Page 21 - January 2020 BarJournal

CRIMINAL LAW FEATURE

R.C. 2907.66, also enacted by Am. Sub. H.B. pertaining to a minor” “[w]ith the intent to While R.C. 2917.211 is admittedly a
497, provides that a victim of a violation of intimidate or torment a minor” — violated different statute from the North Carolina
R.C. 2917.211 may commence a civil cause of the First Amendment to the United States and New York cyberbullying statutes,
action against the offender for: (1) a temporary Constitution, as applied to the states through overbreadth and/or vaguenss concerns are
restraining order or injunctive relief, (2) the Fourteenth Amendment. In so holding, present. For example, what constitutes an
compensatory and punitive damages, (3) the court determined that the statute in “other depiction or portrayal” of a person?
reasonable attorney’s fees, and/or (4) costs question restricted speech and not just Recall that “image” is defined to include
of bringing the action. This statute further expressive conduct; that the restriction created “other depiction or portrayal of a person”
provides that a victim of R.C. 2917.211 shall was content based, not content neutral; and in R.C. 2917.2112(A)(2).Further, what
be presumed to have suffered harm as a result that the statute’s scope was not sufficiently does “state of nudity” mean? Although
of the violation. This statutory cause of action narrowly tailored to serve the state’s asserted “nudity” is defined in R.C. 2907.01 (which
is in addition to any other cause of action interest in protecting children from the harms now applies to R.C. 2917.211), what does
available under statutory or common law. resulting from online bullying. Ultimately, the “nudity” mean when coupled with the
While the general assembly’s intentions Court held that the State’s interpretation of the qualifier “state of”? Is a semi-transparent
were no doubt commendable, this newly statute “would essentially criminalize posting shirt sufficient to qualify as “state of
enacted law has significant enforceability and any information about any specific minor if nudity”? And what does “intent to harm
constitutional flaws. From an enforceability done with the requisite intent.” the person in the image” mean? Could the
perspective, the key flaw can be found in R.C. Similarly, in its opinion in People v. Marquan mere act of posting an image constitute
2917.211(B)(5), which requires as an element M., 2014 WL 2931482 (Ct. App. NY July 1, 2014), “intent to harm”? Would dissemination
of the offense that the “image is disseminated the New York Court of Appeals found that a of an embarrassing image of a person
with intent to harm the person in the image.” local Albany Law criminalizing cyberbullying wearing a wet t-shirt constitute a violation
This inclusion will no doubt result in an was unconstitutionally overbroad under the of R.C. 2917.211? Would dissemination
inability to charge and/or convict numerous First Amendment. of a drawing of a person in a wet t-shirt
instances of nonconsensual dissemination In Marquan M., a high school student constitute a violation of R.C. 2917.211(B)?
of such images. It is not difficult to imagine in Albany County created a Facebook page In conclusion, although the intent of the
a scenario where an ex-boyfriend or ex- using a pseudonym and anonymously general assembly is admittedly laudable —
girlfriend shared images of his or her ex in a posted sexual information and photographs no one would argue that people should be
“state of nudity” or “engaged in a sexual act” of his classmates with “detailed descriptions protected for nonconsensual dissemination
with his or her friend, only to have his or her of their alleged sexual practices and of private images — it appears that R.C.
friend disseminate those images, thus causing predilections, sexual partners and other types 2917.211 has some significant constitutional
harm to the victim, but with no recourse of personal information.” He was charged and enforceability problems that may
under these newly enacted statutes. In fact, under Albany County’s cyberbullying statute well render the general assembly’s intent
this was the very scenario described by a and ultimately pleaded guilty to the offense, essentially unenforceable.
proponent of H.B. 497. while reserving the right to appeal. Albany
From a constitutional perspective, R.C. County’s law criminalized:
2917.211 is subject to constitutional attack “any act of communicating or causing a Larry W. Zukerman is an attorney
on the grounds that the statute is overbroad communication to be sent by mechanical at Zukerman, Lear & Murray Co.,
and/or vague. In fact, R.C. 2917.211(B)(5) or electronic means, including posting LPA. He has been a CMBA
was the subject of criticism by the “Cyber statements on the internet or through a member since 1985. He can be
Civil Rights Initiative” (CCRI) while the computer or email network, disseminating reached at (216) 696-0900 or
legislation was pending. In its “Analysis and embarrassing or sexually explicit lwz@duiohio.com.
Recommendations,” CCRI opined that this photographs; disseminating private,
provision (R.C. 2917.211(B)(5)) “transforms personal, false or sexual information,
what would otherwise be a robust privacy or sending hate mail, with no legitimate S. Michael Lear is an attorney at
law into an ineffective, duplicative, and likely private, personal, or public purpose, with Zukerman, Lear & Murray Co.,
unconstitutional harassment law.” the intent to harass, annoy, threaten, abuse, LPA. He has been a CMBA
Some recent examples of “cyberbullying” taunt, intimidate, torment, humiliate, or member since 1990. He can be
statutes being struck down as unconstitutional otherwise inflict significant emotional harm reached at (216) 696-0900 or
sheds some light on the problems inherent in on another person.” sml@zukerman-law.com.
R.C. 2917.211. In North Carolina v. Bishop, Finding the law to be unconstitutionally
368 N.C. 869, 787 S.E.2d 814 (2016), the overbroad, the New York Court of Appeals
North Carolina Supreme Court held that a reasoned that “the provision would criminalize Adam M. Brownis an attorney at
statute similar to R.C. 2917.211 — a North a broad spectrum of speech outside the popular Zukerman, Lear & Murray Co.,
Carolina cyberbullying statute that prohibited understanding of cyberbullying, including, LPA. He has been a CMBA
any person from using a computer to “[p]ost for example: an email disclosing private member since 2015. He can be
or encourage others to post on the Internet information about a corporation or a telephone reached at (216) 696-0900 or
private, personal, or sexual information conversation meant to annoy an adult.” amb@zukerman-law.com.

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