County lawmakers have drafted a narrower version of the cyberbullying law struck down by the state’s highest court this month.
But the new version has yet to be vetted by County Attorney Thomas Marcelle, whose office was charged with defending the flawed 2010 law that the Court of Appeals ruled violated the First Amendment protection of free speech by reaching “far beyond the cyberbullying of children.”
The court’s chief gripes with the measure, which is intended to protect children from online bullying, were that it was written in a way that applied to both children and adults and so broadly defined the crime that it covered “every conceivable form of electronic communication” — not just those online.
The new version, introduced Monday night — two weeks after the court’s July 1 decision — seeks to address those problems, said Guilderland Democrat Bryan Clenahan, the primary sponsor.
The text now explicitly applies only to bullying targeted at minors.
It defines the crime as “any act of communicating or causing a communication to be sent by electronic means, including posting statements on the Internet or through a computer or email network, with the intent to inflict emotional harm on a minor; (1) sexually explicit photographs; (2) private or personal sexual information; or (3) false sexual information with no legitimate public, personal or private purpose.”
“That’s basically what the Court of Appeals said had to happen,” said Clenahan, who is an attorney and works in the state Legislature. “If I read the decision right, this is pretty much what they were telling us would be acceptable.”
The court, however, also took issue with the law’s characterization of speech that has “no legitimate … purpose,” which is still included in the revision circulated Monday.
“The First Amendment forbids the government from deciding whether protected speech qualifies as ‘legitimate,'” the majority in the 5-2 decision wrote.
In the wake of the court’s decision, County Executive Dan McCoy pledged to work with lawmakers to draft language that would survive another potential court challenge. McCoy supported the initial law as a member of the legislature.
Clenahan said that he anticipated the county attorney’s office would be brought into the discussion next month when the bill is vetted by the legislature’s Law Committee.
Marcelle said he has language of his own that he plans to offer lawmakers to consider.
The NYCLU brought the lawsuit challenging the law’s constitutionality on behalf of a Cohoes High School student who pleaded guilty to a violation of it after his 2011 arrest for creating an anonymous Facebook page featuring “vulgar and offensive” comments about other students.
The court’s decision overturned his conviction and forced prosecutors to drop cases against four Guilderland High School students charged in a separate incident involving an online rap video insulting students.
Trimble said the county can likely craft acceptable language if it studies the definition of bullying contained in the 2010 state law aimed at reining in bullying on school grounds.
“It’s not that it wouldn’t be fixable at all, but if they haven’t figured out their definition of cyberbullying, then I think they’re going to have continued problems,” Trimble said. “This is not an easy thing to do, and they really should be very careful. They do not want to go to court again.”
Clenahan said the reasons lawmakers passed the law in the first place are no less pressing than they were four years ago.
“There’s no question that something is necessary, and we need to do something on this,” he said.