ALBANY COUNTY — The state’s top court has determined that Albany County’s law criminalizing cyberbullying is “overbroad and facially invalid under the Free Speech Clause of the First Amendment.”

The decision, written by Judge Victoria A. Graffeo for the majority, was released Tuesday morning. Two of the court’s seven judges, Robert S. Smith and Eugene F. Pigott Jr., dissented, stating that parts of the law could be severed, leaving the rest constitutionally valid. Graffeo, however, cites the doctrine of separation of governmental powers, preventing a court from drastically rewriting law.

During arguments earlier this month, Graffeo had asked the plaintiff’s lawyer for cases on cyberbullying in other places in the country to which the court might refer; there were none. “This is the forefront,” replied Corey Stoughton, with the New York Civil Liberties Union.

The county adopted the law in 2010 before the state legislature amended the Dignity for All Students Act in 2012 to prohibit bullying through electronic communication.  A 15-year-old Cohoes High School student, Marquan W. Mackey-Meggs, was arrested in June 2011 for cyberbullying after he posted pictures of classmates online with vulgar allegations.

Albany County Executive Daniel McCoy told The Enterprise on Tuesday afternoon that he hoped to have a new cyberbullying law in place within four or five months.

“Was I disappointed they shot it down?” he asked, answering himself, “Absolutely.”

He went on, “But the Court of Appeals gave us a great recommendation to re-write it.”

Seeing what the Cohoes High School student had posted, McCoy said, broke his heart. “He should have apologized instead of fighting this,” he said.

Mariko Hirose, a staff attorney with the New York Civil Liberties Union, told The Enterprise Tuesday evening that she was “not aware” of Mackey-Meggs’s reaction to the decision.

The NYCLU hailed the decision has “a victory for free speech.”

“We hope the decision sends a message to Albany County and other counties that throwing kids in jail is not the right way to deal with cyberbullying,” Hirose said. “There are other ways to create safe environments.”

Asked what they might be, she said, “through educational measures” and cited the Dignity For All Students Act.

McCoy stressed, “We’re not trying to go against First Amendment rights. We are trying to keep children from harm.”

He said the county legislature, the county attorney, and the district attorney would work together to re-write the law so “it can stand up in the Court of Appeals.” McCoy went on to say that technology is changing all the time and the law has to keep up with it.

He said, with his own three children, he doesn’t have to teach them how to play anymore, but he has to teach them to use technology responsibly. “It’s at their fingertips,” McCoy said of technology. “It’s everywhere. When you used to get bullied at school, you could go home; home was a sanctuary. Now you can’t escape it.”

Asked if the 2012 amendment to the Dignity For All Students Act, passed after the county felt it had to fill a void, wasn’t enough to deal with cyberbullying, McCoy said, “Schools are overburdened.” He named new initiatives like Common Core Standards and cutbacks, and said of schools, “They try to be all things...They need help. Parents need help.”

McCoy said he trusted police officers not to make arrests for comments like criticizing a kid’s purple hair and concluded, “I believe we can protect free speech and keep kids safe.”

The county’s law had been applied in Guilderland last November when Guilderland Police arrested four Guilderland High School juniors, all males, on misdemeanor charges. The four students 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 rap was posted on Nov. 11 and 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-Megg’s; court papers refer 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,” he said, in order to make an arrest. Cox also said, “We applied the YouTube video to the law and it fit.”

On Tuesday afternoon, Cox was philosophical about the law he had used to make the arrests being voided.

“This is not the first time a law has been overturned in court,” he said.

He noted that, since those arrested had been given youthful-offender status, “The whole process becomes secretive. I’m not even able to comment on where those cases stand.”

McCoy said he thought cases, like those in Guilderland, where charges were made on the overturned law, would be dropped.

Cecilia Walsh, spokeswoman for the Albany County District Attorney’s Office, said that defense attorneys would have to make motions for dismissal at Guilderland Town Court; she said the four Guilderland arrests were the only existing cases. Mackey-Meggs had pleaded guilty in Cohoes City Court to one count of cyberbullying and been sentenced to three years of probation.

Joseph A. Granich, an attorney representing one of the Guilderland teens, said, “It’s my understanding, based on the court’s ruling, that the statue is unconstitutional and therefore charges are technically dismissed.”

He also said, “We would hope the district attorney’s office would acknowledge that charges cannot stand.” He hopes he and the other lawyers representing the arrested students won’t be required to make individual motions for dismissal as that would “cost their parents more money,” he said.

No trial had taken place, Granich said, because “everybody knew this decision was coming.”

