When Asha Burwell fabricated the claim that she was beaten because of the color of her skin, two things followed. The first was the usual knee-jerk reaction from those who will believe whatever supports their tribe and worldview. The second was a prosecution in Albany County Supreme Court.

In 2016, defendant was charged in an 11-count indictment with assault in the third degree, harassment in the second degree and four counts of falsely reporting an incident in the
third degree for her involvement in an altercation and its aftereffects that occurred on a city bus bound for the State University of New York at Albany (hereinafter SUNY Albany) campus. The indictment alleged that defendant, knowing the information to be false, reported, via an emergency 911 call, that “she was ‘jumped’ on a bus by a group of males, that it was a racial crime, and that she was struck by boys and called a ‘nigger'” (count 4).

The indictment also set forth that defendant, knowing the information to be false, circulated – via social media and through an appearance at an event on the SUNY Albany campus – an allegation that she was the victim of a racially-motivated assault on a bus (count 7). After a jury trial, defendant was convicted of two counts of falsely reporting an incident in the third degree (counts 4 and 7).

Essentially, the conviction for two counts of falsely reporting resulted in conviction. One count related to her falsely reporting the crime to the police. The other, however, related to her falsely twitting of her victimhood. The former conviction was affirmed, but that question raised by the latter, the twitter count, was whether Burwell’s First Amendment right precluded conviction, even though her claim of victimhood was false.

The statute at issue, Falsely reporting an incident in the third degree, Penal Law § 240.50(1) (“B” misdemeanor), provides:

A person is guilty of falsely reporting an incident in the third degree when, knowing the information reported, conveyed or circulated to be false or baseless, he or she:

1. Initiates or circulates a false report or warning of an alleged occurrence or impending occurrence of a crime, catastrophe or emergency under circumstances in which it is not unlikely that public alarm or inconvenience will result;

If this seems to strike a “falsely shouts ‘fire’ in a crowded theater” note to you, it should, although it goes even further, spinning past “public alarm” into the cesspool of “inconvenience,” within which pretty much any claim of annoyance could fall. The defendant, nonetheless, was not nearly as impressed by the doctrine as many others on the twitters, the same twitters she employed to falsely spread her victimhood.

4. Defendant concomitantly argues that, even if her tweets were knowingly false, they are nevertheless protected by the First Amendment because there was no proof that the impact of
such speech presented a clear and present danger to the public (see Brandenburg v Ohio, 395 US 444, 447 [1969]). Because defendant is being prosecuted on the basis of false speech, rather than speech involving subversive political advocacy or speech designed to incite a riot (compare Penal Law § 240.08; People v Upshaw, 190 Misc 2d 704, 706-709 [NY City Crim Ct 2002]), Brandenburg and its progeny do not apply (compare United States v Alvarez, 567 US 709, 722 [2012]; see generally Tom Hentoff, Note, Speech, Harm, and Self-Government: Understanding the Ambit of the Clear and Present Danger Test, 91 Colum L Rev 1453, 1459 n 42 [1991]).

The New York Appellate Division, Third Department, agreed with the defense.

[I]nasmuch as this statute criminalizes a certain type of speech, namely false speech, the restrictions on speech are content-based, rather than time, place or manner limitations…. Absent certain historical categories which do not apply here (see United States v. Alvarez [2012]), even false speech is considered protected and, in that context, content-based restrictions are subject to “the most exacting scrutiny.” Under this exacting, or strict, scrutiny standard, governmental regulation of speech “is enforceable only if it is the least restrictive means for serving a compelling government interest.” “The First Amendment requires that the [g]overnment’s chosen restriction on the speech at issue be actually necessary to achieve its interest. There must be a direct causal link between the restriction imposed and the injury to be prevented.”

While the court’s approach to the First Amendment analysis was clear and direct, its conclusion was somewhat confusing.

We have no trouble finding that Penal Law § 240.50(1) is designed to address at least two compelling governmental interests—preventing public alarm and the waste of public resources that may result from police investigations predicated on false reports. However, when examining whether the statute uses the least restrictive means for serving those purposes, as applied to defendant, we reach the conclusion that the statute is impermissibly broad.

Rather than hold the statute unconstitutional, the court held only that it was “impermissibly broad” as applied,

More particularly, neither general concern nor the Twitter storm that ensued following defendant posting the false tweets are the type of “public alarm or inconvenience” that permits defendant’s tweets to escape protection under the First Amendment, and, therefore, the speech at issue here may not be criminalized.

Does this mean that while the statute otherwise remains valid, it doesn’t apply to false twits? Curiously, had Burwell merely told her friends the false story, it would have had at most a trivial impact. But an exceptionally inflammatory lie of a racial beating on social media is greatly amplified and has a grossly disproportionate impact on “public alarm.”*

To that end, although it was “not unlikely” that defendant’s false tweets about a racial assault at a state university would cause public alarm (Penal Law § 240.50[1]), what level of public alarm rises to the level of criminal liability? Indeed, United States v. Alvarez [Breyer, J., concurring] informs us that criminalizing false speech requires either proof of specific harm to identifiable victims or a great likelihood of harm.

How much hysteria and outrage on twitter would it take to reach the level of “a great likelihood of harm”?

Certainly, general concern by those reading defendant’s tweets does not rise to that level, nor does the proof adduced at trial, which established that defendant’s tweets were “retweeted” a significant number of times. In fact, because these “retweets” led to nothing more than a charged online discussion about whether a racially motivated assault did in fact occur, which falls far short of meeting the standard set forth in Alvarez [Breyer, J., concurring], we reach the inescapable conclusion that Penal Law § 240.50(1), as applied to defendant’s conduct, is unconstitutional.

This would appear to be acceptance of the secondary excuse, that it might have been a lie but it started  a discussion, that somehow makes false accusations giving rise to baseless hysteria and outrage social acceptable. Had the Third Department held the statute to be facially unconstitutional as overbroad, there would be no need to rationalize the ensuing “tweetstorm” for some amorphous level of harm or the validity of rationalizations in favor of false accusations.

Instead, Burwell’s conviction for falsely reporting to the police stands, while her falsely twitting is reversed, and it remains unclear what false speech on twitter gives rise to a crime and what does not.

*Note that the statute provides “public alarm or inconvenience” in the disjunctive, which the court glosses over in its quoted characterization of the type of false twits were involved.