A local law adopted to criminalize cyberbullying violates the First Amendment because it is overly broad in what it restricts, New York’s highest court ruled Tuesday. The ruling has potential implications for policymakers around the country, who have sought to eliminate computer-based bullying through mandated school discipline policies and criminal statutes.
The case involved an incident involving Marquan W. Mackey-Meggs, a student at Cohoes High School in Cohoes, N.Y., who was arrested in June of 2011 for creating a Facebook page entitled “Cohoes Flame” to which he posted photos of classmates with derogatory and sexual captions. He was charged with a misdemeanor under an Albany County law, which prohibited cyberbullying, describing it as any act of electronic communication that disseminates “embarrassing or sexually explicit photographs"; “private, personal, false or sexual information"; or “hate mail, 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.”
But the law was written so broadly that it could apply to acts well out of the scope of its authors’ intentions, even a ham radio transmission or a telegram meant to annoy an adult, the court said in its ruling.
There is undoubtedly general consensus that defendant's Facebook communications were repulsive and harmful to the subjects of his rants, and potentially created a risk of physical or emotional injury based on the private nature of the comments. He identified specific adolescents with photographs, described their purported sexual practices and posted the information on a website accessible world-wide. Unlike traditional bullying, which usually takes place by a face-to-face encounter, defendant used the advantages of the internet to attack his victims from a safe distance, twenty-four hours a day, while cloaked in anonymity. Although the First Amendment may not give defendant the right to engage in these activities, the text of Albany County's law envelops far more than acts of cyberbullying against children by criminalizing a variety of constitutionally-protected modes of expression. 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."
The ACLU of New York praised the ruling, calling it a “victory for free speech.” A broader state law requires schools to document, report, and seek to resolve bullying, stopping short of making it a criminal offense, the ACLU and the court noted. The offending local law was enacted to protect students from cyberbullying before the state law was amended to include it.
“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,” NYCLU Senior Staff Attorney Corey Stoughton, the lead counsel on the case, said in a 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.”
It is understandable that policymakers are taking aim at bullying incidents, which have grabbed headlines after events like teen suicides in recent years. And schools are increasingly concerned about the incidents, not just because the well-being of their students is at stake, but also because they are increasingly dealing with lawsuits challenging their responses to peer harrassment. In Illinois, for example, the father of a teen who committed suicide recently sued his son’s former school, saying that the school did nothing to help his son when other students taunted him and physically hurt him.
Although school districts and invidividual communities have tackled cyberbullying through local policies and ordinances, much of the work takes place on the state level.
A version of this news article first appeared in the Rules for Engagement blog.