People v. Marquan M.


Albany County Court order dated May 20, 2013, affirming misdemeanor conviction after a guilty plea for "cyber-bullying." Graffeo, J., granted leave August 19, 2013.

ISSUE PRESENTED: The constitutionality (1st Amendment & Void-for-Vagueness) of Albany Local Law No. 11 of 2010, criminalizing various forms of cyber-bullying.

Factual background: A 15-year-old high school student posted information on the internet about the alleged sexual practices and proclivities of his classmates.  He was criminally prosecuted under Albany County’s Anti-Cyberbullying Law, which prohibited, inter alia, using the internet to disseminate a variety of types of offensive information against any minor or “person” with “no legitimate . . . purpose,” with “the intent to harass, annoy, threaten, abuse, taint, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.” 


Issue: Does Albany County’s anti- cyberbullying law violate the First Amendment?  If so, can the offending portions be severed to save the statute?  


Held: The statute is unconstitutional as drafted because, while having the laudable purpose of protecitng minors, it is overbroad insofar as it criminalizes 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.”  Further, while the Court could make certain deletions to render the statute constitutional, that would not be a permissible exercise of the “severance doctrine” because it would require an extensive judicial rewrite that would encroach upon the drafting legislature’s authority and would render the statute vague for failing to provide fair notice of what was legal and what wasn’t. 


CAL Observes: Judges Smith and Pigott dissented, believing the statute could be saved with relatively minor intervention by the Court.