Can False Hurricane Tweets Spur Prosecution? Legal Experts See Some First Amendment Hurdles
New York prosecutors aren’t saying whether they will file charges against a Twitter user who tweeted false news of Hurricane Sandy, including an assertion that the New York Stock Exchange was under three feet of water.
The person sending the dire news was outed as Shashank Tripathi, the now former campaign manager for a congressional candidate. The incident has the Wall Street Journal (sub. req.) wondering: Can spreading false information on Twitter result in a prison sentence?
A New York law makes it a crime, with a penalty of up to a year in jail, to falsely report or warn of a “catastrophe or emergency under circumstances in which it is not unlikely that public alarm or inconvenience will result.” The issue is whether the law would withstand First Amendment scrutiny under the U.S. Supreme Court June decision in United States v. Alvarez, which struck down a federal law that makes it a crime to lie about receiving military honors or decorations.
Duke University law professor Stuart Benjamin told the newspaper that a challenge may depend on whether sending disaster tweets had the same impact as sending a false report to the government, which would more clearly withstand a First Amendment challenge. If not, a strong argument could be made that the New York law is unconstitutionally broad.
University of California at Los Angeles law professor Eugene Volokh told the newspaper he doesn’t think there is “an Alvarez problem” with the New York law, given the concurring opinion in the case by Justice Stephen G. Breyer. The justice agreed with the decision to strike down the law barring lies about military honors, while distinguishing laws that prevent lies when a tangible harm is likely to result. As an example, he cited laws that bar lies about “the commission of crimes or catastrophes.” (Volokh wrote about the case in June at the Volokh Conspiracy.)
But there could be a vagueness problem, Volokh told the Wall Street Journal, because of some phrases in the New York law such as “not unlikely.”
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