New York Court Strikes Down Cyberbullying Law

     ALBANY, N.Y. (CN) – A law meant to protect minors from cyberbullying tramples speech protected by the First Amendment, New York’s highest court ruled.
     Though juvenile bullying is nothing new, lawmakers in Albany County took action in 2010 out of concern that computers, cellphones and other electronic devices in today’s 24/7 online world had created a new breed of sometimes anonymous “cyberbullies” and ratcheted up the known emotional harm.
     Albany County made cyberbullying a misdemeanor offense punishable by up to a year in jail and a $1,000 fine.
     The New York Court of Appeals found Tuesday that the statute attempted to serve a “laudable public purpose,” but encompassed “far more than acts of cyberbullying against children by criminalizing a variety of constitutionally protected modes of expression.”
     Soon after the new statute took effect, a high school student put up a Facebook page that he used to anonymously post “repulsive” rants on the sexual exploits of other students, many of whom he called out by name and photograph, the court said.
     A police investigation identified the poster as Marquan M., a 15-year-old attending Cohoes High School in suburban Albany County.
     Charged with cyberbullying, Marquan tried unsuccessfully in Cohoes City Court to have the charges dismissed on constitutional grounds. Though he pleaded guilty to one count of cyberbullying, Marquan reserved his right to raise the protected-speech argument on appeal.
     Though both the city and county court upheld the law’s targeting of activities directed at minors, the Court of Appeals reversed 5-2 last week and ordered dismissal of the accusatory instrument against Marquan.
     The First Amendment’s free speech clause bars government restriction of speech except in a handful of categories – “fighting words, true threats, incitement, obscenity, child pornography, fraud, defamation or statements integral to criminal conduct,” the court noted.
     But because the government “unquestionably has a compelling interest” in shielding children from harmful expressions of speech, cyberbullying directed at minors might not enjoy First Amendment protection, the court said.
     “Our task therefore is to determine whether the specific statutory language of the Albany County legislative enactment can comfortably coexist with the right to free speech,” Judge Victoria Graffeo wrote for the majority.
     Free-speech challenges usually contend that laws are overbroad or vague, and Albany County’s statute shows “alarming breadth” in encompassing various types of protected speech, according to the ruling.
     “As written, the Albany County law in its broadest sense criminalizes ‘any act of communicating … by mechanical or electronic means … with no legitimate … personal … purpose, with the intent to harass [or] annoy … another person,'” Graffeo wrote.
     It also includes “every conceivable form of electronic communication, such as telephone conversations, a ham radio transmission or even a telegram,” she added.
     Graffeo noted that Albany County conceded the law’s faults but “asks us to sever the offending portions and declare that the remainder of the law survives strict scrutiny.”
     That would result in “a tightly circumscribed cyberbullying law” that includes only three types of electronic communication sent with the intent to harm children: sexually explicit photographs, private or personal sexual information, or false sexual information with no public, private or personal purpose, the court found.
     In declining to order rewriting, the court cited the separation of judicial and legislative powers.
     “Even if the First Amendment allows a cyberbullying statute of the limited nature proposed by Albany County, the local law here was not drafted in that manner,” Graffeo wrote. “Albany County therefore has not met its burden of proving that the restrictions on speech contained in its cyberbullying law survive strict scrutiny.”
     “We therefore hold that Albany County’s Local Law No. 11 of 2010 – as drafted – is overbroad and facially invalid under the free speech clause of the First Amendment,” she added.
     Chief Judge Jonathan Lippman and Judges Susan Read, Jenny Rivera and Sheila Abdus-Salaam concurred.
     Judge Eugene Pigott joined a five-page dissent in which Judges Robert Smith said the county’s suggested narrowing of the statute would make all the difference.
     “Once these deletions are made, I see nothing in the law that renders it unconstitutional,” Smith wrote.
     Corey Stoughton of the New York Civil Liberties Union Foundation in Manhattan represented Marquan. Thomas Marcelle, Albany County attorney, argued for the county.
     The Albany Times Union, which identified the Cohoes student as Marquan Mackey-Meggs, said he already had been sentenced to probation.

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