Children have as much of a right to be free from emotional harm as they do from physical harm. Bullies have moved from the playground to cyberspace. They have moved from intimidating their victims with physical violence to intimidating them with emotional violence.
The cyberbullying problem is exploding. According to a recent Justice Department study, a third of teens are subjected to cyberbullying. Studies have shown that those who are cyberbullied have a dramatic increase in suicidal thoughts and actions. The children who are the targets of bullies are most often the vulnerable especially lesbian, gay, bisexual and transgender students.
Albany County recognized the problem and took action. Albany County has outlawed cyberbullying by enacting law that prohibits a bully from using the Internet to spread lies and expose private photos or intimate details of a teen's sexual life for the sole purpose of inflicting emotional harm.
After the law was enacted, a miscreant teen created a webpage called the Cohoes Flame. He used the anonymity of the Internet to torment a number of his classmates by engaging in homophobic, misogynistic and racial attacks, as well as lies and fabricated sexual encounters — the vileness of the attacks prevent the verbatim reproduction of the actual slurs. Ultimately, the teen was arrested, charged, prosecuted and convicted under the county's Cyberbullying Law.
The state's highest court is now being asked to determine whether criminalizing cyberbullying violates the First Amendment. The New York State Court of Appeals will be the first court in the nation to decide this question. Potentially at stake are the cyberbullying laws of 19 states and four other New York counties.
Indeed, it is a tricky situation when punishment involves speech. However, the Cyberbullying Law is located well within the zone of speech that the First Amendment leaves unprotected. Think of it in another context, the government could not ban hateful speech in the abstract. However, the government can stop people from creating a hostile work environment. If a person utters misogynistic speech with the intent to create a hostile workplace for a female worker, then the government can impose liability. In New York state, our hate crimes law singles out hate speech — calling a gay man a slur when beating him — as proof enough to increase a felony penalty when being charged.
Critics of the law have argued that schools, and not criminal courts, are the better place to stop cyberbullying. Education is an important component to deal with the problem, it is not the exclusive one. A cyberbully may need more than a teacher's lecture. An emotionally abused victim or a parent of a child who has committed suicide may find small comfort in the existence of an educational program.
Free speech is important value, but so too is protecting our children from intimidation.
Albany County simply is punishing those whose actions are aimed to inflict emotional injury on a minor by false and abusive speech.
The state Court of Appeals should take the opportunity to protect children who are bullied through the Internet and uphold the county's Cyberbullying Law.