Legal Affairs: New York High Court Weighs In on Cyberbullying and Freedom of Speech

Apr 21, 2015 by Ellen Sampong, JD

Legal AffairsIf you have taken a constitutional law class at CalSouthern, you know that a law must not be vague or overbroad; it must be narrowly drawn so as not to violate the rights of others, including the First Amendment right to free speech. This legal tenet has been implicated by a number of cases involving laws designed to combat what is known as cyberbullying.

Gone are the days when bullying was monitored through observation of children’s face-to-face interactions. Now, kids can also be bullied through social media and other digital technology. The phenomenon is commonly referred to as “cyberbullying.” Cyberbullying is much more dangerous than traditional bullying in its effect on the bullied child because of its reach—it’s capable of reaching the bullied and a near-limitless number of others in amazing speed—and because of its permanence.

Most schools have crafted rules to combat cyberbullying. In addition, a number of states and local authorities, including Albany County, New York, have enacted cyberbullying laws after Megan Meier’s death in 2006.  Megan Meier, from Dardenne Prairie, Missouri committed suicide after receiving cruel messages on Myspace from a man—a neighbor purporting to a boy—such as, “the world would be better off without you.”

Last year, the Albany County law was challenged by Marquan W. Mackey-Meggs in the New York Court of Appeals. Mr. Mackey-Meggs, a student from Cohoes High School in Cohoes, NY, was arrested after creating a Facebook page which he called “Cohoes Flame” and on which he posted photos of classmates with offensive captions.

Mr. Mackey-Meggs’ attorneys challenged the Albany County law as a violation of Mr. Mackey-Megg’s freedom of expression.  Ultimately, New York’s highest court ruled (in November 2014) that the Albany law was, in fact, overbroad and an unconstitutional restriction of the freedom of speech. (For more detailed information about this important decision, please read the articles in Jurist and in the ABA Journal.)

While some may view the court’s ruling as a step backward in the fight against cyberbullying, I disagree. I believe this ruling brings good news in that court acknowledged that it is a necessity to protect school children from cyberbullying without criminalization, and it also alerts states and localities to the fact that a cyberbullying law must be narrowly and appropriately drawn.

In the years to come, the United States Supreme Court will certainly be asked to grapple with freedom of speech issues arising via the use of social media. In fact, last December, in the case of Elonis v. United States, the Court heard arguments on the issue of whether a communication on Facebook can be classified as an illegal threat. The decision is pending.

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