The state's top court heard arguments Thursday on the constitutionality of Albany County's cyber-bullying law, leading its top judge to question why county lawmakers do not just pass a new law.
Chief Judge Jonathan Lippman suggested the cyber-bullying law was flawed and asked county attorney Thomas Marcelle if a more narrow version of the law might be the ultimate solution.
"Why are we going through this exercise?" Lippman asked during arguments on the law at the Court of Appeals. "I think you would agree — it's not the best statute in the world in anyone's imagination. Why are we doing this? What's the purpose?"
The genesis of the legal battle before the high court is the June 14, 2011 arrest of Marquan Mackey-Meggs who, at the time, was a student at Cohoes High School. The prior December, Mackey-Meggs launched an anonymous Facebook page called the "Cohoes Flame" full of expletive-laced posts about fellow students ages 13 to 16. He mentioned them by name, claiming they had several sexual partners or that, in other cases, were gay.
Mackey-Meggs later pleaded guilty but appealed on constitutional grounds.
Marcelle conceded to Lippman the cyber-bullying law was partly problematic in extending its range to all people, not just children where the issue of bullying — and cyber-bullying in particular — is now a major public concern. But Marcelle argued the law is a necessary statute to protect children from emotional harm in schools. He said Mackey-Meggs inflicted such emotional harm on his fellow students.
He told Lippman the Court of Appeals could retool the law. The top judge said that was no way to legislate, and he asked Marcelle why the law, in its present form, should be saved.
"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 it reasonably ascertainable for ruling as to whether it passes constitutional muster?" he asked.
Corey Stoughton, an attorney for the New York Civil Liberties Union Foundation representing Mackey-Meggs, contends the law violates the First Amendment, which protects freedom of speech.
The law defines cyber-bullying to include "sending 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."
Stoughton told the seven-judge panel the law should address "true threats" to children, as opposed to the type of protected speech that is prevalent throughout the Internet. Associate Judge Eugene Pigott suggested to Stoughton that she was opposed to any bullying law, not just one targeting cyber-bullies. Stoughton initially answered that she believes a narrower statute might be appropriate. She noted the state has stalking laws.
Pigott pressed for an answer.
"It would be discreetly certain things — assault, harassment, things like that — but bullying itself would too vague to be a crime?" Pigott asked. Read Full Article
"I think that's right," Stoughton responded.
Mackey-Meggs was charged with eight counts of violating the county's cyber-bullying law and then failed to get his case dismissed on grounds that his speech was protected by the First Amendment, which prohibits any law curtailing freedom of speech. Cohoes City Court Judge Richard Maguire upheld the law. Mackey-Meggs pleaded guilty to a single count of cyber-bullying, admitting he electronically disseminated false sexual information to inflict emotional harm on a minor. However, he did so on the grounds that the plea deal would not prevent him from appealing the conviction on its constitutionality. Albany County Judge Stephen Herrick upheld the conviction but determined the law should only apply to victims who are minors.
During Thursday's arguments, Associate Judge Robert Smith asked Stoughton if she could truly argue that the law interferes with basic constitutional right of Mackey-Meggs.
"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."
Marcelle argued that in 2003 the U.S. Supreme Court, citing the First Amendment, struck down a Virginia state law that prohibited cross burning, but allowed the law to apply if the crosses were burned with the intent to intimidate.
The case is expected to be decided by early July.