Bullying in general, and cyberbullying in particular, have been the focus of considerable legislative activity in recent years. What was once the exclusive province of schools and school districts, the task of addressing bullying in schools has moved from detentions and suspensions to legislation and criminalization.  This trend was illustrated by a recent New York Court of Appeals decision, People v. Marquan M., where New York’s highest court ruled that a county law criminalizing cyberbullying violates the First Amendment’s Free Speech Clause.

Albany County, frustrated by the inability of the school district’s anti-bullying policies to address cyberbullying, enacted a county statute that criminalized cyberbullying. The new law defined cyberbullying 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.

The statute outlaws cyberbullying against “any minor or person” situated in the county, and makes cyberbullying a misdemeanor offense.

A suit, alleging that the new law was unconstitutional, was bought by a high school student who was charged with violating the new statute after creating a Facebook page that contained vulgar and offensive posting about classmate.

The Court of Appeals reversed the student’s conviction, striking down the cyberbullying statute on the ground that it violated the First Amendment, on the grounds that the statute was overbroad and overly vague. The Court noted that prohibitions of speech must be limited to “communications that qualify as fighting words, true threats, incitement, obscenity, child pornography, fraud, defamation or statements integral to criminal conduct,” and held that the statute prohibits types of protected speech “far beyond the cyberbullying of children.” For example, the Court pointed out that the law “covers communications aimed at adults, and fictitious or corporate entities, even though the county legislature justified passage of the provision based on the detrimental effects that cyberbullying has on school-age children.”

The Court held that the law must be struck down unless the restrictions posed on protected speech can survive the “strict scrutiny test.” In response to the County’s invitation to strike only the provisions of the statute that were unconstitutional, the Court noted that it would be required to engage in a judicial rewrite that “encroaches on the authority of the legislative body that crafted the provision.” While sympathetic to the goals of the legislature, the Court found that the law “envelopes far more than acts of cyberbullying against children by criminalizing a variety of constitutionally-protected modes of expression.” In order for cyberbullying to be criminalized, the County will have to draft a cyberbullying law that is far more narrow, and limited to cyberbullying against minors.

In an interesting twist, a number of student advocacy groups, including Advocates for Children of New York, the National School Climate Center, and the Robert F. Kennedy Center for Justice and Human Rights, filed an amicus curie brief against the cyberbullying statute. These groups argued that criminalizing cyberbullying is counterproductive and harmful, having negative adverse consequences including reinforcing a school-to-prison pipeline and disproportionately targeting students of color. Their brief also argued that there are better alternatives for dealing with cyberbullying, including school climate reform and restorative practices.

As stated in the amicus brief, “studies and data show that criminalizing cyber-bullying will not decrease bullying and will instead cause a less satisfactory school climate for all of the students and significant harms to the children labeled ‘bullies,’ effectively depriving them of the opportunities to mature and be educated adequately and in a beneficial manner.” Thus it seems that groups and individuals committed to ending bullying in schools disagree vigorously on the best means to accomplish this goal. The national debate concerning student bullying and how to address it shows no signs of coming to an end.