He also said that, separate from the court proceedings, the school district, independently, had held its own hearings and set up sanctions for the students, such as community service, which the students had satisfied.

Asked if the teens could be arrested under a different law or, later, a re-written county cyberbullying law, Granitch said, “I would not anticipate that for any of the four boys.”

He concluded, “Kids will be kids. Oftentimes, kids make mistakes. Those mistakes are dealt with differently today. People are too quick to resolve them in the court system, which has long-lasting, unfortunate effects....I’m not minimizing bullying but this leaves a blemish for life for a mistake you made at 15.”

Cox went on to say that the four Guilderland arrests had been warranted based on the law as it had been written. “We charged based on the law at the time,” he said. “We applied the law and it fit.”

During arguments before the Court of Appeals, Stoughton referenced the problem of vagueness in the law and said, “From the statute, a reasonable person who was motivated to arrest that person could look at the statute” and make an arrest, she said, adding, “And, they might go out and do it, and that is the essence of what is wrong with the statute.”

Cox, who has worked in law enforcement for 30 years, said, “When a police officer arrests, those are allegations.” He noted that it is not until a suspect is found guilty in court “beyond a reasonable doubt” that he or she is guilty. So, he said, it is not unusual to make an arrest that doesn’t stick.

On the Court of Appeals decision, Cox said, “It is what it is. We don’t have any control...It’s part of the job, we don’t have control.”

Cox said he does see a need for a cyberbullying law. Asked if such offenses couldn’t be handled by the schools, he said, “Cyberbullying extends beyond the boundaries of schools. There’s a need to have a law that deals with this type of behavior.”

The decision

During arguments, the seven justices had made scarce mention of the guilt or innocence of the 15-year-old Cohoes High School student arrested for cyberbullying; rather, they focused on the local law.

Graffeo frames her ruling by stating the court’s task was to decide if the local law comports with the Free Speech Clause of the first Amendment. At the start of her 15-page decision, she cites research on the recognized harmful effects of bullying, leading many schools and communities to sponsor anti-bullying campaigns.

“Despite these efforts, the problem of bullying continues,” Graffeo writes, “and has been exacerbated by technological innovations and the widespread dissemination of electronic information using social media sites.”

Albany County tackled the problem, she writes, quoting the law, because the State Legislature had failed to address it.

The county legislature defined the new crime as “any act of communicating or causing a communication to be sent by mechanical or electronic means, including posting statements on the internet or through a computer or email network, 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.”

Cyberbullying against “any minor or person” in the county was outlawed.

A month after the law became effective in November 2010, Mackey-Meggs created a Facebook page, posting photographs of classmates “with detailed descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information,” Graffeo writes.

Mackey-Meggs admitted his involvement and was charged but argued in court that the statue violated his right to free speech.

Stoughton contended that the law included a wide array of protected expression and was unlawfully vague. “The county concedes that certain aspects of the cyberbullying law are invalid but maintains that those portions are severable, rendering the remainder of the act constitutional,” writes Graffeo.

She goes on to state “It is well established that prohibitions of pure speech must be limited to communications that qualify as fighting words, true threats, incitement, obscenity, child pornography, fraud, defamation or statements integral to criminal conduct...Outside of such recognized categories, speech is presumptively protected and generally cannot be curtailed by the government.”

At the same time, Graffeo notes that cyberbullying is not conceptually immune from government regulation since “the government unquestionably has a compelling interest in protecting children from harmful publications or materials.”

But, she concludes that the language in Albany County’s law cannot “comfortably coexist with the right to free speech.” Citing the overbreadth and vagueness doctrines, Graffeo concludes, “The language of the local law embraces a wide array of applications that prohibit types of protected speech far beyond the cyberbullying of children.”

The law, for example, would criminalize a telephone conversation meant to annoy an adult, writes Graffeo.

She goes on to say that the county admits the statute is too broad, encroaching on recognized areas of free speech, and asks the court “to sever the offending portions and declare that the remainder of the law survives strict scrutiny.”

However, Graffeo states, “the doctrine of separation of governmental powers prevents a court from rewriting a legislative enactment through the creative use of a severability clause when the result is incompatible with the language of the statute.”

Graffeo notes, “It is undisputed that the Albany county statute was motivated by the laudable public purpose of shielding children from cyberbullying.” But, she states that the “judicial rewrite” to do that encroaches on the authority of the legislature.

She uses similar reasoning in applying the law to Mackey-Meggs. “There is undoubtedly general consensus that defendant’s Facebook communications were repulsive and harmful to the subjects of his rants, and potentially created a risk of physical or emotional injury based on the private nature of the comments,” she writes, but 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.”