A state court in New York recently struck down that state’s cyberbullying law as violating the First Amendment.
The case arose when a 15-year-old Albany County high school student, Marquan Mackey-Meggs, created an anonymous Facebook page called “Cohoes Flame,” from which he created posts about other teens, including pictures. The posts were graphic and often included sexual content. He was charged with 10 counts of harassment along with 10 counts of cyberbullying, which was a misdemeanor crime in the county.
It is no secret that bullying has recently gotten a lot more attention across America. It is a persistent problem, and as fast as schools deal with the problem, kids find new ways to get around the rules. But many of the laws criminalizing bullying raise serious constitutional concerns.
The New York cyberbullying law prohibits
any act of communicating or causing a communication to be sent by mechanical or electronic means…disseminating embarrassing or sexually explicit photographs…private, personal, false, or sexual information…with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, humiliate or otherwise inflict significant emotional harm on another person.
It should be evident how broad and vague this law is. What is “embarrassing”? What is a “legitimate” purpose? Motivated by similar concerns, the New York Court of Appeals (the highest court in New York) struck down the law, 5–2, as violative of the First Amendment. The text of the law, the court held, creates “a criminal prohibition of alarming breadth…that prohibits types of protected speech far beyond the cyberbullying of children.”
It is important to note that the court of appeals did not condone Mackey-Meggs’s behavior: “[The] defendant’s Facebook communications were repulsive and harmful to the subjects of his rants.”
However, in trying to go after this one bad actor, the state of New York had crafted a law that was so sweeping as to criminalize much First Amendment–protected activity of New Yorkers of all ages—adults and children, students and non-students.
Perhaps this overbreadth was accidental. But some suggest a more nefarious purpose: The Competitive Enterprise Institute’s Hans Bader wrote recently that “bullying is increasingly being used as an excuse for censorship of speech protected by the First Amendment.” Whatever the motivation of the New York state legislature, the question is whether the government can craft a law that catches all the “bad” speech while letting all the “good” speech through. And it’s not clear that the government can do this.
Certainly bullying ought to be prohibited by schools when it falls outside First Amendment protection—that is, when it rises to the level of stalking, fighting words, or threats. But beyond that, protecting students from bullying is profoundly paternalistic and treats students—even adult students—as incapable of exercising free speech rights or hearing the constitutionally protected speech of others.
If we don’t like First Amendment–protected speech—such as rude speech or politically incorrect speech—the solution is ultimately a cultural one: Parents need to teach their children about bullying and warn them not to do it.
Blake Willis is currently a member of the Young Leaders Program at The Heritage Foundation. For more information on interning at Heritage, pleaseclick here.