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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 139
The People &c.,
            Respondent,
        v.
Marquan M.,
            Appellant.
_______________________________
County of Albany,
           Intervenor-Respondent.




          Corey Stoughton, for appellant.
          Thomas Marcelle, for intervenor-respondent County of
Albany.
          Advocates for Children of New York et al., amici
curiae.




GRAFFEO, J.:
          Defendant, a 16-year-old high school student,
anonymously posted sexual information about fellow classmates on
a publicly-accessible internet website.   He was criminally
prosecuted for "cyberbullying" under a local law enacted by the

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Albany County Legislature.   We are asked to decide whether this
cyberbullying statute comports with the Free Speech Clause of the
First Amendment.
                                   I
          Bullying by children in schools has long been a
prevalent problem but its psychological effects were not studied
in earnest until the 1970s (see Hyojin Koo, A Time Line of the
Evolution of School Bullying in Differing Social Contexts, 8 Asia
Pacific Educ Rev 107 [2007]).   Since then, "[b]ullying among
school-aged youth" has "increasingly be[en] recognized as an
important problem affecting well-being and social functioning,"
as well as "a potentially more serious threat to healthy youth
development" (Tonja R. Nansel et al., Bullying Behaviors Among
U.S. Youth, 285 Journal of the Am Med Assn 2094 [2001]).    At its
core, bullying represents an imbalance of power between the
aggressor and victim that often manifests in behaviors that are
"verbal (e.g., name-calling, threats), physical (e.g., hitting),
or psychological (e.g., rumors, shunning/exclusion)" (id. at
2094; see Koo, supra at 112).     Based on the recognized harmful
effects of bullying, many schools and communities now sponsor
anti-bullying campaigns in order to reduce incidents of such
damaging behaviors.
          Educators and legislators across the nation have
endeavored to craft policies designed to counter the adverse
impact of bullying on children.    New York, for example, enacted


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the "Dignity for All Students Act" in 2010 (see L 2010, ch 482,
§ 2; Education Law §§ 10 et seq.), declaring that our State must
"afford all students in public schools an environment free of
discrimination and harassment" caused by "bullying, taunting or
intimidation" (Education Law § 10).      In furtherance of this
objective, the State prohibited discrimination and bullying on
public school property or at school functions (see Education Law
§ 12 [1]).    The Act relied 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
(see Education Law § 13).    The Act did not criminalize bullying
behaviors; instead, it incorporated educational penalties such as
suspension from school.
             Despite these efforts, the problem of bullying
continues, and has been exacerbated by technological innovations
and the widespread dissemination of electronic information using
social media sites.    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" (L 2012, ch 102, § 1).     Regardless of how or
where bullying occurs, it "affects the school environment and
disrupts the educational process, impeding the ability of
students to learn and too often causing devastating effects on


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students' health and well-being" (id.; see e.g. American
Psychiatric Assn, Resolution on Bullying Among Children & Youth
[2004]).   The use of computers and electronic devices to engage
in this pernicious behavior is commonly referred to as
"cyberbullying" (see e.g. Education Law § 11 [8]; L 2012, ch 102,
§ 1; Simone Robers et al., Indicators of School Crime & Safety:
2012, at 44, Natl Ctr for Educ Statistics, U.S. Depts of Educ &
Justice [2013]).   Unlike traditional bullying, victims of
cyberbullying can be "relentlessly and anonymously attack[ed]
twenty-four hours a day for the whole world to witness.     There is
simply no escape".1
           The Dignity for All Students Act did not originally
appear to encompass cyberbullying, particularly acts of bullying
that occur off school premises.   As the ramifications of
cyberbullying on social networking sites spilled into the
educational environment, in 2012, the State Legislature amended
the Act to expand the types of prohibited bullying conduct
covered by its provisions.   It added a proscription on bullying
that applied to "any form of electronic communication" (Education
Law § 11 [8]), including any off-campus activities that
"foreseeably create a risk of substantial disruption within the
school environment, where it is foreseeable that the conduct,
threats, intimidation or abuse might reach school property"

     1
       Naomi Harlin Goodno, How Public Schools Can
Constitutionally Halt Cyberbullying, 46 Wake Forest L Rev 641,
641 (2011).

