Being a cyberbully in Albany County is no longer a crime, at least for now.
The state Court of Appeals struck down the county’s cyberbullying law in a 5-2 decision Monday, July 1, with the majority ruling the statute as written was too broad and violated the Free Speech Clause of the First Amendment. The legal challenge stemmed from the arrest of a 15-year-old Cohoes High School student on cyberbullying charges in June 2011.
The court’s decision describes how a more focused statute applying only to minors would stand. Albany County Executive Dan McCoy vowed to work with legislators to draft a new law.
“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,” Corey Stoughton, an attorney for the New York Civil Liberties Union Foundation representing the teenager, said in a prepared statement.
The teenage boy pleaded guilty to cyberbullying, with the understanding it did not preclude him from challenging the law’s constitutionality. He 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.
“Although the First Amendment may not give the 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,” Associate Judge Victoria Graffeo said in the majority opinion.
Chief Judge Jonathan Lippman and judges Susan Phillips Read, Jenny Rivera and Sheila Abdus-Salaam joined Graffeo in striking down the law. The dissenting judges were Robert S. Smith and Eugene Pigott Jr.
The only other instance of cyberbullying charges was against four Guilderland teenagers in November of last year. The four boys allegedly were involved in posting an explicit rap song online, which detailed alleged sexual encounters of fellow students.
Andrew Safranko, an attorney representing one of the Guilderland teenagers, agreed with the court’s ruling.
“We had thought all along the statute was constitutionally broad and violating of first amendment rights as it was written,” said Safranko.
Safranko’s client, along with the other three Guilderland teens, will have his case dismissed. The case was scheduled to be heard by the court in the fall.
All four boys were suspended from Guilderland High School for a period of time.
NYCLU Executive Director Donna Lieberman said schools statewide already must follow the Dignity for All Students Act and should “find other constructive ways” to address bullying.
“Arresting children for what they say or write won’t create safe, nurturing schools,” Lieberman said in a prepared statement. “It takes a positive educational approach, not jail or handcuffs, to teach children how to treat each other with decency and respect.”
The Dignity for All Students Act was implemented in 2010 and addressed bullies’ actions within the confines of school walls. Districts are required to train educators to identify and address bullying, along with providing programming teaching children to treat others respectfully.
Amendments were made in 2012 to the state law to address forms of cyberbullying, but county lawmakers passed its cyberbullying law in 2010.
Albany County’s law expanded the focus to directly address online bullying, but in a way the court ruled as being too broad. A targeted approach toward youths would likely pass constitutional muster.
McCoy said he plans to work with county legislators to draft a new cyberbullying law.
“We are not looking to take away anyone’s first amendment rights. What we are trying to do is protect children,” McCoy said. “Sometimes you don’t get it right out of the gate, but someone had to do it.”
The county’s law had defined 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 NYCLU contending the “or person” in court.
The misdemeanor charge carried a fine up to $1,000 and up to one year in prison.
McCoy said some legislators have expressed interest in drafting a new cyberbullying law.
“I want to make sure that a kid can just be a kid,” McCoy said. “They shouldn’t have to worry about all this stuff. I am not trying to put laws on the books that make no sense.”