To Honor First Amendment Rights, Cleveland and Other Cities Should Focus on Flash Mob Violence, Not Instant Messaging

Last week, the Cleveland, Ohio, City Council introduced a new set of proposed ordinances designed to crack down on violent flash mobs; and to punish persons who use social networking, Twitter, and instant messaging to seek to incite mob violence.

As readers may know, flash mobs are gatherings of people that pop up “in a flash” as people learn of them through word of mouth, Internet communications, and cell phone calls.  Often, such mobs perform music; engage in performance art; or simply do something  silly.  But at times, flash mobs have turned dangerous or disruptive.

For instance, this past summer, in the U.K., flash mobs composed of angry youths damaged property, ransacked stores, and engaged in other criminal activity.  After that, British Prime Minister David Cameron told Parliament that he was looking into shutting down the social networking sites that are used to gather rioters when users “are plotting violence, disorder and criminality.”  Moreover, San Francisco officials shut down the  local cellular network for three hours at certain Bay Area Rapid Transit (BART) stations when they suspected that a scheduled protest would disrupt commutes at the stations.  And in Cleveland itself, this August, local rapper “Machine Gun” Kelly used Twitter to create a flash mob at SouthPark Mall in Strongsville that led to Kelly’s being cited for disturbing the peace.

In this column, I will examine the current Cleveland proposal and contend that it is unwise, impractical, and possibly unconstitutional.  More generally, I will argue that—rather than focusing on specific technologies, which constantly change—cities should look to their existing criminal laws to punish mob activity that involves violence or other illegal activity.

How Cleveland Has Sought to Deal With Disruptive or Violent Flash Mobs

So far, two versions of Cleveland’s anti-flash-mob measures have been proposed.  The first was introduced after teens who connected using Twitter disrupted a local festival. That initial measure sought to make it a crime to use social media (such as Facebook or Twitter) or cellphones to plan a riot or other disturbance.  Violations—which would have followed disorderly conduct and other charges—would have been misdemeanors, and a first offense would have been punished by a $100 fine.

However, the American Civil Liberties Union of Ohio (“Ohio ACLU”) opined that the measure was unconstitutional—in part because it appeared vague and unenforceable.  The Ohio ACLU also expressed concern that the proposed ordinances would implicate innocent people who attend an event that—surprisingly, and through no fault of their own—turns violent. Meanwhile, other commentators said the ordinances were unnecessary because Cleveland has other laws on the books to punish violent and rowdy behavior.

Accordingly, in August,  Cleveland Mayor Frank Jackson vetoed the ordinances—in the first, and so far only, veto he has used since assuming his post in 2006.  Then, earlier this month, the Cleveland City Council tried again, with a new version of the measure that would specifically prohibit the use of computers and other electronic devices in an effort to incite a riot.  The City Council proposed adding computers, cellphones, and any “electronic media device” as potential criminal tools under section 625.08 of the Codified Ordinances of Cleveland, and deem their use a first-degree misdemeanor in relation to criminal incitement.  Finally, a third proposal would forbid rioting at a “community event, place or business, or any city of Cleveland property, facility or recreation area.”  The maximum punishment for a violation would be six months in jail and a $1,000 fine.

Jeff Johnson, a Councilman, and one of the measure’s sponsors,  argues that the measure “does not find fault in the use of social media to express an opinion, but rather considers the organizer’s words as proof of criminal intent.  We are focusing on individuals who use modern technology to cause criminal rioting.”  Thus, these latest proposals include flash-mob disturbances under the general prohibition against rioting, and include cell phones and computers on a list of criminal tools.

Cleveland and Other Cities Should Invoke Existing Laws, Not Pass New Ones, to Address Violent or Disruptive Flash Mobs

In Cleveland and elsewhere, plenty of laws already exist to punish those who commit crimes, conspire to commit crimes, or incite others to do so.  Rather than perpetually amending those laws to include a growing list of electronic media, or resorting to measures like disrupting cell phone service, city officials ought to try less restrictive means to prevent mob violence, that don’t interfere with the freedoms of speech and assembly.

Targeting specific means of communication—from Twitter, to Facebook to Blackberry Instant Messenger, and more—will ultimately prove as ineffective as trying to keep youth under curfew, tear down billboards, or ban protest fliers.  Shut down one medium, and another will become the preferred means of communication.  And today, organizers can always resort to simple word of mouth to get their message out.

Even if the new Cleveland City Council measures become law, and prove constitutional in court—which they very well may not—these measures may have to be amended every time a new application or means of communication arises, in an endless game of tag, as the law inevitably lags behind social media innovation.

In addition, even prosecutions under well-known and established means of communication may be difficult:  Just how many characters on Twitter will suffice to demonstrate a clear intent to riot?  Will re-tweeting or forwarding someone else’s message constitute criminal conduct?  Which of the thousands of fans of a Facebook page will be deemed responsible for a given gathering?  Can merely pressing “Like” mean that one is inciting a riot?

For all these reasons, the focus on social networking in the new Cleveland ordinance seems impractical.  It may also be unconstitutional—for being too vague to give speakers and protesters fair notice, as the First Amendment requires, as to what is forbidden and what is not.

The “chilling effect” on constitutionally-protected speech here—a key concern of Supreme Court First Amendment doctrine—could be severe.  After all, protesters have used, and will continue to use social media to peaceably assemble to protest.  Remember, for instance, that social media helped bring thousands to Egypt’s Tahrir Square this spring to demand the ouster of an autocrat.

But if Cleveland and other cites pass anti-flash-mob laws like the ones described above, speakers may suffer a chilling effect on what they can say—especially if they fear that an event may unexpectedly turn violent, and that their own remark on Twitter or Facebook might be misconstrued, in retrospect, as somehow criminal.

As a rule, it’s better—not to mention more effective, and more First-Amendment-friendly—to target what people do, not what they say.  Thus, Cleveland and other cities ought to focus their ordinances upon their real concern, mob violence, and not on free speech.

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