While natural disasters such as Superstorm (née Hurricane) Sandy typically bring communities, regions, and the nation together in recovery and compassion, they also provide an opportunity for companies and individuals to say or do insensitive things that cause significant outrage. With looting and crime being the obvious despicable post-disaster actions, technology has opened countless additional avenues for misbehavior.
For instance, clothing brands Gap Inc. and American Apparel were both criticized for ostensibly taking advantage of the situation for their own pecuniary gain. American Apparel advertised a short 20% off sale “[i]n case you’re bored during the storm,” available only to online customers in states in the storm’s path. Similarly, Gap Inc. tweeted “All impacted by #Sandy, stay safe! We’ll be doing lots of Gap.com shopping today. How about you?” The online community’s responses to the opportunistic advertising were swift and harsh.
One individual used the crisis situation as an opportunity to post fake news updates about the storm during the height of its havoc. New York City hedge fund analyst and then-manager of Republican Christopher Wight’s campaign for the House of Representatives in New York Shashank Tripathi tweeted several false news stories prefaced with “BREAKING.” Many users and media sources retweeted the false information, adding further confusion to an already chaotic and tense situation in New York and surrounding areas. Tripathi has subsequently resigned as Wight’s campaign manager and issued an apology for his actions.
While few would dispute that Tripathi’s actions were unethical, there is some controversy as to whether they were, or should be, illegal. The First Amendment of the U.S. Constitution protects most forms of speech, including untruthful speech. However, U.S. Supreme Court precedent expressly excludes certain types of speech from constitutional protection. To take a famous example, Justice Oliver Wendell Holmes wrote that even “[t]he most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.”
In this column, I will first describe what Tripathi did during the storm and the public’s reactions to it. Then I will discuss the scope and limitations of the First Amendment’s protection of speech in this type of context. Finally, I will explain how a state law might constitutionally proscribe actions such as Tripathi’s, with the caveat that even such a narrowly tailored law still may not satisfy constitutional requirements.
False Tweets and Public Outrage
As then-Hurricane Sandy neared landfall, Twitter was abuzz with reports of the statuses of various areas in the hurricane’s path. Tweeting to over a thousand followers from his Twitter handle @ComfortablySmug, Tripathi was among the countless many tweeting about the impending storm. In the early evening, he was tweeting and retweeting real news about the storm, such as the closure of the Holland Tunnel. However, amid these tweets were also items of completely fabricated news, such as following:
The tweet about the NYSE being flooded was retweeted over 600 times, and even some media outlets, such as CNN and Weather Underground, picked up on it before it was eventually discredited as untrue. Although it is generally incumbent on journalists to verify their information before reporting on it, few would dispute that Tripathi was at least somewhat at fault for intentionally misleading his followers at such a crucial time, when many of those who read and believed his tweets were likely deciding how to best keep safe in the storm. Some have argued that despite Twitter’s being considered a news outlet, during times like these “[T]here’s not enough time for credible sources to sniff out the truth, and people get hurt.” When some, like Tripathi, apparently are intentionally tweeting false information, the situation becomes even worse.
Among those calling for punishment for Tripathi is New York City Councilman Peter Vallone, who has suggested that the District Attorney’s Office consider charging Tripathi with a criminal offense. Numerous Twitter users and bloggers have decried Tripathi’s actions, even after his public apology and resignation from Christopher Wight’s campaign. Others have criticized his actions and called for public shaming, but not criminal sanctions.
The First Amendment Protects Most Speech, Honest or Not
Though contemptible, Tripathi’s actions may be protected by the First Amendment. Some commentators have likened his actions to falsely shouting fire in a crowded theater, a well-known paraphrase of Justice Oliver Wendell Holmes’s opinion in Schenk v. United States. While the comparison to Tripathi’s tweets may seem apropos, the holding in that case was overruled fifty years after that case was decided in Brandenburg v. Ohio.
In Schenk, Justice Holmes formulated two phrases that have made their way into the vernacular. The first, which states that “[t]he most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic,” has become essentially synonymous with speech that falls outside the First Amendment’s protection. The second is “whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” The requirement of “clear and present danger” was whittled down over the subsequent decades, ultimately to be replaced with the phrase “imminent lawless action”—a more stringent and precise requirement.
As to false speech, the Supreme Court’s recent decision in United States v. Alvarez reinforces the First Amendment’s protection of even untrue statements. In that case, discussed in greater detail in this column by my Verdict co-columnist Julie Hilden, the Court struck down the Stolen Valor Act, which prohibited false claims of having received medals from the U.S. government, as violating the First Amendment. A majority of the Court held that false statements are not, for their falsity alone, excluded from First Amendment protection. Applying the standard of strict scrutiny—that is, requiring the government to prove that the law was necessary to serve a compelling governmental interest, and narrowly tailored to serve that interest—the majority found that the Act did not pass constitutional muster. The dissenters passionately disagreed.
The Court in Alvarez acknowledged that in each precedent where false speech was considered valueless (and thus not entitled to First Amendment protection), the speech at issue included not only a false statement, but also some legally cognizable harm, such as an invasion of privacy or an award of court costs. In Alvarez, the Court recognized that certain types of false speech are constitutionally punishable, such as false statements made to government officials, perjury, and false representations that one is speaking as or on behalf of a government official. The Court refused, however, to permit the government to enumerate specific types of false speech that are and are not permissible, likening such a listing to a rule of the dystopian society in George Orwell’s 1984.
In defamation cases, which involve false speech that causes actual harm to another, the intent of the actor is a relevant inquiry and can determine whether he or she may be liable. Most states today have abolished criminal liability for defamatory speech.
While none of these cases speaks directly to the situation of Tripathi and his false tweets, they may inform us as to how the First Amendment might apply to that type of situation. On one hand, the freedom of speech is one of the most valued freedoms in the United States; on the other hand, preventing individuals from willfully misleading others during times of emergency or crisis seems like a compelling state interest.
A Narrowly Tailored Law Might Constitutionally Prohibit This Type of Speech in the Future
Despite the expressed wishes of Councilman Vallone, it is unlikely that New York’s District Attorney can successfully charge Tripathi with a crime for his actions. Any law that places restrictions on speech based on its content—which includes restrictions based on whether the content is false—are subject to strict scrutiny. As I discussed above, such a law would have to be both necessary to serve a compelling governmental interest and narrowly tailored to serve that interest.
Admittedly, I am not an expert on New York criminal law, but any content-based restrictions on speech likely would not encompass Tripathi’s actions. A law that was sufficient narrowly written might prohibit “knowingly disseminating false or misleading information during an emergency situation, with the specific intent of causing confusion.” Such a construction is most likely to be upheld as being necessary to serve a compelling government interest, but it would still undoubtedly be challenged as unconstitutional.
I think the point to take away from this situation is that while some individuals might engage in reprehensible behavior at the expense of others, sometimes the most appropriate court in which to adjudicate the wrongs is the court of public opinion, or if the behavior at issue causes actual injury, the civil court system. Eschewing criminal punishment for these other remedies is a small price to pay for the ability to maintain our First Amendment freedoms.