State's top court questions efficacy of cyberbullying law

The Enterprise — Marcello Iaia

The Court of Appeals, New York’s highest court, heard arguments on June 5 in “People v. Marquan M,” in which the judges questioned the soundness of Albany County’s law criminalizing cyberbullying, apparently the first of its kind in the country.

— Photo from Court of Appeals video recording

“Why can’t you limit this to minors?” Court of Appeals Judge Jenny Rivera asks Corey Stoughton, foreground, who is with the New York Civil Liberties Union and represented a Cohoes High School student arrested under Albany County’s cyberbullying law. The law was also used last year to arrest four Guilderland teens who posted a rap.

— Photo from Court of Appeals video recording

“The First Amendment is meant to protect...a realm of speech,” argues Corey Stoughton before the state’s top court on June 5 in a case testing a law passed by Albany County in 2010, criminalizing cyberbullying. Thomas Marcelle, the attorney for Albany County, listens in the foreground while taking notes.

— Photo from Court of Appeals video recording

“Is that bullying?” Judge Sheila Abdus-Salaam asks of a reference to cottage-cheese legs posted on a 15-year-old’s web page about a high school classmate. Court of Appeals judges last week questioned the soundness of Albany County’s law criminalizing cyberbullying.

ALBANY — A law was on trial at the state’s top court Thursday afternoon. Scarce mention was made of the guilt or innocence of the 15-year-old Cohoes High School student, Marquan W. Mackey-Meggs, who was arrested for cyberbullying in June 2011.

Rather, the focus in “People v. Marquan M.” was on the law the Albany County Legislature had adopted in 2010, criminalizing cyberbullying.

The seven Court of Appeals justices — four women and three men — sat in the traditional oak paneled courtroom that opened in the 19th Century, long before computers were conceived of, to break new ground on cyberbullying. They peppered the lawyers on both sides with questions. Every justice had something to ask.

Justice Victoria A. Graffeo asked Mackey-Meggs’s lawyer, Corey Stoughton, of cases on cyberbullying in other places in the country to which the court might refer. “Or are we on the forefront of evaluating cyberbullying?” Graffeo asked.

Stoughton, who is with the New York Civil Liberties Union, could think of no other cases. “This is the forefront,” she said.

The court is expected to make its decision in late June or early July.

The law, introduced by Albany County Legislator Brian Scavo, was passed two years before the state enacted the Dignity for All Students Act in 2012, requiring school districts to come up with policies that dealt with cyberbullying both on and off school grounds, to fill what legislators perceived as a gap since there was no statewide or federal legislation prohibiting bullying.

The county’s law was applied in Guilderland last November when Guilderland Police arrested four Guilderland High School juniors, all males, on misdemeanor charges. The four students — two of them were 16 and two of them were 17 — had made a five-minute rap recording, called “Guilderland Sophomore Rap,” naming sophomores, mostly females, at their school, making vulgar and sexually explicit comments about many of them. The five-minute rap was posted on Nov. 11 and was removed the next day by one of the students who posted it.

After a press conference announcing their arrest, the four young men appeared in Guilderland Town Court with youthful-offender status so that the disposition of their cases is not known. The cases are sealed by the court as is Mackey-Meggs’s; court papers and the justices referred to him simply as “Marquan M.”

Guilderland’s Captain Curtis Cox said at the time of the arrest that “at least two” of the “20 or so” students named in the rap had complained. “We had to have a victim that felt bullied,” said Cox, in order to make an arrest. He also said, “We applied the YouTube video to the law and it fit.”

The county’s law says, “Cyber-bullying shall mean engaging in a course of conduct or repeatedly committing acts of abusive behavior over a period of time by communication or causing communication to be sent by mechanical or electronic means, posting statements on the internet or through a computer network, acts of abusive behavior shall include, but not be limited to, taunting; threatening; intimidating; insulting; tormenting; humiliating; disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information; or 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.”

The law further states “No person shall engage in cyber-bullying against any minor or person in the county of Albany.”

