Albany County legislators may be forced to draft a new cyberbullying law if the state’s top court rules in favor of advocates arguing it violates the First Amendment.
The state Court of Appeals on Thursday, June 5, heard arguments on whether the county’s cyberbullying law violates constitutionally protected speech. The legal challenge stems from the June 2011 arrest of a 15-year-old Cohoes High School student for cyberbullying. The teenage boy pleaded guilty to one count of cyberbullying and was sentenced as a youthful offender to probation for three years.
The teenager created the “Cohoes Flame” Facebook page, where he posted pictures of classmates and made mostly derogatory and sexually related comments.
“Albany County and any government has the right to protect minors from the infliction of emotional harm, and that’s a compelling interest,” said Albany County attorney Thomas Marcelle. “This case is the classic example of cyberbullying.”
Corey Stoughton, an attorney for the New York Civil Liberties Union Foundation representing the teenager, argued the law could not be saved without changing its scope, which isn’t the role of the court.
“Cyberbullying is a serious problem the government can and should address, but this is the wrong way to do it,” Stoughton said.
Spotlight News is not printing the name of the former Cohoes student because it is the paper’s policy to not release the name of anyone under the age of 18 charged, or convicted, of a misdemeanor or lesser offense.
Stoughton said there is “a constitutional right to say nasty things” in public about “purely private” people.
Court of Appeals Associate Judge Robert Smith said he was “having an intuitive problem with the idea there is a constitutional right for a 15-year-old boy to treat his classmates like this.”
Chief Judge Jonathan Lippman questioned Marcelle why the court should modify the law in an attempt to save it.
“Is that the job of the courts to be pruning around and trying to scope something that’s going to work, or is that the job of the legislature?” Lippman asked.
Marcelle argued the courts “have a duty to save” a law when possible.
Lippman said there are clearly issues with the law and questioned Marcelle on why the court should save the statute.
“Why doesn’t the legislature go and pass another statute that’s tightly drawn that actually one would look at in a focused way and make an easily ascertainable ruling as to whether it passes constitutional muster?” asked Lippman. “Why are we going through this exercise in what I think you’d agree it’s not the best statute in the world by anyone’s imagination?”
Marcelle asserted the teenager committed a crime and should be punished.
Lippman responded, “If you can find the crime.”
Marcelle replied the teenager communicated with no legitimate purpose with the intent to inflict emotional harm.
The county’s law defines cyberbullying as “a course of conduct or repeatedly committing acts of abusive behavior over a period of time by communicating” electronically or posting statements on the Internet. Examples of abusive behavior included in the law were “taunting, threatening, intimidating, insulting, tormenting, humiliating; disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information; or sending hate mail.”
The law prohibited anyone from cyberbullying “any minor or person,” with the “or person” being a point of contention for the NYCLU.
Albany County Court had said the law was too broad in banning bullying of any person, because historically its purpose was to protect minors.
Stoughton said there is a constitutional right “to be free from arrest” but not from “consequences for it,” such as civil lawsuits.
Stoughton said there are “really complicated constitutional” questions surrounding cyberbullying legislation. She said the county is at the forefront of addressing the legalities of the issue.
Lippman asked Marcelle if the court would be showing deference to the legislature if it re-scoped the law “to make it work.” Marcelle said he did believe the court would be since there was a severability clause included.
“That doesn’t mean you make a statute that has 99 parts to it and hope that two, or three, or four, or five are going to stick and then you are going to sever them,” Lippman said. “That’s no way to legislate.”
Marcelle said the legislature’s intent was to protect teenagers being bullied because some nationwide are driven to suicide as a result of cyberbullying.
Graffeo said she did not believe anyone was questioning the “laudable legislative purpose,” but asked if there was a precedent where a law had been redrafted to the same degree as what’s being proposed by the county.
Marcelle could not immediately give an example.
Associate Judge Victoria Graffeo also asked Marcelle if the law’s stated intent would pass “constitutional muster” and he replied, “Without a doubt.”
Smith asked if the county was conceding the law could not be applied to adults, but Marcelle would not concede.
“It is a weird statute as written,” Smith said. “What were they thinking?”
Marcelle said, “There’s 39 members of the Albany County Legislature — I often ask that question myself.”
The court is expected to make a decision within the next few weeks.