SAN DIEGO, June 7, 2014 —In 2010, some cruel remarks on Facebook led to the arrest of Marquan Mackey-Meggs who attended Cohoes High School in New York state’s Albany County. His arrest resulted from a new cyber-bullying law. Now, in the year 2014, civil libertarians are concerned that application of this law could eventually lead to other kinds of arrests that go far beyond bullying.
Free speech, as guaranteed in the First Amendment, weighs in the balance.
Back in December 2010, Mackey-Meggs put together a Facebook page called the “Cohoes Flame.” Writing anonymously, he mentioned certain students by name and described their sexual exploits including insinuations that some were engaged in homosexual activity. In one case, he talked about a female student having 14 sexual partners. He even went on and mentioned the name of each partner. The students were between the ages of 13 and 16.
Most of his comments were so lewd they could not even be printed in newspapers, but one remark that could be printed described a female student who “will make out with any boy in history if drunk.”
Mackey-Meggs was arrested and charged with eight counts of Internet bullying. He originally attempted to have his case dismissed on grounds of First Amendment protection, but the law was upheld, first by Cohoes City Court, and later by Albany County Judge Stephen Herrick. Herrick, however, added a new wrinkle by insisting the law should not apply to adult victims, but minors only.
This week, Mackey-Meggs’ case went before the New York’s Court of Appeals.
Corey Stoughton of the New York Civil Liberties Union Foundation is representing Mackey-Meggs. She has asked the court to overturn his conviction, claiming it violates not only the First Amendment but also the 14th Amendment and its guarantee of equal protection under the law.
“Because Albany County has made no effort to demonstrate that this broad criminalization of speech is necessary to protect minors from harm, the court should strike the cyber-bullying law down on its face,” she said.
Albany County’s law includes in its examples of cyber-bullying,”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.”
Stoughton is concerned about the wide range of speech that can now be interpreted as having criminal intent:
“These terms encompass countless emails, text messages, and postings on social networking and other websites, putting thousands of people in Albany County in jeopardy of criminal prosecution for expressing anger, criticism, intimacy, parody, gossip, and opinion.”
Defending the law, Albany County Attorney Thomas Marcelle attempted to assure the public that this new law does not endanger free speech.
“Freedom of speech is not the issue…It was his desire to inflict harm on his victims that got him convicted of a crime, not his desire to enter into the marketplace of ideas….The Cyber-Bullying Law is precisely targeted at speech in the narrow circumstances where the communication has no purpose other than to inflict emotional harm upon a child — that is, in situations where the speaker has no intent to communicate ideas and is without the protections offered by the First Amendment.”
In point of fact, free speech is the issue and that does not suddenly become untrue simply because an attorney says so.
Our wise forefathers understood that speech would sometimes be offensive. Otherwise, there would have been no need to protect it. What would have been the purpose of a First Amendment if every spoken word was going to sound agreeable and kind?
Human beings are easily affected by bad sounding practices or emotions and it is easy for attorneys to point out such unpleasantness to inspire new laws.
But when a law is stated broadly, words such as “bullying” or “hate” turn the law into a Trojan Horse. Once inside those walls that once protected our freedom, the true implications of a law can end up forbidding all kinds of speech including sincere words from people who did not intend to either bully or hate.
Nobody likes a bully. But who is our society going to trust to determine a person’s motive while writing something on the Internet or anywhere else? Have our litigious citizens and judges suddenly become mind readers?
As for hate, that too is a bad sounding word; that too can be a difficult motive to decipher.
On the other hand, not all hate is wrong. Aren’t we supposed to hate things such as racism and injustice?
What happens when people disagree as to what constitutes racism or injustice?
Some believe we had just cause to send troops to Iraq and Afghanistan. Others compare us to the Nazis for waging such wars.
Some believe it is impossible to criticize President Obama without a racist motive. Others believe the man is responsible for covering up a plethora of lies from Benghazi, to the IRS misuses. It is the scandals, not the skin color which concerns them.
Let’s face facts: Any honest gage regarding our country’s communication skills between opposing camps, shows that we are a society that needs to be very careful where speech regulation is concerned.
We are told that conservative talk radio needs to be balanced by an equal amount of liberal programing. But liberal teaching at the university level should feel no similar obligation to offer an equal amount of conservative teaching.
And of course, teaching itself gets confused by its varied labels:
People are called hateful and intolerant for expressing disagreement with a same-sex lifestyle. They are not intolerant if they want to speak against Christianity.
Those who object to abortion do not believe in choice. Those who want to tell you what to eat, drink, drive, or listen to on the radio do believe in choice.
People are scientific if they question the existence of God. They are unscientific if they question global warming.
People who speak out against to the Taliban’s physical mutilation of educated woman are “Islamophobes.” Meanwhile, a real war against women can be found with any conservative American who does not believe our tax dollars should have to pay for birth control.
Republicans are told to “tone down the rhetoric” when they suggest that the Affordable Health Care Act will severely damage our country, but when Florida Congressman, Alan Grayson claims that the Republican plan for health care is to either not get sick or to die, he, supposedly, is not guilty of inflammatory language.
Different perceptions of right and wrong have never been stronger in America. This is no time to start adding subtle nuances to speech freedom.
Yes, it would be better to have constructive dialogues rather than heated expression and name calling. But since designations such as “hate speech” and motives such as “bulling” seem to be in the eye of the beholder, the safest road is to simply protect all expression.
If that idea sounds familiar, take another look at the First Amendment. Our ancestors already figured this out long ago.
This is Bob Siegel, making the obvious, obvious.
Bob Siegel is a radio talk show host and columnist. Information about his radio show can be found at bobsiegel.net.
Timesunion.com contributed to the hard news portions of this article.