Court history

Mackey-Meggs was arrested for posting pictures of 10 classmates, with derogatory and sexual comments, on a “Cohoes Flame Page” he created on Facebook.

On Dec. 1, 2011, Richard R. Maguire, Cohoes City Court judge, who dismissed eight harassment counts, denied Mackey-Meggs’s motion to declare the cyberbullying law unconstitutional. Mackey-Meggs argued that the law criminalized protected speech and was unconstitutionally vague and overbroad.

When Maguire denied his motion to dismiss, rejecting his constitutional claims, Mackey-Meggs pleaded guilty to one count of cyberbullying and was sentenced as a youthful offender to three years of probation.

The case was subsequently appealed to the Albany County Court, where Judge Stephen W. Herrick, on May 20, 2013, confirmed the conviction, rejecting the free-speech claim.

Herrick stated, “ the extent that pure speech is implicated, constitutional protections are not absolute — especially where, as here, substantial privacy interests are being invaded in an intolerable manner....”

Further, Herrick said that the law is overbroad in prohibiting bullying of any “person,” since its history and purpose address only the protection of minors, but “person” could be severed and enforcement limited to bullying of minors. He found the law is not void for vagueness.

Mackey-Meggs contended that, although Albany County “may be able to criminalize fighting words, incitement, obscenity, and true threats, it cannot go further.” He argued that the cyberbullying law goes further by regulating communication that is private, personal, false or sexual, which, he contends, would include “the vast majority of postings on common social media sites such as Facebook, Twitter, Google Plus, and MySpace.”

He argues further, “The Cyber-bullying Law is an unconstitutional regulation of speech because its terms reach far beyond the narrow categories of unprotected speech that the government may regulate — namely, fighting words, incitement, obscenity, and true threats — and its criminalization of speech based on content fails strict scrutiny.”

He also argues that, while his speech on Facebook “may rightly be punished by parents and educators, it cannot be criminalized because it does not fall into any of the narrowly defined categories of speech unprotected by the First Amendment.”

Albany County, however, maintains “the law sets forth a mental element, requiring that a defendant’s actions be made ‘with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate or otherwise inflict significant emotional harm on another person.’” So, the county argues that the cyberbullying law is “narrowly tailored to target only that speech which constitutes bullying. Criminalization of this speech is both necessary and proper given the long lasting and traumatic effects of bullying,” the county argues.

Current arguments

At Thursday’s Court of Appeals session, Chief Judge Jonathan Lippman’s first question was, “Why can’t the statute be salvaged even if there are some things wrong with it?”

Graffeo followed by asking Stoughton why the law couldn’t be changed to apply just to minors as the county court had done.

Stoughton responded that there were many problems with the “overbroad” law. She gave the example of someone being upset that her neighbor’s children were continually loud, and posting nasty comments about them to an online neighborhood forum. She noted that, while such expression “isn’t laudable,” it is allowable under the First Amendment.

“People shouldn’t even have to go through the process of fearing arrest,” said Stoughton.

Much prevalent Internet behavior would run afoul of the law, she said, citing several examples. The law needs to stick to well-established categories of unprotected speech, said Stoughton, to “true threats.”

“Are you saying that your client had a constitutional right to post the stuff he posted?” Justice Robert S. Smith asked.

“Yes,” responded Stoughton.

“Your argument is you don’t think bullying should be a crime?...It can be discreetly certain things — assault, harassment, things like that? But bullying itself is too vague to make a crime?” asked Justice Eugene F. Pigott Jr.

“I think that’s right,” responded Stoughton.

“You can find other ways to address bullying, but you just can’t make it a crime?” asked Justice Jenny Rivera.

“Exactly,” responded Stoughton.

She went on to say that the county’s law creates “a gap between what is written on paper and what would actually be enforceable in a courtroom.”

“Are you entitled to your plea back and do you want your plea back?” asked Judge Robert S. Smith.

“Absolutely,” responded Stoughton, adding, “They pleaded to a statute that never existed.”

