(Re-)Writing a Cyberbullying Law

In December 2010, Marquan M., a 15-year-old student of Albany, New York’s Cohoes High School, created a Facebook page under the pseudonym, “Cohoes Flame,” on which he began to anonymously post pictures of his male and female classmates that were accompanied by, among other personal information, derogatory remarks about these students’ alleged sexual practices and preferences.

An equal opportunity offender in both senses of the word, Marquan was unmasked as the person responsible for the Cohoes Flame Facebook page when police traced the origin of the posts to the IP address of his home computer. Once identified, Marquan became the first person to be charged with violating Albany’s new cyberbullying law. The law was passed one month prior to Marquan’s arrest and was classified as a misdemeanor offense punishable by up to one year in jail and a $1,000 fine.

However, Marquan appealed these charges, arguing that Albany’s cyberbullying law was unconstitutional. Earlier this month, New York’s highest court heard this argument and agreed. In what stands to be used as a test case for the validity of cyerbullying laws passed by states across the country, the New York court determined that the law violated the First Amendment because it “would criminalize a broad spectrum of speech outside the popular understanding of cyberbullying.”

However, those seeking a legislative response to curb cyberbullying were not left without hope because, in striking down the law, the court dubiously pronounced that, in accordance with the government’s compelling interest in protecting children from harmful publications or materials, “the First Amendment permits the prohibition of cyberbullying directed at children, depending on how that activity is defined.”

While I have a hard time getting behind a law that carries the potential of broadening the class of individuals labeled as criminals prior to their eighteenth birthday, I thought it would be entertaining to take hold of the court’s words and see if we can re-write Albany’s cyberbullying statute in a way that will pass constitutional muster.

Cyberbullying and the First Amendment Hurdle

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Why You Should Care

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of Kids Admit to Being Victims of Cyberbulling
Teens Tell Their Parents If They Have Been Cyberbullied
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Growing Number of States Have Cyberbullying Laws

Before we start, I think it’s wise to (1) state what we are trying to accomplish with a cyberbullying law, and (2) identify the competing First Amendment interests that will need to be accounted for when drafting this law’s language.

Here, the “evil” that we’re trying to eliminate is people using technology as a tool to harass and torment minors.4 Unlike traditional bullying, which usually takes place by a face-to-face encounter, cyberbullying is not confined by physical restraints and cyberbullies, advantaged by the Internet and other communication technologies, are able to attack their victims from a safe distance, twenty-four hours a day, while also cloaked in anonymity. Unable to find a place of security away from the persistent attacks of their bullies, victims of cyberbullying are more likely to suffer from low self-esteem and to consider suicide than victims of traditional bullying. Thus, subject to further clarification, we would at the very least like for liability under this law to attach to a person who repeatedly engages in digital communications that target a minor with the intent to cause that minor substantial emotional distress.

The First Amendment problem we face is that, even if the New York court is correct in that the First Amendment permits proscription of cyberbullying speech, lawmakers must still ensure that any cyberbullying law they pass does not have the potential to be used to punish other protected forms of speech. This is what Albany’s legislators failed to do because, as we will see, the language of their county’s cyberbullying law was so broad that it could be used to arrest a person for sending an angry email to a business. Considering the objectives of this law that we just identified, the idea that it could apply to criminalize speech not even directed at a human person is no bueno.

So, in short, our job in drafting this law is to prohibit cyberbulling without also censoring other protected speech.

With that in mind, let’s begin taking a crack at rewriting Albany’s cyberbullying law by looking at the language of the statute itself.

Albany’s Cyberbullying Statute

Enacted in 2010, Albany’s Local Ordinance No.11 prohibited cyberbullying “against any minor or person,” and this law defined cyberbullying as:

  any act of communicating … 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. (

An incomprehensible provision with a curious semi-colon, we will need to rewrite much of its language before anything that resembles this law comports with First Amendment standards. For purposes of clarity, I’ll take the law’s language apart piece-by-piece, identifying constitutionally problematic language and possible corrections.

Don’t worry, this is where it actually gets interesting.

1. Against “any minor or person”

The Problem: Although Albany’s legislature justified this law on the harm cyberbullying does to school-aged children, the inclusion of the language “or person” ensured that its reach was not constrained to Albany’s adolescents. It applied to electronic communications at large, regardless of whether those communications were directed to minors, adults, or, as the court pointed out, even entities. The carelessness of this mistake is downright intolerable when you consider that distinguishing between minors and persons only makes sense if you consider minors not to be persons.

Being that I give Albany’s legislators the benefit of the doubt in assuming that they do not believe minors to be of non-person status, I can only speculate that “or person” was a late addition pushed forward by single-issue advocates who have a tendency to reach too far.

The Fix: against “any minor”.

2. “any act of communicating … by mechanical or electronic means…”

The Problem: When drafting a cyberbullying statute, the actual machine a person uses to cyberbully is irrelevant to our law’s aims because cyberbullying is, at its essence, an activity that relates only to electronic communications—an essence without which regular bullying and cyberbullying would require no distinction.

Thus, I struggle to find an explanation for why the Albany legislature believed it was necessary to ensure their law covered communications made by “mechanical” means. By doing so, Albany expanded the scope of their cyberbullying law far beyond electronic communications. Not only did the law apply to emails and text messaging, but it could also be said to cover communications made using typewriters, telegrams, landline phones, and, depending on how expansive your definition for machine might be, even etch-a-sketches. That Albany’s law could be used to censor speech produced by such mundane machines only served to undermine the “cyber” portion of their cyberbullying law.

