NY Cyber-Bullying Law may end up bullying free speech

In 2010,  some cruel remarks on Facebook led to the arrest of Marquan Mackey-Meggs who attended Cohoes High School in New York state’s Albany County. His arrest resulted from a new cyber-bullying law. Now, in the year 2014, civil libertarians are concerned that application of this  law could eventually lead to other kinds of arrests that go far beyond bullying.

Back in  December 2010, Mackey-Meggs put together a Facebook page called the “Cohoes Flame.” Writing anonymously, he mentioned certain students by name and described their sexual exploits including insinuations that some were engaged in homosexual activity. In one case, he talked about a female student having 14 sexual partners. He even went on and mentioned the name of each partner. The students were between the ages of 13 and 16.

Mackey-Meggs was arrested and charged with eight counts of Internet bullying. He originally attempted to have his case dismissed on grounds of First Amendment protection, but  the law was upheld, first by Cohoes City Court, and later by Albany County Judge Stephen Herrick. Herrick, however, added a new wrinkle by insisting the law should not apply to adult victims, but minors only.

This week, Mackey-Meggs’ case went before the New York’s Court of Appeals.

Corey Stoughton of the New York Civil Liberties Union Foundation is representing Mackey-Meggs. She has asked the court to overturn his conviction, claiming it violates not only the First Amendment but also the 14th Amendment and its guarantee of equal protection under the law.

“Because Albany County has made no effort to demonstrate that this broad criminalization of speech is necessary to protect minors from harm, the court should strike the cyber-bullying law down on its face,” she said.

Albany County’s law includes in its examples of cyber-bullying,”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 is concerned about the wide range of speech that can now be interpreted as having criminal intent:

“These terms encompass countless emails, text messages, and postings on social networking and other websites, putting thousands of people in Albany County in jeopardy of criminal prosecution for expressing anger, criticism, intimacy, parody, gossip, and opinion.”

Defending the law, Albany County Attorney Thomas Marcelle attempted to assure the public that this new law does not endanger free speech.

“Freedom of speech is not the issue…It was his desire to inflict harm on his victims that got him convicted of a crime, not his desire to enter into the marketplace of ideas….The Cyber-Bullying Law is precisely targeted at speech in the narrow circumstances where the communication has no purpose other than to inflict emotional harm upon a child — that is, in situations where the speaker has no intent to communicate ideas and is without the protections offered by the First Amendment.”

In point of fact, free speech is the issue and that does not suddenly become untrue simply because an attorney says so.

Our wise forefathers understood that speech would sometimes be offensive. Otherwise, there would have been no need to protect it. What would have been the purpose of a First Amendment if every spoken word was going to sound agreeable and kind?

Human beings are easily affected by bad sounding practices or emotions and it is easy for attorneys to point out such unpleasantness to inspire new laws.

But when a law is stated broadly, words such as “bullying” or “hate” turn the law into a Trojan Horse. Once inside those walls that once protected our freedom, the true implications of a law can end up forbidding all kinds of speech including sincere words from people who did not intend to either bully or hate.

As for hate, that too is a bad sounding word; that too can be a difficult motive to decipher.  On the other hand, not all hate is wrong. Aren’t we supposed to hate things such as racism and injustice?

Yes, it would be better to have constructive dialogues rather than heated expression and name calling. But since designations such as “hate speech” and motives such as “bulling” seem to be in the eye of the beholder, the safest road is to simply protect all expression.

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