Lippman began his questioning of Thomas Marcelle, the attorney for Albany County, with the inverse of the question he had asked of Stoughton: “It’s possible to save this statute?”

“Absolutely,” said Marcelle, suggesting it could be confined to minors.

“Is that the job of the court ...or is that the job of the legislature?” asked Lippman of severing words or phrases from the law.

Marcelle suggested striking all the examples cited in the law after the word “include.”

He referenced a United States Supreme Court decision that, while cross-burning could not be banned, if it is done with the intent to intimidate, then it is a crime.

Marcelle said of civil as opposed to criminal suits, “If you can sue and collect damages for speech, it makes no difference if it’ or probation.”

Pigott gave an example of high school kids who post insulting messages about another, rival high school — calling “the Bulldogs, puppies,” for example — and asked, “Would that be cyberbullying?”

“No,” responded Marcelle, adding that neither would the example cited by Stoughton of a neighbor angry over loud children. He said the difference between both of those hypothetical cases as opposed to the cases, like Mackey-Meggs’s, for which the law is needed, is, in the two examples, there is no intent to inflict significant emotional harm.

“Teenage nonsense over sports teams is not a crime,” said Marcelle.

He argued that the county’s law has two limiting clauses: the “specific intent clause” and the “no legitimate purpose clause.” These, he said, narrow the statute.

He also said, “If you inflict harm with no’ve crossed the line.”

“Is there a difference between legitimate and lawful?” asked Rivera.

“A slight difference,” answered Marcelle, without elaborating.

“Can you give me an example?” asked Rivera.

“It’s a tough question, Judge...” responded Marcelle.

“If you can’t figure it out as a lawyer,” said Rivera, “how can someone else figure it out?”

Justice Sheila Abdus-Salaam cited a mild example from Mackey-Meggs’ page, referencing a student’s cottage-cheese legs, and asked, “Is that bullying?”

“ was not that individual post,” said Marcelle.

“It’s the totality of it?” asked Abdus-Salaam. “One or two things, no problem?”

“It depends on his inflict significant emotional harm,” said Marcelle.

“Why doesn’t the legislature go and pass another statute that’s tightly drawn?...I think you’d agree it’s not the best statute in the world by anyone’s imagination...Why are we doing this?” asked Lippman.

“Marquan committed a crime and should be punished,” said Marcelle.

“If you can find the crime,” rejoined Lippman.

Marcelle went on, later, about the intent of the legislature to protect teenagers and prevent the sort of bullying, covered widely in the media, that has led to suicide. “This is a real problem in 2014,” said Marcelle, noting that home, for some students, “is no longer a safe haven.” The government needs to act, he said.

While Graffeo said those were laudable goals, she went on, “The question is, do we have any precedent where we have so significantly re-drafted or re-interpreted a statute?”

Returning to the wording of the county law, Smith asked of those who drafted it, “Why would you say ‘minor or person’ if you were just going to say ‘person’?” He asked, “What were they thinking?”

Marcelle replied that the legislature has 39 members. “I often ask that question myself,” he said as, for the first time in the often tense half-hour session, laughter rippled through the packed gallery.

In her rebuttal, Stoughton said that the county is asking the court to create a new category.

“I’m just having an intuitive problem with the idea there is a constitutional right for a 15-year-old boy to treat his classmates like this,” said Smith.

“There’s a constitutional right to be free from arrest for treating your classmates like this,” Stoughton responded. “But there’s not a constitutional right to be free of consequences for it.”

She went on, “The county is ultimately asking the court to create a new category of unprotected speech, which is something the Supreme Court has been very cautious against, and I think that this court fairly has been, too.”

Stoughton referenced the problem of vagueness just raised by some of the judges and concluded that, in the case of the legs-like-cottage-cheese comment or the sports-rivalry slurs inspiring an irate “helicopter parent” to seek remedy, “From the statute, a reasonable person who was motivated to arrest that person could look at the statute” and make an arrest for those comments.

“And,” she said, “they might go out and do it, and that is the essence of what is wrong with the statute.”

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