A New York teenager is challenging Albany County’s new cyberbullying law on free speech grounds, the Wall Street Journal reports.
However, many legal experts have questioned the constitutionality of the laws, especially as they exist in many places with somewhat vague terminology, including “annoy,” “taunt,” and “abuse,” and with a focus on the “intent” of the poster.
The cyberbullying ordinance in Albany County makes it a crime to communicate “private, personal, false, or sexual information,” intended to “harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.” That could be seen as all-encompassing, particularly about “private” content. And what is “false” is sometimes a matter of opinion, not a fact that can be judged in a court of law.
The specific case involves a 15-year-old male student who posted pictures and comments about other students at Cohoes High School, such as one girl “kisses like a dog” or another “has cottage cheese legs.” Other posts listed sex partners and sex acts. He says the comments were intended to be funny, but the objects of those comments took offense, as did law enforcement officials.
The boy pleaded guilty to one count of cyberbullying on the condition that he could challenge the law’s constitutionality in higher state courts. He was sentenced to three years of probation, the Journal reported.
Is this free speech or do we protect children?
Most laws in place make a distinction between cyberbullying directed at minors and comments directed at adults, or at least they try to make that distinction.
Laws in the US that restrict speech, such as hate speech or speech that incites violence, do exist. The ultimate question will be, Does cyberbullying lead to bad enough consequences that the needs of our government to protect the well-being of children outweigh the free speech rights of a few people who would engage in cyberbullying? A court can decide that, but I’m not sure if a court can determine whether it’s “false” to say a teenage girl kisses like a dog or whether the intent of the poster was to annoy, taunt, or harass her.
In some ways, though, we’re forcing a duty on our courts that could often be handled in schools: there’s a big difference between showing a 15-year-old boy that he did something wrong and hauling him into criminal court and threatening imprisonment or attaching a criminal history to his name on the Internet in perpetuity.
At this time, no federal court has ruled on a cyberbullying-free speech case, but that’s where these laws will eventually end up, as they involve the First Amendment in a major way and impose a new restriction on the type of speech people can use in public places.