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(Education Law § 11 [7]).
          Before the addition of the 2012 amendments to the
Dignity for All Students Act, elected officials in Albany County
decided to tackle the problem of cyberbullying.   They determined
there was a need to criminalize such conduct because the "State
Legislature ha[d] failed to address th[e] problem" of "non-
physical bullying behaviors transmitted by electronic means"
(Albany County Local Law No. 11 of 2010, § 1).    In 2010, the
Albany County Legislature adopted a new crime -- the offense of
cyberbullying   -- which was defined 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"
          (id. § 2)
The provision outlawed cyberbullying against "any minor or
person" situated in the county (id. § 3).2   Knowingly engaging in
this activity was deemed to be a misdemeanor offense punishable
by up to one year in jail and a $1,000 fine (see id. § 4).       The


     2
       The term "person" was broadly defined to include "any
natural person, individual, corporation, unincorporated
association, proprietorship, firm, partnership, joint venture,
joint-stock association, or other entity or business organization
of any kind" (Albany County Local Law No. 11 of 2010, § 2).

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statute, which included a severability clause (see id. § 7),
became effective in November 2010.
                                II
           A month later, defendant Marquan M., a student
attending Cohoes High School in Albany County, used the social
networking website "Facebook" to create a page bearing the
pseudonym "Cohoes Flame."   He anonymously posted photographs of
high-school classmates and other adolescents, 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.
           A police investigation revealed that defendant was the
author of the Cohoes Flame postings.   He admitted his involvement
and was charged with cyberbullying under Albany County's local
law.   Defendant moved to dismiss, arguing that the statute
violated his right to free speech under the First Amendment.
After City Court denied defendant's motion, he pleaded guilty to
one count of cyberbullying but reserved his right to raise his
constitutional arguments on appeal.    County Court affirmed,
concluding that the local law was constitutional to the extent it
outlawed such activities directed at minors, and held that the
application of the provision to defendant's Facebook posts did
not contravene his First Amendment rights.   A Judge of this Court


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granted defendant leave to appeal (21 NY3d 1043 [2013]).
                               III
          Defendant contends that Albany County's cyberbullying
law violates the Free Speech Clause of the First Amendment
because it is overbroad in that it includes a wide array of
protected expression, and is unlawfully vague since it does not
give fair notice to the public of the proscribed conduct.    The
County concedes that certain aspects of the cyberbullying law are
invalid but maintains that those portions are severable,
rendering the remainder of the act constitutional if construed in
accordance with the legislative purpose of the enactment.
Interpreted in this restrictive manner, the County asserts that
the cyberbullying law covers only particular types of electronic
communications containing information of a sexual nature
pertaining to minors and only if the sender intends to inflict
emotional harm on a child or children.
          Under the Free Speech Clause of the First Amendment,
the government generally "has no power to restrict expression
because of its message, its ideas, its subject matter, or its
content" (United States v Stevens, 559 US 460, 468 [2010]
[internal quotation marks omitted]).   Consequently, it is well
established that prohibitions of pure 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 (see United States v


