New York cyberbullying law violates First Amendment, state appeals court says

NEW YORK — The New York State Court of Appeals ruled Tuesday that a law criminalizing cyberbullying violated the First Amendment because it was so overbroad, it could criminalize constitutionally protected speech.

While more than a dozen states have laws criminalizing cyberbullying, this is the first time a court has ruled on the constitutional validity of this kind of law. The Student Press Law Center and four other advocacy organizations filed a friend-of-the-court brief in May asking judges to declare the New York law unconstitutional.

The 2010 Albany County law defined the crime of cyberbullying as electronic communication 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.” The law also banned sending hate mail.

Marquan Mackey-Meggs, the first person charged for violating the law, challenged it on First Amendment grounds in 2011. The 15-year-old high school student pleaded guilty after anonymously posting photos of classmates with derogatory sexual comments on Facebook.

The appeals court sided with Mackey-Meggs in a 5-2 decision. Judge Victoria Graffeo wrote in the majority opinion that while the law may have been well intended, its language didn’t ensure that there wouldn’t be a chilling effect on protected speech.

The judges rejected a suggestion from the county that they strike out some of the parts of the law, while still allowing other, less broad parts to remain.

“Doing so would not cure all of the law’s constitutional ills,” Graffeo said in the opinion. “As we have recently made clear, the First Amendment protects annoying and embarrassing speech, even if a child may be exposed to it.”

Albany County Executive Daniel McCoy said in a statement that he will work with elected officials write a new law addressing the cyberbullying concerns.

“While I am disappointed that the New York Court of Appeals struck down the Albany County Local Law C, the fact remains that the law is needed to protect children from cyber bullying,” McCoy said in the statement.

The New York Civil Liberties Union commended the ruling and called it a “victory for free speech,” according to a statement from the group. NYCLU senior staff attorney Corey Stoughton was the lead counsel on the case.

“Cyberbullying is a serious concern that all communities must confront, but there are better and more constructive ways to address the problem than giving children criminal records,” Stoughton said in the statement. “Communities across New York and the nation should take note that criminalizing First Amendment activity is unlawful and does nothing to address the causes of bullying or prevent it from taking place.”

Advocates for Children of New York, which signed the amicus brief alongside SPLC, is pleased with the ruling, said Dawn Yuster, the group’s School Justice Project director.

“Advocates for Children strongly supports positive approaches to discipline, such as ones that improve the school climate and keep kids out of jail,” Yuster said. “Both laws like this one and zero tolerance policies that push kids out of the classroom do nothing to respond to what causes bullying.”

Cyberbullying Research Center Co-Director Justin Patchin said that a criminal response to cyberbullying should be a last resort.

Patchin said while some states to have laws directing school districts as to what they should do in regard to cyberbullying, many states don’t provide the resources needed for schools.

“Passing additional criminal statutes won’t deter teens from this kind of behavior,” Patchin said. “We have a variety of options that we can try first … but if all else fails, potentially crafting a reasonable criminal law as a last resort is appropriate.”

Patchin said that the ruling showed that the court doesn’t have a problem with criminalizing cyberbullying, but they had concerns over the way Albany County crafted the language of its law.

Although the ruling only applies in New York, it could give insight as to how legislators can write a constitutionally valid cyberbullying law, Patchin said.

Contact Costa-Lima by email or at (703) 807-1904 ext 119.