Albany County cyberbullying law has its day in court

NYCLU challenges statute’s constitutionality; county attorney argues for revision

Albany County legislators may be forced to draft a new cyberbullying law if the state’s top court rules in favor of advocates arguing it violates the First Amendment.

The state Court of Appeals on Thursday, June 5, heard arguments on whether the county’s cyberbullying law violates constitutionally protected speech. The legal challenge stems from the June 2011 arrest of a 15-year-old Cohoes High School student for cyberbullying. The teenage boy pleaded guilty to one count of cyberbullying and was sentenced as a youthful offender to probation for three years.

The teenager created the “Cohoes Flame” Facebook page, where he posted pictures of classmates and made mostly derogatory and sexually related comments.

“Albany County and any government has the right to protect minors from the infliction of emotional harm, and that’s a compelling interest,” said Albany County attorney Thomas Marcelle. “This case is the classic example of cyberbullying.”

Corey Stoughton, an attorney for the New York Civil Liberties Union Foundation representing the teenager, argued the law could not be saved without changing its scope, which isn’t the role of the court.

“Cyberbullying is a serious problem the government can and should address, but this is the wrong way to do it,” Stoughton said.

Spotlight News is not printing the name of the former Cohoes student because it is the paper’s policy to not release the name of anyone under the age of 18 charged, or convicted, of a misdemeanor or lesser offense.

Stoughton said there is “a constitutional right to say nasty things” in public about “purely private” people.

Court of Appeals Associate Judge Robert Smith said he was “having an intuitive problem with the idea there is a constitutional right for a 15-year-old boy to treat his classmates like this.”

Chief Judge Jonathan Lippman questioned Marcelle why the court should modify the law in an attempt to save it.

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