SPLC joins coalition urging New York to overturn criminal penalties for online bullying


Contact: Frank D. LoMonte, executive director(703) 807-1904 / director@splc.org

A coalition of nonprofit advocates supporting a positive school learning climate joined Monday in urging a New York court to declare unconstitutional a statute that makes “cyberbullying” a crime punishable by a year in jail.

In a brief filed Monday with the New York Court of Appeals, the Student Press Law Center and four other advocacy organizations argue that, in the absence of proof that educational intervention will not work just as effectively, states and counties may not criminalize “taunting” and other acts of online bullying.

“Online cruelty can only be addressed by intensive educational programming, starting with the earliest grades, in which students learn empathy, dispute resolution skills, and the ethics of responsible publishing,” said attorney Frank D. LoMonte, executive director of the SPLC. “Criminalizing speech that listeners find ‘annoying’ runs the real risk of subjecting student bloggers and commentators to intimidating criminal investigations just for upsetting their readers. We’ve already seen the disastrous consequences when police are unleashed in schools with ‘zero tolerance’ authority to arrest people for harmless, misunderstood jokes. Expanding that authority to the Internet will ruin many more young lives than it will benefit.”

Signing the brief along with the SPLC were the National School Climate Center, Advocates for Children, Empire State Pride Agenda, and the Robert F. Kennedy Center for Justice & Human Rights. The brief was prepared by attorneys Dennis P. Orr and Cindy P. Abramson with the New York office of Morrison & Forester LLP, one of the world’s largest law firms with more than 1,000 attorneys worldwide.

The underlying case involves a 15-year-old Albany County high school student, Marquan Mackey-Meggs, who admitted setting up a Facebook group in which he made crude, disparaging sexual remarks about classmates. Charged with a criminal violation, Mackey-Meggs agreed to plead guilty and accept probation rather than face jail time, with the understanding that he could still challenge the statute as unconstitutional. Monday’s friend-of-the-court brief supports that constitutional challenge.

Monday’s brief argues that the 2012 Albany County cyberbullying statute under which Mackey-Meggs was charged violates the First Amendment because it does not represent the least speech-restrictive method of responding to the government’s concern with online cruelty. When a government agency imposes penalties on the content of speech, the First Amendment requires that the restrictions be narrowly tailored and punish no more speech than necessary to achieve a compelling government objective.

Citing research that demonstrates a high rate of out-of-school discipline actually creates a less safe and harmonious school climate, the brief argues: “By expanding zero-tolerance policies, which are proven not to work, to the next level of criminalizing students, not only is nothing being done to effectively deal with the problem, but the school environment is made worse for the remaining students.”

The brief points out that criminalization can deter students and teachers from reporting harassment, since the consequences are so drastic: “When the severity of consequences is greatly disproportional to the severity of an incident, it can discourage reporting by students and encourage inaction and dismissal by teachers and school officials, who lack ability to address cyber-bullying outside the bounds of the law.”

LoMonte noted that the statute essentially makes it a crime to defame someone – behavior that normally is dealt with through the civil justice system – but without any of the constitutional safeguards that would accompany a civil defamation claim. “In New York, it is literally easier to arrest and convict a teenager for defamation and send him to jail than it is to win a money judgment against him in a lawsuit,” LoMonte said. “That can’t possibly be right, and if New York is intent on jailing kids for making unkind remarks about each other on Facebook, the state first must satisfy the heavy burden of showing that no less-drastic response would be effective.”

The brief notes that many promising educational programs, including those offered through the National School Climate Center, can be more effective than criminal prosecution without removing students from the classroom for extended periods, which runs contrary to New York’s publicly stated goal of improving student retention. The impact of criminal cyberbullying statutes is likely to fall disproportionately on students of color like Mackey-Meggs, the brief argues, further exacerbating the “school-to-prison pipeline” that derails thousands of students’ educational careers each year.

Since 1974, the Student Press Law Center has been devoted to educating high school and college journalists about their rights to gather information and share ideas. The SPLC advocates for a comprehensive national curriculum to teach all young people to consume and create content ethically and responsibly. The Center provides free information and educational materials for student journalists and their teachers on a wide variety of legal topics on its website at www.splc.org.