The New York State Court of Appeals is considering the constitutionality of a 2010 Albany County law on cyberbullying.
The Albany law makes it a crime to communicate "private, personal, false, or sexual information," intended to "harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person."
Cohoes High School student Marquan W. Mackey-Meggs was the first to be charged under the new law, who in 2010 created a Facebook page called "Cohoes Flame Page". Mackey-Meggs posted photos of classmates with derogatory comments underneath. He was tried as an adult, and received three years of probation for the crime.
His lawyers appealed the decision, claiming the law breaks the First Amendment, freedom of speech, reports Robert Gavin for The Times Union. They state that wording such as "annoy" and "abuse" are too vague for such a law.
The conviction was sustained, but Albany County Judge Stephen Herrick made it clear the law should only apply to victims who are minors.
During this week's proceedings, Associate Judge Robert Smith asked Corey Stoughton, an attorney for Mackey-Meggs, if she could truly argue the law interfered with constitutional rights.
"Yes, your honor." Stoughton replied. "The First Amendment obviously is designed to protect public discourse but it's also meant to protect a realm of speech that shouldn't be criminalized or penalized."
County attorney Thomas Marcelle is asking that the law be reworked. He claims the law is necessary to protect children from emotional harm.
Joe Palazzolo of The Wall Street Journal writes that the law is making what used to be handled by schools into a criminal case.
"Now, Google his name in perpetuity, he's going to have this criminal record," said attorney Christian deFrancqueville . "It was a really stupid thing. It was not a nice thing. But there's a big difference between disciplining a child and showing them the error of their ways versus dragging them into a criminal court."
State laws do give schools the ability to deal with bullying by its students, but it is unclear how much authority they have outside school grounds.
Charges for breaking the law include up to one year in prison and a fine of $1,000.
Albany is one of over a dozen states to pass a cyberbullying law after a 13-year-old girl in Montana committed suicide in 2006. A neighbor pretending to be a boy on MySpace had harassed her.
A decision is expected by July.