Moving on, there is also the problem of the singularity with “any act.” An oversight like this demonstrates why it’s important to make sure you understand what your law is targeting, because, while a person who does something hateful, hurtful or spiteful to you once may be a jerk, that person cannot genuinely be considered to be bullying you unless he or she frequently and persistently engages you with that type of conduct. Thus, any cyberbullying law, especially if enforced by criminal penalties, must be premised on a definition of cyberbullying that contains a course of conduct limitation because, although kids deserve our protection from cyberbullying, they deserve just as much of our protection from being criminally punished for any single act of non-physical aggression towards one another.

Reviewing the above, I do have to hand it to the Albany legislature for needing only 8 words to negate both the relevance of the meaning of cyber and bully while drafting a law against cyberbullying.

The Fix: “the repeated act of communicating … by electronic means…”

3. “…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,…”

The Problem: I think legislature-included examples for how laws apply are great. Not only do they help clarify issues of interpretation, but they also help those tasked with enforcing the law understand what does and does not violate its provision.

However, examples can also undermine a law, particularly when they obscure rather than clarify its purpose. As a general rule, if your example needs an example, it’s not a good example.

Here, for instance, while it is clear Albany wanted to ensure that their law applied to cyberbullies who attack their victims using “sexual information,” they failed to define sexual information and left those enforcing the law with little real guidance on its application. It seemingly covered not only Marquan’s posting false comments about classmates’ sexual predilections, but also any person relaying the sexual orientation and the gender of another minor, even if that information were publicly available on that minor’s Facebook profile.

Moreover, not only is prohibiting the dissemination of sexually explicit photos of minors likely able to be dealt with through child pornography laws (perhaps they meant sexually suggestive), that clause also says that it will be a misdemeanor to disseminate an embarassing photograph of another person. A crime for which I’m sure that most, if not all, of us living in the social media generation could be convicted, we do not, regardless of intent, lose the constitution’s protections just because our speech embarasses another and lest we want our next generation to be educated on the prison yard instead of the school yard, any cyberbullying law must respect that protection.

Oh, and don’t even get me started on making it a crime to disseminate “personal information” — nothing more clearly captures the unconstitutional breadth of Albany’s law than that language.

The Fix: All of these examples suck and are unnecessary. Cut them all out and have those in charge with enforcing this law use the rest of the law’s language to guide their enforcement of its provisions. However, if me must include examples, let’s limit these examples to the context—not the content—of the communication by inserting:  “…including, but not limited to, e-mail, instant messaging, text messages, blogs, mobile phones, online games and websites…”.

4. “… with no legitimate private, personal, or public purpose;”

The Problem: I really thought it could not get much worse than “minor or person,” but I was wrong. This is worse.

It is a big fat no-no to criminalize speech based, even if only in part, on the government’s assessment of its legitimacy. But even if the government could regulate speech based on what it decided is or is not legitimate—and this is what gets me—can someone please tell me when a cyberbullying law qualified on the lack of a legitimate personal purpose applies?

Although you may call a person’s action conniving, irrational, and a host of other unflattering things, it’s doubtful you can say, or prove for that matter, that a person did not have a legitimate personal reason for taking an action.

The Fix: “… with no legitimate private, personal, or public purpose;”

5. “with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person;”

The Problem: Motivated by a desire to placate their electorate and ensure their law is not under-inclusive of its intended target, legislators often feel the need to dust off their Webster thesaurus every time they seek to pass a new law. Invariably, this results in an over-inclusive law that covers far more actions than intended.

As we originally pointed out, a cyberbullying law should aim to protect minors from the severe emotional harm that cyberbullies can inflict. Thus, while including “with the intent to harass,annoy, threaten, abuse, taunt,” et cetera, may be helpful illustrations for how that emotional harm may be inflicted, they are unnecessary, duplicative of existing law’s coverage,5 and constitutionally problematic.6

The Fix: “with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm.”

Assessment of the Final Version

After all the red-lining, we are left with a law that prohibits cyberbullying “against any minor” and defines cyberbullying as:

the repeated act of communicating by electronic means with the intent to inflict significant emotional harm.

Less problematic and incredibly easier to read. Albany, you can thank me later.


  1. While cyberbullying does not end after high school, minors are most at risk from the effects of cyberbullying. Plus, it’s easier to regulate speech directed to minors than adults because of that whole compelling interest thing.

  2. Making threatening statements, for example, is a historically recognized exception to the First Amendment that all states have passed criminal laws to cover.

  3. The First Amendment protects annoying and embarrassing speech, so we cannot criminalize speech based on those characteristics. The First Amendment also protect speech that disturbs another person, so we would also have to scratch that out.

  4. While cyberbullying does not end after high school, minors are most at risk from the effects of cyberbullying. Plus, it’s easier to regulate speech directed to minors than adults because of that whole compelling interest thing.

  5. Making threatening statements, for example, is a historically recognized exception to the First Amendment that all states have passed criminal laws to cover.

  6. The First Amendment protects annoying and embarrassing speech, so we cannot criminalize speech based on those characteristics. The First Amendment also protect speech that disturbs another person, so we would also have to scratch that out.

AJ Afkari | techlawgic

A.J. Afkari is a Los Angeles attorney who specializes in legal matters related to the Internet, technology, and all things intertwined. He received his B.A. from UCLA, his J.D. from USC, and his A.J. from his mother.

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