Ah, to own a liquor store near a law school last night.  There must have been some heavy drinking going on, as lawprofs held an emergency lean-in support group to come up with some spin to counter the New York Court of Appeals decision in People v. Marquan M., as it sucked the wind out of their best appeals to emotion.

The case dealt with an Albany County law criminalizing cyberbullying, a most fashionable crime.  There was no question, as there shouldn’t be, that it could cause children (though the inept language of the original law covered all “persons,” from adults to corporations) terrible distress.  But the fact that there is harm in the world doesn’t mean that we throw the Constitution under the bus to make sure it’s addressed.

[D]efendant 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.

If you immediately note the parallel to revenge porn, you aren’t alone.  Judge Victoria Graffeo spelled out what has been eluding so many in their attempts to pretend that when a harm causes massive hand-wringing, the First Amendment turns into wiggly jello.

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.  Outside of such recognized categories, speech is presumptively protected and generally cannot be curtailed by the government. [Citations omitted.]

For all the huffing and puffing about the horrors of online conduct, and how the First Amendment obviously doesn’t protect such horrible speech, it does.  The problem has always been grounded in the inability to define the wrongful conduct in a way that provides meaningful and narrowly tailored prohibitions, a subject I’ve been pounding to death for quite some time.

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. 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” — to decide whether “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” [Citations omitted.]

In other words, a facial challenge to a criminal law shouldn’t be deflected by the appeals to emotion that are the core of the scholarish arguments in favor of abandoning reason and definition because the harms are just so very awful.  The questions are whether the words have meanings so that someone can distinguish what is criminal and what is not, and whether that meaning will criminalize protected conduct along with the harms.  That’s unacceptable.

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.

As the Court recently held in People v. Golb, striking down the aggravated harassment law, the language used to cover the perceived evils is just as susceptible to criminalizing the First Amendment right to annoy the people we want to annoy.

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], even if a child may be exposed to it. [Citations omitted.]

Advocates for criminalizing everything that hurts feelings argue that these laws are saved by the intent requirement, which indeed is far better than laws lacking any intent requirement. But they’re still wrong, whether because the targets of intent are undefinable emotional words or because the intent is to engage in speech that people are constitutionally allowed to use.

Want to piss someone off? That’s your right. Want to shame them? Go for it. Nobody likes to be annoyed, but there is a constitutional right to annoy people.  Consider the alternative, that it’s a crime to use speech that doesn’t make other people happy or feel good about themselves.  There are likely some who are thinking, “well, yeah, that would be a wonderful crime.”

Judge Graffeo expressly notes that the opinion does not conclude that it is impossible to frame a law to prohibit cyberbullying that would pass constitutional muster, and indeed, few would argue that the “popular” notion of cyberbullying isn’t sufficiently harmful to be worthy of prohibition.  Rather, the Court refuses to do the job of fixing up laws that facially fail.

The laundry list of trendy harms for which simplistic cures are being offered isn’t new. How to achieve the goal of curing the harm, on the other hand, is far, far harder than their advocates acknowledge, and in all likelihood, realize.  Breathless claims of how the First Amendment can’t possibly protect whatever evil lurks in the hearts of their enemies, however, won’t fly.  They have a long, long way to go to find real words, with real definitions and real limitations, so that the First Amendment isn’t offended.

Or, they can prevail before the Supreme Court in the creation of a new categorical exception to the First Amendment for hurt feelings, and cover up the inadequacies of their scholarish arguments.