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Alvarez, __ US __, 132 S Ct 2537, 2544 [2012]; Brown v
Entertainment Merchants Assn., __ US __, 131 S Ct 2729, 2733
[2011]; People v Dietze, 75 NY2d 47, 52 [1989]).   Outside of such
recognized categories, speech is presumptively protected and
generally cannot be curtailed by the government (see United
States v Alvarez, 132 S Ct at 2543-2544; Brown v Entertainment
Merchants Assn., 131 S Ct at 2734; United States v Stevens, 559
US at 468-469).
           Yet, the government unquestionably has a compelling
interest in protecting children from harmful publications or
materials (see Reno v American Civil Liberties Union, 521 US 844,
875 [1997]; see also Brown v Entertainment Merchants Assn., 131
S Ct at 2736; see generally Bethel School Dist. No. 403 v Fraser,
478 US 675, 682 [1986]).   Cyberbullying is not conceptually
immune from government regulation, so we may assume, for the
purposes of this case, that the First Amendment permits the
prohibition of cyberbullying directed at children, depending on
how that activity is defined (see generally Brown v Entertainment
Merchants Assn., 131 S Ct at 2735-2736, 2741; cf. United States v
Elonis, 730 F3d 321 [3d Cir 2013] [affirming conviction premised
on threatening Facebook posts], cert granted __ US __ [June 16,
2014]).   Our task therefore is to determine whether the specific
statutory language of the Albany County legislative enactment can




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comfortably coexist with the right to free speech.3
          Challenges to statutes under the Free Speech Clause are
usually premised on the overbreadth and vagueness doctrines.     A
regulation of speech is overbroad if constitutionally-protected
expression may be "chilled" by the provision because it facially
"prohibits a real and substantial amount of" expression guarded
by the First Amendment (People v Barton, 8 NY3d 70, 75 [2006]).
This type of facial challenge, which is restricted to cases
implicating the First Amendment, requires a court to assess the
wording of the statute -- "without reference to the defendant's
conduct" (People v Stuart, 100 NY2d 412, 421 [2003]) -- to decide
whether "a substantial number of its applications are
unconstitutional, judged in relation to the statute's plainly
legitimate sweep" (United States v Stevens, 559 US at 473
[internal quotation marks omitted]).   A law that is overbroad
cannot be validly applied against any individual (see People v
Stuart, 100 NY2d at 421, citing Tribe, American Constitutional
Law § 12-32, at 1036 [2d ed 1988]).    In contrast, a statute is
seen by the courts as vague if "it fails to give a citizen
adequate notice of the nature of proscribed conduct, and permits
arbitrary and discriminatory enforcement" (People v Shack, 86
NY2d 529, 538 [1995]).   Hence, the government has the burden of
demonstrating that a regulation of speech is constitutionally

     3
       We offer no opinion on whether cyberbullying should be a
crime or whether there are more effective means of addressing
this societal problem outside of the criminal justice system.

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permissible (see United States v Playboy Entertainment Group, 529
US 803, 816-817 [2000]; cf. People v Davis, 13 NY3d 17, 23
[2009]).
           A First Amendment analysis begins with an examination
of the text of the challenged legislation since "it is impossible
to determine whether a statute reaches too far without first
knowing what the statute covers" (United States v Williams, 553
US 285, 293 [2008]).   In this regard, fundamental principles of
statutory interpretation are controlling.   Chief among them is
the precept that "clear and unequivocal statutory language is
presumptively entitled to authoritative effect" (People v Suber,
19 NY3d 247, 252 [2012]; see e.g. People v Williams, 19 NY3d 100,
103 [2012]).
           Based on the text of the statute at issue, it is
evident that Albany County "create[d] a criminal prohibition of
alarming breadth" (United States v Stevens, 559 US at 474).      The
language of the local law embraces a wide array of applications
that prohibit types of protected speech far beyond the
cyberbullying of children (see id. at 473-474; People v Barton,
8 NY3d at 75).   As written, the Albany County law in its broadest
sense criminalizes "any act of communicating . . . by mechanical
or electronic means . . . with no legitimate . . . personal . . .
purpose, with the intent to harass [or] annoy. . . another
person."   On its face, the law covers communications aimed at
adults, and fictitious or corporate entities, even though the


