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NYS HIGHEST COURT FIRST TO HEAR CONSTITUTIONAL CHALLENGE OF CYBER-BULLYING LAW IN MACKEY-MEGGS “COHOES FLAME” CASE

June 5, 2014

Today New York will be the first state to adjudicate in its highest court the constitutionality of a cyber-bullying law  in the case of People v Marquan M.  To demonstrate its commitment to protecting people from internet violence, humiliation, and online terrorism, The State of New York Court of Appeals must affirm the rulings of the lower courts.  Such a ruling is a no-brainer.  The law IS constitutional.  Today’s bench must also correct the lower court’s ruling that the cyber bullying law should only apply to the bullying of minors.

In 2010 then 15-year-old Marquan Mackey-Meggs, an Albany resident as much a phenom of cruelness as alliteration, anonymously created “Cohoes Flame” and “Cohoes Tramp” Facebook pages where he viciously demeaned and sexually humiliated students at his school, publishing photos of them alongside (t)ruthless sex rumors.  In 2011 he was charged with ten counts of cyberbullying and ten counts of harassment.

The local law defines “cyber-bullying” 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.”

Marquan lost his first challenge, claiming in Cohoes City Court that the cyber-bullying law is not constitutional because it criminalizes protected speech, is vague, and overly broad.  Losing his motion to dismiss, he pled guilty to one count of cyber-bullying, admitting to publishing false information to inflict emotional harm with leave to appeal.  He was sentenced as a youthful defender to three years of probation.  Albany County Court affirmed. . . mostly.

Albany Court saw no merit in the vagueness claim and pooh poohed the free speech claim, distinguishing conduct from speech:

” ‘The law’s proscription is limited to conduct — using mechanical or electronic forms of communication — that lacks a legitimate purpose…. [T]he law does not circumscribe pure speech directed at an individual but it is directed at words communicated mechanically or in electronic form coupled with intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person, about which the County has a legitimate state interest to prohibit…. In any event, to the extent that pure speech is implicated, constitutional protections are not absolute — especially where, as here, substantial privacy interests are being invaded in an intolerable manner….’ ”

As for the overbreadth claim, the Albany County Court said that to be consistent with the legislative intent, the law should be narrowed to the bullying of only minors.  The court said this narrowing need not render the law unconsistutional for overbreadth since the issue could be severed and enforcement limited to bullying of minors.  Mackey-Meggs is making another stab at appeal.

Dimwittedly, Mr. Mackey-Meggs’ lawyers claim that it is THEIR client whose privacy is being assaulted.  “Now, Google his name in perpetuity, he’s going to have this criminal record,” said Mr. deFrancqueville.  Reminder: your client is the perpetrator of privacy invasion NOT the victim.

Today the State of New York Court of Appeals must overturn the narrowing by the Albany County Court and otherwise affirm the rulings of the lower courts.  Any other holding would be the judicial equivalent to adding kerosene to the “Cohoes Flame” and other online humiliation bonfires that rage.