-bullying law that carried a sentence of up to 1 year in jail and a $1,000 fine. The law prohibited:

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 or another person.

In this case, a 15-year-old student was arrested and convicted of violating the law when he anonymously posted photographs of high-school classmates and other adolescents to a Facebook page

with detailed descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information. The descriptive captions, which were vulgar and offensive, prompted responsive electronic messages that threatened the creator of the website with physical harm.

On appeal, the student asked the Court to determine whether the Cyber-bulling law violated the first amendment. The Court acknowledged that the First Amendment permits the prohibition of cyber-bullying directed at children, “depending on how that activity is defined.”

And while the cyber-bulling law clearly covered the defendant’s conduct in this case — conduct that the Court called “repulsive and harmful” — the Court of Appeals found it to be overreaching in its efforts to combat bullying because it was not limited to the audience or activities that would be specific to cyber-bullying. Instead, the law covered any form of electronic communications including “telephone conversations, a ham radio transmission or even a telegram” that was intended to harass or intimidate another person, not just a child.

The County even acknowledged that portions of the statute went too far afield, but argued for severability. The court held that crossing out portions of the statute’s language would not cure it’s constitutional problems and held it invalid on its face, thereby reversing defendant’s conviction and allowing him to essentially get away with it.

Fair?

Sure doesn’t seem like it. But the constitutionality of legislation is the cornerstone of our justice system.

So, what do we do?

This issue is just another example of the laws being behind the times when it comes to ESI. We need lawyers who understand ESI providing input on the drafting of legislation so it can be enforced instead of thrown out and legislatures being required to start over.

There are two other very interesting parts of the case that bear consideration — Judge Smith’s dissent and New York’s amendments to the Dignity for All Students Act, passed after Albany’s law, that directly addressed cyber-bullying. Both signal the issues and challenges that must be met in legislating against cyber-bullying.

Judge Smith’s dissent highlights several of the issues that legislatures will have to grapple with as they seek to pass and enforce cyber-bullying legislation. Judge Smith took issue with the inability to sever the terms of the Albany law and found that simple revisions could make the law facially valid. But, while he too remains concerned with First Amendment law, in the case of cyber-bullying he believes that restricting speech on private matters (as happened here) does not run afoul of the 1st Amendment:

The crux of the case, in my view, is whether Albany County constitutionally may do what it is trying to do—to prohibit certain kinds of communication that have no legitimate purpose and are intended to inflict significant emotional injury on children. The answer to this question is not self-evident. The First Amendment protects some extremely obnoxious forms of speech, including insults offered to a dead soldier at his funeral (Snyder v. Phelps,562 U.S. ––, 131 S.Ct. 1207 [2011] ) and horrifyingly violent video games marketed to teenagers (Brown v. Entertainment Merchants Assn., 564 U.S. ––, 131 S.Ct. 2729 [2011] ). But Snyder itself makes clear that speech designed to inflict serious emotional injury is protected only when, as in Snyder, the speech is directed at a matter of public concern . . . “[R]estricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest”.

New York’s amendments to the Dignity for All Students Act are just one example of action that districts have taken to protect students from cyber-bullying. But commiserate with their power, those amendments

[R]ely on the creation and implementation of school board policies to reduce bullying in schools through the appropriate training of personnel, mandatory instruction for students on civility and tolerance, and reporting requirements. The Act did not criminalize bullying behaviors; instead, it incorporated educational penalties such as suspension from school.

Judge Smith’s dissent and the language of New York’s Act amendments will provide some guidance for legislators grappling construction of cyber-bullying provisions. The key will be to including knowledgeable attorneys or professionals who can question the draft language BEFORE it gets to the court.

The full case digest is available in  eDiscovery Assistant™ in the Case Law section. Just type the first name into the search box or you can filter to it by jurisdictions or tags.

 

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