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county legislature justified passage of the provision based on
the detrimental effects that cyberbullying has on school-aged
children.   The county law also lists particular examples of
covered communications, such as "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."   But such methods of expression are not limited to
instances of cyberbullying -- the law includes every conceivable
form of electronic communication, such as telephone
conversations, a ham radio transmission or even a telegram.    In
addition, the provision pertains to electronic communications
that are meant to "harass, annoy . . . taunt . . . [or]
humiliate" any person or entity, not just those that are intended
to "threaten, abuse . . . intimidate, torment . . . or otherwise
inflict significant emotional harm on" a child.   In considering
the facial implications, it appears that the provision would
criminalize a broad spectrum of speech outside the popular
understanding of cyberbullying, including, for example:   an email
disclosing private information about a corporation or a telephone
conversation meant to annoy an adult.
            The County admits that the text of the statute is too
broad and that certain aspects of its contents encroach on
recognized areas of protected free speech.   Because the law
"imposes a restriction on the content of protected speech, it is


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invalid unless" the County "can demonstrate that it passes strict
scrutiny -- that is, unless it is justified by a compelling
government interest and is narrowly drawn to serve that interest"
(Brown v Entertainment Merchants Assn., 131 S Ct at 2738).      For
this reason, the County asks us to sever the offending portions
and declare that the remainder of the law survives strict
scrutiny.   What remains, in the County's view, is a tightly
circumscribed cyberbullying law that includes only three types of
electronic communications sent with the intent to inflict
emotional harm on a child:   (1) sexually explicit photographs;
(2) private or personal sexual information; and (3) false sexual
information with no legitimate public, personal or private
purpose.
            It is true, as the County urges, that a court should
strive to save a statute when confronted with a Free Speech
challenge (see e.g. People ex rel. Alpha Portland Cement Co. v
Knapp, 230 NY 48, 62-63 [1920], cert denied 256 US 702 [1921]).
But departure from a textual analysis is appropriate only if the
statutory language is "fairly susceptible" to an interpretation
that satisfies applicable First Amendment requirements (People v
Dietze, 75 NY2d at 52; see e.g. United States v Stevens, 559 US
at 481).    The doctrine of separation of governmental powers
prevents a court from rewriting a legislative enactment through
the creative use of a severability clause when the result is
incompatible with the language of the statute (see e.g. People v


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Dietze, 75 NY2d at 52-53; Reno v American Civil Liberties Union,
521 US at 884-885).   And special concerns arise in the First
Amendment context -- excessive judicial revision of an overbroad
statute may lead to vagueness problems because
           "the statutory language would signify one
           thing but, as a matter of judicial decision,
           would stand for something entirely different.
           Under those circumstances, persons of
           ordinary intelligence reading [the law] could
           not know what it actually meant" (People v
           Dietze, 75 NY2d at 53; see e.g. City of
           Houston, Texas v Hill, 482 US 451, 468-469
           [1987]).
           We conclude that it is not a permissible use of
judicial authority for us to employ the severance doctrine to the
extent suggested by the County or the dissent.   It is possible to
sever the portion of the cyberbullying law that applies to adults
and other entities because this would require a simple deletion
of the phrase "or person" from the definition of the offense.
But doing so would not cure all of the law's constitutional ills.
As we have recently made clear, the First Amendment protects
annoying and embarrassing speech (see e.g. People v Golb, __ NY3d
__, 2014 NY Slip Op 03426 [May 13, 2014]; People v Dietze, 75
NY2d at 52-53), even if a child may be exposed to it (see Brown v
Entertainment Merchants Assn., 131 S Ct at 2736), so those
references would also need to be excised from the definitional
section.   And, the First Amendment forbids the government from
deciding whether protected speech qualifies as "legitimate," as
Albany County has attempted to do (see Snyder v Phelps, __ US __,


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131 S Ct 1207, 1220 [2011], quoting Erznoznik v Jacksonville, 422
US 205, 210-211 [1975]; cf. People v Shack, 86 NY2d at 536-537).4
          It is undisputed that the Albany County statute was
motivated by the laudable public purpose of shielding children
from cyberbullying.    The text of the cyberbullying law, however,
does not adequately reflect an intent to restrict its reach to
the three discrete types of electronic bullying of a sexual
nature designed to cause emotional harm to children.   Hence, to
accept the County's proposed interpretation, we would need to
significantly modify the applications of the county law,
resulting in the amended scope bearing little resemblance to the
actual language of the law.   Such a judicial rewrite encroaches
on the authority of the legislative body that crafted the
provision and enters the realm of vagueness because any person
who reads it would lack fair notice of what is legal and what
constitutes a crime.   Even if the First Amendment allows a
cyberbullying statute of the limited nature proposed by Albany
County, the local law here was not drafted in that manner.
Albany County therefore has not met its burden of proving that


