In 2010, Marquan Mackey-Meggs, a 15-year-old student at Cohoes High School in Albany County, started a Facebook group called “Cohoes Flame.”
On the page, according to court documents, he posted “photographs of high-school classmates and other adolescents, with detailed descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information.”
He was arrested after police tracked him down through his computer’s IP address. Albany County prosecutors charged him with cyberbullying, a misdemeanor under local law. It was a new law and he was the first person accused of breaking it.
He argued that the law violated his First Amendment right to free speech, but a local judge rejected that motion. So Mackey-Meggs pleaded guilty on the condition that he would be able to appeal the law’s constitutionality.
The challenge reached New York’s highest court, and on Tuesday the Court of Appeals sided with Mackey-Meggs, striking down the county’s law for being “overbroad and facially invalid under the Free Speech Clause of the First Amendment.” But that didn’t mean the court defended his actions.
Albany County had passed the law making cyber bullying a criminal offense just one month before Mackey-Meggs created the Facebook page (and two years before the state legislature addressed the issue). The county defined the 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.
This law, the court ruled in a five-to-two decision, “includes a wide array of protected expression, and is unlawfully vague since it does not give fair notice to the public of the proscribed conduct.”
The majority decision, written by Judge Victoria Graffeo, was sure to explain that this was not a ruling against cyber bulling laws. “The government unquestionably has a compelling interest in protecting children from harmful publications or materials,” Graffeo said, and the county “was motivated by the laudable public purpose of shielding children from cyberbullying.”
The First Amendment “permits the prohibition of cyberbullying directed at children.” But, she noted, in this case “the local law here was not drafted in that manner.”
The problem was that Albany’s law potentially restricted more than just bullying. Read most broadly, the court noted, the language of the statute criminalizes “any act of communicating . . . by mechanical or electronic means . . . with no legitimate . . . personal . . . purpose, with the intent to harass [or] annoy. . . another person.”
One interpretation of the law, the court said, would prohibit, say, “an e-mail disclosing private information about a corporation or a telephone conversation meant to annoy an adult.”
So even though the First Amendment “may not give defendant the right to engage in these activities,” the law under which Mackey-Meggs was convicted was invalid. The court had taken his side in legal formality but not in spirit.
Judge Robert Smith, who authored the dissent, argued that there was enough valid substance in the law to uphold it by slicing off the problem spots — namely, the vague words like “embarrassing” and “hate mail.” This could all be resolved, Smith argued, “simply by crossing them out.”
The majority, he said, got too caught up in the technicalities of the language.
“Once these deletions are made, I see nothing in the law that renders it unconstitutional,” Smith wrote. “The crux of the case, in my view, is whether Albany County constitutionally may do what it is trying to do.”
Next: the text of the decision.