Albany County legislators are hoping their new cyberbullying law sticks, but a legal challenge has already been threatened.
An overwhelming majority of county legislators passed a new bill Monday, Sept. 8, to prohibit cyberbullying in the county, with only four legislators voting against it. County officials drafted the new law after the state Court of Appeals struck down the original earlier this year for being too broad and violating the free speech clause of the First Amendment. The court’s decision essentially laid out what an acceptable statue would contain, so county officials aimed to follow that prescription.
“The court did not rule that any cyberbullying law would be unconstitutional, only that (the previous one) was too vague and broad,” said Bryan Clenahan, sponsor of the bill. “The court gave us a road map of what they would find constitutionally permissible.”
Clenahan, D-Guilderland, stressed that none of the seven Court of Appeals judges thought it was conceptually unconstitutional. He said the new law is more focused and more narrowly tailored, with it now only applying to minors.
“Freedom of speech is a very important value, but protecting students from harmful and derogatory statements is a very different issue, particularly when it is dealing with minors,” Clenahan said.
Kathy Manley, vice president of the Capital Region Chapter of the New York Civil Liberties Union, spoke against the proposed law, saying the types of speech it encompassed were too broad.
“This language creates the very problems that compelled the Court of Appeals to strike down the previous version,” Manley said. “It strings together descriptive categories of speech that have no recognized definition in the law, that are inherently imprecise and highly susceptible to subjective interpretation.”
She argued the proposed law would “turn children into criminals” because many engage in such conduct every day. She said the criminalization would only have a worse impact.
“If this proposed law, with the first section in place, goes forward, then the NYCLU will find itself in the same position that we were in 2010,” Manley said. “We successfully overturned the previous law, and we would be prepared to sue again if necessary.”
Marina Marcou-O’Malley, policy director of the Alliance for Quality Education, said in a statement that the cyberbullying law criminalizes behaviors and would “strengthen the pipeline between school and prison.” She said the zero tolerance approach, while not preventing bullying, would more likely discriminate against minority and LGBT youth.
Manley and Marcou-O’Malley said there are more effective methods to address bullying within schools.
Clenahan agreed education plays a role in addressing the issue, but said the law is still necessary.
“Education has an important role in this, but it is not the only role,” Clenahan said.
Legislator Tim Nichols, D-Latham, asked for his name to be removed as a co-sponsor even though he had supported the previous law and had intended to support the revised law.
“I’m obviously ambivalent about this law now, more so than I was when I came in today,” Nichols said.
Nichols said one of his children had “an incident” on the second day of school this year, which discouraged him. He said the punitive policy from the school appears misguided.
He said the school should counsel kids more in such situations and keep children in school.
“It made me think of this concept about the school to prison pipeline, of immediately going to a punitive model and punishing and not looking at a situation more holistically,” Nichols said.
Joining Nichols in voting against the bill was Merton Simpson, D-Albany, who also was troubled by the criminalization of children.
“You are asking young people to make decisions outside of the socialization context in which they are being raised,” Simpson said. “To criminalize our young people … seems to me a cure that is worse than the disease.”
Clenahan said the cyberbullying law would put children into the Family Court system, which is different from criminal court proceedings.
Legislator Patrice Lockart, R-Colonie, voted against the original law over constitutionality concerns, but supported the more focused bill adhering more closely to the original intent.
Albany County Executive Dan McCoy, who supported drafting a new cyberbullying law, will need hold a public hearing and sign off on the bill.