     4
       Contrary to the dissent's position, People v Shack (86
NY2d 529 [1995]) and People v Stuart (100 NY2d 412 [2003]) are
distinguishable because they addressed statutes that criminalized
conduct -- repeated telephone harassment and stalking -- without
regard to the content of any communication. Here, however, the
Albany County law facially allows law enforcement officials to
charge a crime based on the communicative message that the
accused intends to convey, as evidenced by the fact that
defendant was prosecuted because of the offensive words he wrote
on Facebook.

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the restrictions on speech contained in its cyberbullying law
survive strict scrutiny.
                                 * * *
             There is undoubtedly general consensus that defendant's
Facebook communications were repulsive and harmful to the
subjects of his rants, and potentially created a risk of physical
or emotional injury based on the private nature of the comments.
He identified specific adolescents with photographs, described
their purported sexual practices and posted the information on a
website accessible world-wide.    Unlike traditional bullying,
which usually takes place by a face-to-face encounter, defendant
used the advantages of the internet to attack his victims from a
safe distance, twenty-four hours a day, while cloaked in
anonymity.    Although the First Amendment may not give defendant
the right to engage in these activities, the text of Albany
County's law envelops far more than acts of cyberbullying against
children by criminalizing a variety of constitutionally-protected
modes of expression.    We therefore hold that Albany County's
Local Law No. 11 of 2010 -- as drafted -- is overbroad and
facially invalid under the Free Speech Clause of the First
Amendment.
             Accordingly, the order of County Court should be
reversed and the accusatory instrument dismissed.




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People v Marquan M.
No. 139




SMITH, J. (dissenting):
          Albany County has conceded that certain provisions of
its Cyber-Bullying Law are invalid.    It seems to me that those
provisions can be readily severed from the rest of the
legislation and that what remains can, without any strain on its
language, be interpreted in a way that renders it
constitutionally valid.
          The operative provision of the law says simply: "No
person shall engage in Cyber-Bullying against any minor or person
in the County of Albany."   The County does not defend the law as
it applies to adults, and the majority acknowledges that we may
consider the statute as if the words "or person" were deleted
(majority op at 13).   But the majority finds irreparable
constitutional flaws in the definition of Cyber-Bullying, which
is as follows:
          "Cyber-Bullying shall mean 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

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                                 - 2 -                       No. 139

          otherwise inflict significant emotional harm
          on another person."
          The County concedes that the words "embarrassing" and
"hate mail" are "vague and thus unenforceable" (Brief of
Intervenor-Respondent Albany County [County Brief] at 8 n 4).      It
argues, correctly I think, that these terms can be dealt with in
the same way as the reference to "person" in the operative
section: simply by crossing them out.    Once these deletions are
made, I see nothing in the law that renders it unconstitutional.
          The majority, it seems, is troubled by two other
aspects of the definition of "Cyber-Bullying": the requirement
that the forbidden communications be made "with no legitimate
private, personal or public purpose"; and the series of verbs --
"harass, annoy, threaten, abuse, taunt, intimidate, torment,
humiliate" -- that precedes the words "or otherwise."    Neither
requires us to invalidate the law.
          I grant that the words "no legitimate . . . purpose"
are not remarkable for their precision.   We have twice held,
however, that they are clear enough to withstand a constitutional
challenge for vagueness (People v Shack, 86 NY2d 529, 538 [1995]
[holding valid a prohibition on the making of a telephone call
"with intent to harass, annoy, threaten or alarm another person .
. . with no purpose of legitimate communication"]; People v
Stuart, 100 NY2d 412, 428 [2003] [holding valid an anti-stalking
statute prohibiting a described course of conduct when engaged in
"for no legitimate purpose"]).    We said in Shack:

