Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: May 13, 2014

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Cyber bullying’s rapid rise through the ranks of social concerns has reached the point of state legislators across the country attempting to criminalize online harassment.  Measures against online bullying have been proposed and considered across the US, but the lingering concerns over infringement of speech were highlighted last week when New York’s highest court found the state’s ‘aggravated harassment’ statute unconstitutional in its People v Golb decision.

New York’s Aggravated Harassment Law

Golb focused on the defendant’s impersonating a target in e-mail messages, but is relevant to cyber bullying due to charges filed under New York’s Penal Law 240.30(1) which provides that “a person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she… communicates with a person, anonymously or otherwise, by … delivering any form of written communication in a manner likely to cause annoyance or alarm.” 

During oral arguments in front of the New York Court of Appeals last month, the prosecutor representing the state argued that 240.30 gives the state authority to prosecute for seemingly minor behavior such as emailing a person’s girlfriend to tell her that her boyfriend is “a relatively useless person.”  Under his interpretation of the law, New York was granted the authority to aggressively pursue criminal charges against a defendant who made potentially harmful or harassing statements about another person, even if the target was not the recipient of the communications.

The expansive application of New York’s aggravated harassment law raised concern among the judges on the State’s high court, and they determined that 240.30 was unconstitutional for being over-broad and vague in the behavior that it criminalized.  Finding the broad-stroke criminalization of any speech that has the intent to annoy to be a violation of the First Amendment’s Freedom of Speech, the Court of Appeals vacated the law.

People v Golb Raises Familiar Concerns

The polarizing issue at the center of the cyber bully legislative debate is whether or not it is constitutional for a state to criminalize negative speech on the internet.  Emboldened by the relative anonymity and non-confrontational nature of online communication, the proliferation of negativity via email and social media has created a stir amongst concerned parties who feel that hurtful speech can result in serious, and potentially fatal, cases of depression or emotional distress.

While the concerns over the well-being of individuals, particularly teenagers, who can be negatively affected by cyber bullying are not without merit, the law is yet to find a balance between constitutionally protected speech and reasonable limits on online communications.  Last month in Colorado, the state legislature rejected an anti-cyber bullying bill in the latest example of proposed online harassment legislation to fall short due to the same Free Speech concerns cited by the New York Court of Appeals in Golb.  Although proponents of cyber bullying legislation lament the failure to provide legal protection from online negativity, it is difficult to rationalize online harassment laws.

A true test to the Freedom of Speech protected by the First Amendment is how governments handle unpopular, or even hurtful, statements that are designed to harass or annoy the recipients.  While it is reasonable to pass laws that criminalize speech which defames others or incites violence, passing legislation that can broadly punish online communications for causing emotional distress descends down a slippery slope.  Criminalizing speech that does not directly lead to or encourage harmful or violent behavior, no matter how insulting or hurtful it may be, can lead to a dangerously intrusive and punitive government with excessive power to control private communication.

Cyber Bullying Legislation

Despite the First Amendment concerns over criminalizing online harassment, states continue to debate cyber bullying legislation across the country.  Earlier this year, Virginia legislators proposed a bill to criminalize online harassment, making it the latest in a line of states to take on the issue in some form or another.  Globally, England has taken up the issue of cyber bullying with punitive legislation designed to curb negative online behavior, and this week Canadian legislators debated privacy concerns raised by the country’s recent anti-bullying bill. 

With the matter gaining national, and international, attention, proponents of cyber bullying bills that restrict online speech are likely to continue to push for aggressive legislation targeting internet cruelty.  Despite emotional stories of the negative effects of cyber bullying, until a bill is able to criminalize online communication in such a way that the First Amendment is left intact, expect more results like People v Golb that uphold the right of free speech – even when it is vile.