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Should “Dangerous” Lying on Twitter Be Prosecuted?

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by Publius
Posted November 05, 2012, 11:14 AM

In the wake of hurrican Sandy, Joe Palazzolo writes in the Wall Street Journal:

During Superstorm Sandy, Twitter user @ComfortablySmug spread misinformation by tweeting that, among other things, the New York Stock Exchange "is flooded under more than 3 feet of water" and New York Gov. Andrew Cuomo "is trapped in Manhattan. Has been taken to a secure shelter."

Tweets have had a positive effect on disseminating news. But could purposely tweeting fake news have legal consequences? Legal experts say it is possible, though there are several legal hurdles.

"This is the modern version of someone falsely screaming 'Fire!' in a crowded theater," said Stuart Benjamin, a law professor at Duke University, referring to a famous illustration offered by Justice Oliver Wendell Holmes Jr. in a 1919 Supreme Court ruling. Such statements are imminently dangerous and not protected by the First Amendment, the court held.

New York, like many states, prohibits people from falsely reporting an event in certain circumstances. While such laws most often have been used to prosecute conduct such as filing a false police report, they could also be applied to false tweets, some First Amendment experts said.

New York's law makes it a crime to initiate or circulate "a false report or warning of [a]…catastrophe or emergency under circumstances in which it is not unlikely that public alarm or inconvenience will result." Violations are punishable by up to a year in prison.

After @ComfortablySmug was outed by the BuzzFeed news site as Shashank Tripathi, the campaign manager for a congressional candidate, New York City Council Member Peter F. Vallone Jr. asked the Manhattan district attorney to file charges. Mr. Tripathi, 29 years old, has since resigned from Republican Christopher Wight's campaign and tweeted a "humble and unconditional" apology for his "irresponsible and inaccurate" tweets. He didn't reply to requests for comment. His tweet about the stock exchange was retweeted by journalists, including at The Wall Street Journal.

Mr. Tripathi had been with the campaign seven months and "I had no indication that he was capable of the type of behavior," Mr. Wight, a Republican, said in a prepared statement.

The district attorney's office didn't respond to requests for comment. Charges didn't appear to have been filed.

For the New York statute to be applied, it would have to stand up against a landmark U.S. Supreme Court decision this year that struck down a law making it a crime to lie about being a war hero. The decision in U.S. v. Alvarez said lying, in many cases, is protected speech, no matter how repulsive it may seem. Some falsehoods clearly are punishable, such as perjury, lies to the government about official matters or pretending to speak on behalf of the government.

Eugene Volokh, a law professor at the University of California, Los Angeles, said he believed the New York law could survive the Supreme Court ruling in Alvarez, though he said some of the law's language could be too imprecise to survive a challenge. Justice Stephen Breyer in his concurrence in Alvarez gave a nod to laws that prohibit lies about "the commission of crimes or catastrophes," Prof. Volokh said.

"I don't think there's an Alvarez problem there, but there is potentially a vagueness problem," Prof. Volokh said, pointing to phrases in the New York law such as "not unlikely."

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