Testimony Regarding Law Prohibiting Cyber-Bullying in Albany County

The bill would reinstate a prohibition on cyberbullying in Albany County. Local legislation that criminalized cyberbullying was approved by the Albany County Legislature in 2010; that law was recently struck down on constitutional grounds by the New York Court of Appeals.² The court ruled that the 2010 law is overbroad as regards the proscription of cyberbullying, in violation of the First Amendment’s protections protections of free speech.

The NYCLU brought the litigation on behalf of a fifteen-year-old boy.

Proposed Local Law F seeks to reinstate the cyberbullying law, consistent with the constitutional constraints on the government’s authority to regulate protected speech based upon its content.

It is the position of the NYCLU this bill does not pass constitutional muster, and that the effort to address the problem of bullying – whether this involves conduct or speech – by creating new crimes is misguided. There are more effective interventions.

County legislators propose, in this bill, a broad prohibition of vaguely defined categories of speech. In this respect the bill adopts the framework of the bill recently rejected by the Court of Appeals. And for the same reasons, the proposed Local Law F is also constitutionally unsound.

It is well established in Supreme Court jurisprudence that the First Amendment permits the government to regulate speech based upon its content only in certain limited circumstances – namely, fighting words, incitement to imminent unlawful action, obscenity, and true threats (communication of the intent to commit an unlawful act of violence against another).³

The bill under consideration by Albany County legislators tonight is the equivalent of an end run around that rule.

I will immediately qualify this comment by offering this observation: to respect the right to freedom of speech is not to immunize young people or anyone else from threatening the personal safety of another or from engaging in other types of expression that may be restricted by the government. Nor does the First Amendment prevent educators from adopting appropriate rules and guidelines regarding speech and expression, or from imposing discipline or utilizing mediation, counseling and dispute-resolution strategies when young people engage in speech that harms others, or disrupts the learning environment in a school.

When analyzing laws that regulate protected speech, the Supreme Court requires that any such regulation is narrowly tailored. And this requires not only precise, limiting language regarding the meaning and scope of such a regulation, but also the consideration of alternative measures for addressing the problem, short of punishing speech.

And by this standard – the consideration of alternative measures – the legislation also fails the test.
I will take up this point in a moment, but I want to address here, briefly, what the NYCLU, and the courts, consider objectionable in the bill, as drafted.

The definition of cyberbullying – the specific content prohibited – ranges far beyond what the Supreme Court has deemed permissible under the First Amendment. This language in the bill creates the very problems that compelled the Court of Appeals to strike down the 2010 cyberbullying law: overbreadth and vagueness.

The proposed law strings together descriptive categories of speech that have no recognized definition in the law; that are inherently imprecise; and that, because of the nature of the content, are highly susceptible to subjective interpretation. The categories of prohibited speech are, “(1) sexually explicit photographs; (2) private or personal sexual information; or (3) false sexual information with no legitimate public, personal or private purpose.” ⁴

Under this scheme students may face prosecution for impulsively texting or posting to a social media site comments about a classmate’s sexual partners; a scorecard ranking of classmates by body type and sexual appeal; or musings about an individual’s sexual orientation or sexual identity. A YouTube video or Instagram photo that depicts an impersonation of Miley Cyrus “twerking” at the MTV awards could also be culpable conduct under this bill.

The offense of cyberbullying is predicated upon the intent to “inflict emotional harm”; this only exacerbates the constitutional problems created by prohibiting broad categories of speech. Outlawing constitutionally protected speech because the speaker intended to cause “emotional harm” fails to meet the standard clearly articulated by New York’s highest court.

In the matter of People v. Dietze, the Court of Appeals struck down a criminal statute that prohibited the use of abusive or obscene language “with the intent to harass, annoy, or alarm another person.⁵ The court concluded that “[c]asual conversation may be well be ‘abusive’ and intended to ‘annoy’; so, too, may be light-hearted banter or the earnest expression of personal opinion or emotion. But unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized.”⁶

It is not that constitutional law is hostile to civility or to decency in human discourse. The problem is that any attempt to prescribe by law what is appropriate, or acceptable, speech creates the danger that robust, controversial, even provocative speech – speech that is subject to broad protections under the First Amendment – will be deemed unlawful.