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           "the phrase 'no purpose of legitimate
           communication' . . . notwithstanding its
           subjective quality, would be understood to
           mean the absence of expression of ideas or
           thoughts other than threats and/or
           intimidating or coercive utterances."
Similarly here, the phrase "no legitimate purpose" should be
understood to mean the absence of expression of ideas or thoughts
other than the mere abuse that the law proscribes.
           It is true, as the majority says (majority op at 14 n
4) that the criminal conduct at issue in Shack and Stuart was
different from the conduct at issue here -- but that does not
make the words "no legitimate purpose" any more or less vague.
The majority is also correct in saying that "the First Amendment
forbids the government from deciding whether protected speech
qualifies as 'legitimate'" (majority op at 13), but this begs the
central question of what speech is "protected" and what is not.
The Cyber-Bullying law prohibits a narrow category of valueless
and harmful speech when the government proves, among other
things, that the speaker had no legitimate purpose for engaging
in it.   The speech so prohibited is not protected speech.
           As for the list of verbs beginning with "annoy" and
ending with "humiliate," it is fair to read them, as the County
urges, as "a non-exhaustive list of ways that the wrongdoer may
formulate his or her intent to inflict emotional harm on the
victim" (County Brief at 8).   In other words, the acts within the
scope of the Cyber-Bullying law -- disseminating sexually
explicit photographs or private, personal, false or sexual

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                                - 4 -                          No. 139

information -- are prohibited only where they are intended to
"inflict significant emotional harm" on the victim, and the verbs
merely serve as examples of ways in which significant emotional
harm may be inflicted.   That is not the only possible way to read
the text of the law, but it is a perfectly reasonable way --
indeed, the word "otherwise" seems to signal that the verbs
preceding it are only illustrative.     So read, the law does not
prohibit conduct intended to harass, annoy, threaten or the like
unless the actor specifically intended "significant emotional
harm."   I do not find such a prohibition to be unconstitutionally
vague or overbroad.
            In short, I think the majority makes too much of what
it sees as flaws in the draftsmanship of the Cyber-Bullying law.
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 US ___, 131 S Ct 1207 [2011]) and
horrifyingly violent video games marketed to teenagers (Brown v
Entertainment Merchants Assn., 564 US     ___, 131 S Ct 2729
[2011]).    But Snyder itself makes clear that speech designed to
inflict serious emotional injury is protected only when, as in


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                                  - 5 -                           No. 139

Snyder, the speech is directed at a matter of public concern:
             "Whether the First Amendment prohibits
             holding Westboro liable for its speech in
             this case turns largely on whether that
             speech is of public or private concern, as
             determined by all the circumstances of the
             case . . . . [R]estricting speech on purely
             private matters does not implicate the same
             constitutional concerns as limiting speech on
             matters of public interest"
(131 S Ct at 1215; see also Hustler Magazine, Inc. v Falwell,
485 US 46, 53 [1988] [speech about a "public figure" is
constitutionally protected even if uttered with intent to cause
emotional distress because regulation of emotionally harmful
speech about public figures would chill debate on public
matters]).
             It is thus clear that the emotional abuse involved in
Snyder would not have been constitutionally protected if, like
Marquan's remarks about his fellow students, it had referred to
no matter of public importance and had been uttered purely out of
private rage or spite.    And the victims of the abuse in Snyder
were adults; in that respect, the present case is a fortiori.
The Albany County Cyber-Bullying law is valid.
*   *   *     *   *   *   *   *    *      *   *   *   *   *   *    *   *
Order reversed and accusatory instrument dismissed. Opinion by
Judge Graffeo. Chief Judge Lippman and Judges Read, Rivera and
Abdus-Salaam concur. Judge Smith dissents in an opinion in which
Judge Pigott concurs.

Decided July 1, 2014




                                  - 5 -
