New York Court Deems Cyberbullying Law Unconstitutional

In a 5-2 decision, New York’s Court of Appeals deemed a 2010 Albany County law that criminalizes cyberbullying to be unconstitutional this past Tuesday.  

The law, designed to protect children, was found to be in violation of the First Amendment because the language used was too vague, including terms such as “any act of communicating … by mechanical or electronic means”…meant to “harass, annoy, threaten … or otherwise inflict significant emotional harm on another person … with no legitimate private, personal, or public purpose.”

The law did not limit language to a person but also included any language about a person, according to Eugene Volokh writing for The Washington Post.

“It appears that the provision would criminalize a broad spectrum of speech outside the popular understanding of cyberbullying,” Judge Victoria Graffeo wrote for the court, “including, for example, an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult.”

Judge Robert Smith stated a law could be passed which outlawed cyberbullying while still respecting free speech rights by having the law only apply to children and taking out certain vague terms, such as “hate mail”, writes Daniel Wiessner for Reuters.

According to Tim Cushing for Techdirt, the majority abandoned an idea to take out the terms that violate free speech while leaving the rest of the law alone.

“We conclude that it is not a permissible use of judicial authority for us to employ the severance doctrine to the extent suggested by the County or the dissent. It is possible to sever the portion of the cyberbullying law that applies to adults and other entities because this would require a simple deletion of the phrase ‘or person’ from the definition of the offense. But doing so would not cure all of the law’s constitutional ills.”

Albany County Executive Daniel McCoy said he will work with county lawmakers “to craft a (new) law that both protects free speech and keep kids safe.”

The decision came as the result of a 2011 case involving a Cohoes High School student who was the first to be charged under the new cyberbullying law.

Marquan W. Mackey-Meggs had created a Facebook page called “Cohoes Flame Page” where he posted photos of classmates “with detailed descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information”.

Mackey-Meggs pled guilty to one count of cyberbullying and received three years probation for the crime, while retaining his right to appeal the constitutionality of the law.

The decision could affect other high courts in similar cases.  Aside from Albany, four other New York counties as well as over a dozen states have similar laws.

Justin Patchin, professor at the University of Wisconsin-Eau Claire, is pleased the courts did not rule all cyberbullying laws to be unconstitutional.

“The problem is, it’s going to be really tricky to write a law that is comprehensive in its coverage of bullying and at the same time passes Constitutional muster,” he said.