Cyber bullying and the First Amendment

Liftfact:

Calling a minor a nerd or commenting on his or her virginity may be viewed as insulting or humiliating, but annoying and insulting speech does not fit any of the four categories of punishable speech as set out by the U.S. Supreme Court.

By Scott Forsyth

The Daily Record Newswire

Fighting cyber bullying directed at minors is up there with motherhood and apple pie these days. Last week, the Monroe County Legislature passed a local law "Prohibiting Cyber Bullying in Monroe County" by the margin of 22 to 5. This week the New York State Legislature passed a broader law on the subject.

Who would speak out against these efforts? The New York Civil Liberties Union for one.

The NYCLU applauded the county legislature's desire to do something about bullying but decried its approach -- criminalizing behavior after the harm has been done. In addition, the NYCLU pointed out the local law prohibits speech protected by the First Amendment and is impermissibly vague. As is often the case, the devil is in the details of the law.

The law makes "cyber bullying against any minor in Monroe County" a misdemeanor. Conviction may result in a fine "and/or up to one year's imprisonment."

Cyber bullying is "engaging in a course of conduct or repeatedly committing acts of abusive behavior ... by communication or causing a communication to be sent by mechanical or electronic means, ..." "with (the) intent to harass, annoy, threaten or place another in fear of personal injury."

"Acts of abusive behavior shall include, but not (be) limited to: taunting, threatening; intimidating; insulting; tormenting; humiliating ...."

What jumps out immediately is the sweep of the law. Calling a minor a nerd or commenting on his or her virginity may be viewed as insulting or humiliating. A person is guilty if he simply communicates "against" or about a minor with the intent to annoy or harass the minor. The communication need not be sent to the minor.

Fortunately, the Supreme Court has set limits on the criminalization of speech. Only four categories of speech can be punished:

(1) fighting words, words "which by their very utterance inflict injury or tend to incite an immediate breach of peace,"

(2) incitement, statements "directed to inciting or producing imminent lawless action" and are likely to produce such action,

(3) obscenity, and

(4) true threats, "statements where the speaker means to communicate a serious expression and an intent to commit an unlawful violence."

Annoying and insulting speech does not fit any of these categories.

Protecting minors from potentially harmful speech is not a fifth exception. The Supreme Court rejected this argument when it invalidated the Communications Decency Act in 1997 and the Child Online Protection Act in 2002.

The fact the county legislature intended to regulate electronic speech makes no difference to the First Amendment analysis. "(W)hatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, ..., do not vary when a new and different medium for communication appears," Brown v. Entm't Merch's Ass'n, 131 S. Ct. 2729, 2733 (2011).

Besides being overbroad, the law is too vague on its face. It employs a list of ambiguous and subjective terms, such as annoy, taunt and humiliate to define what is prohibited. It does not "give a person of ordinary intelligence fair notice (of what) conduct is forbidden." The need for notice is greatest when a law regulates speech, to prevent self-censorship.

The New York Legislature took a different and more proactive approach to cyber bullying. It saw the behavior as a failure of education and charged school districts with developing strategies to combat cyber bullying through lessons and monitoring student communications on and off campus. It did not criminalize the behavior.

However, in the rush to pass a law the state legislature selected vague and overbroad terminology also. It defined cyber bullying in part as conduct or an expression that "reasonably would be expected to cause ... emotional harm to a student." An off-campus communication may be sanctioned if it is foreseeable that the communication "might reach" school property and it is foreseeable the communication may disrupt substantially the school environment.

The county legislature faulted the state for not acting on a critical issue. Now that the state has, it will be interesting to see if the county executive enforces the local law or if the legislature does the right thing and repeals the law. Most likely, the county executive and the legislature will do nothing. They have proven themselves to the voters, the First Amendment notwithstanding.

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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to a chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

Published: Fri, Jun 29, 2012