I have summarized here briefly a legal analysis developed more fully in the brief the NYCLU submitted to the court in the Marquan M. case. That brief is attached to the written testimony I have presented to you this evening.

I will close by offering some observations regarding alternative strategies for addressing the problems related to bullying, in all its manifestations.

In 2010 New York enacted a law known as the Dignity for All Students Act. That law directs school boards to develop affirmative measures – education, training, counseling – that prepare teachers and administrators to implement policies and practices that prevent bullying, and that respond effectively when it occurs.

The Court of Appeals observed in the Marquan M. ruling that despite this initiative, the problem of bullying persists. What the court did not mention, however, is that the law has not been implemented. Teachers and administrators have not been trained; materials and other resources are inadequate; outside expertise has not been made available.

In other words, the state failed to fund the policy prescription mandated by state law makers and supported by education advocates across the state.

It is not surprising, then, that local officials will resort to what is a relatively easy answer, if not a good answer – that is, to pass the responsibility to law enforcement.

There are, however, effective strategies for addressing cyberbullying that do not turn “bullies” into outlaws. A friend-of-the-court brief filed with the court in the Marquan M. case strongly opposed the Albany County cyberbullying statute, and proposed, instead, the implementation of evidence-based strategies to address student behavior, mediate disputes, and reform school climate.⁷ The brief was filed with the court on behalf of the following organizations: Advocates for Children of New York, National School Climate Center, Empire State Pride Agenda, Robert F. Kennedy Center for Justice and Human Rights, and the Student Press Center.

The brief filed by these groups provides a blueprint for developing creative and effective strategies to address bullying of young people. The brief also recommends strongly against adopting criminal-law and other punitive strategies to address the problem.

I quote here from the brief:

We already know, from study after study, that zero tolerance policies are not effective in curbing bullying. To take these policies a step further by criminalizing so called “bullies” – who are often children themselves – results in an even worse impact. The Cyber-bullying Law not only feeds directly into the School-to-Prison pipeline but studies show that these policies discriminate greatly against students of color, students with disabilities, and LGBT youth.

Further, the Cyber-bullying Law does nothing to get at the root of the problem. The National School Climate Center has studied this issue at length and identifies both school climate reform and restorative practices as proven methods for preventing cyber-bullying in the first place and for humanely addressing incidents of cyber-bullying in ways that strengthen the school environment and support the students.8

I will add that the School Climate Center is a resource that could assist and advise Albany County educators in this effort.

Why not, then, propose a bold, creative – and effective – policy initiative to address the underlying causes of bullying? Enlist experts from the School Climate Center; make a proposal to leading national foundations that fund this type of policy initiative?

Why not propose a comprehensive, evidence-based program that engages kids in honest, direct communication about the way speech – face to face, or in electronic digital format – can be used for good, or for bad; to promote understanding and compassion or to wield power or vent misdirected anger?

Why not make Albany’s schools a laboratory experiment that explores ways of using speech to promote tolerance and understanding?

That’s the recommendation of the NYCLU.

The proposed Local Law F should be withdrawn.

Thank you.

Footnotes

¹ Robert A. Perry, the NYCLU’s legislative director, participated in preparing this statement.

² People v. Marquan M., 22 N.Y.3d ___, 2014 N.Y. Slip Op. 04881 (July 1, 2014).

³ See U.S. v. Alvarez, 132 S.Ct. 2537 (2012).

⁴ Local Law No. F, 2014 (Section 2, Definitions).

⁵ People v. Dietze, 75 N.Y.2d 47, 50 at n.2 (1989).

⁶ Id. at 51.

⁷ Br. of Amici Curiae Advocates For Children of N.Y., et al., May 2, 2014, People v. Marquan M., 22 N.Y.3d ___, 2014 N.Y. Slip Op. 04881 (July 1, 2014).

⁸ Id. at 1-2.